ANARAJIA Vs. TENGARI KABAR

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff prayed for redemption of a mortgage with regard to properties described in schedule B of the plaint. It is alleged by the plaintiff that the properties belonged Originally to Bhadai Ram Kahar, and after his death Musammat Anarjia gave the properties to defendant No. 2 in usufructuary mortgage by a registered document dated the 11th April, 1950. The plaintiff further alleged that the widow, Musammat Anarajia, had remarried one Balkhira Kahar of Gobardhanpur in sagai form on some date prior to May, 1953, and there was consequently forfeiture of the widow's estate, and the plaintiff, who is the next reversioner of Bhadai Ram Kahar, was entitled to sue for redemption of the mortgaged properties. The suit was contested by the defendants on the ground that defendant No. 1 had not remarried Balkhira Kahar and that she was still living in the house of her deceased husband Bhadai Ram Kahar. The lower appellate court has come to a finding that defendant No. 1 has remarried Balkhira Kahar after the death of her husband Bhadai Ram Kahar arid there was forfeiture of the widow's estate. It has granted a decree to the plaintiff for redemption and delivery of possession of the properties.

(2.) On behalf of defendant No. 1 who has presented this appeal the argument put forward by learned Counsel is that the finding of remarrige is not a finding in accordance with law because it is not supported by proper evidence. Learned Counsel took us through the judgment of the lower appellate court and of the trial court on this point and submitted that there is no direct evidence to show that defendant No. 1, Musammat Anarajia, remarried after the death of her husband Bhadai Ram Kahar. We do not accept the submission of learned Counsel as correct. The trial court has relied upon the evidence of P. W. 4, Janki Barhai, and P. W. 5, Fauzdar Barhai, in order to support its finding that Musammat Anarajia had remarried Balkhira Kahar sometime before the year 1953. There was also the circumstance that defendant No. 1 was pregnant at the time of the hearing of the suit; and she was wearing a nose-pin which also indicated that she had a husband at the time when the suit was heard in the trial court. Taking into account the oral evidence and the circumstances of the case both the lower courts have reached the conclusion that defendant No. 1 has remarried Balkhira Kahar after the death of her first husband. In our opinion this finding of fact readied by the lower courts is not vitiated by any error of law and it is binding on the High Court in second appeal.

(3.) It was submitted by learned Counsel for the appellant that in view of the provisions of Section 14 of the Hindu Succession Act, and on the basis of the decision of a Full Bench of this High Court in Harak Singh v. Kailash Singh, AIR 1958 Pat 581, the widow's estate of defendant No. 1, Musammat Anarajia, became an absolute estate, and the reversioner has no right to redeem the properties or to bring the suit for redemption as against defendant No. 2. The argument addressed on behalf of the appellant would have been a good argument had it not been for the fact that defendant No. 1 had remarried before the corning into force of the Hindu Succession Act, that is, Act No. 30 of 1956. It is well established by authorities that in the case of remarriage of a Hindu widow the estate which she has inherited from her deceased husband is forfeited and title of the widow to that estate is lost. That is the view expressed by a Division Bench of this High Court in Sheobaran Mahto v. Mt. Bhogea, AIR 1918 Pat 590 (1) in which case the decision of a Full Bench of the Calcutta High Court in Matungini Gupta v. Ram Rutton Roy, ILR 19 Cal 289 was approved and followed. The same view has been expressed by a Full Bench of the Bombay High Court in Vithu v. Govinda, ILR 22 Bom 321 in a judgment delivered by Ranade, J. In a later Patna case, Mt. Suraj Jote Kuer v. Mt. Attar Kumari, AIR 1922 Pat 378, the view taken by the earlier Division Bench was affirmed and it was held that even in a case where the widow remarriage is recognised by the custom of the caste there is forfeiture of the widow's estate unless it could be established affirmatively that recognition of the widow remarriage in a particular caste carries with it the right to retain the deceased husband's estate. It is true that the Allahabad High Court has taken a different view on the point, but the cursus curias of the Patna High Court is that even in a case where the widow is entitled by the custom of the caste to remarry, there is a divesting of the estate on the remarriage of the widow. Reference may be made to Section 2 of Act XV of 1856, which reads as follows :-- "All rights and interests which any widow may have in her deceased husband's property... shall upon her remarriage cease and determine as if she has then died." There is no reason to suppose that the Legislature intended that the section should apply only to those Hindu widows who were permitted for the first tune by the statute to remarry. The language" of Section 2 of the Act is general and plainly extends to all Hindu widows irrespective of the caste to which they belong and to the special customs of such castes. That was the view expressed by a Full Bench of the Bombay High Court in ILR 22 Bom 321 where it was held that under Section 2 of the Widow's Remarriage Act (Act 15 of 1856), a Hindu widow belonging to a caste in which remarriage has been always allowed, who has inherited property from her son, forfeits by her remarriage her interest in such property in favour of the next heir of the son. It was pointed out by the Full Bench in that case that the variation between the preamble of the Act and the enacting clauses was not the result of any oversight, but that the Legislature deliberately used the more general language in Section 2, because it found that whereas the custom of prohibiting remarriage obtained in certain castes and did not obtain in others, in the matters of forfeiture by the widow of all interests in her first husband's estate there was no such divergence. Apart from the application of Section 2 of Act 15 of 1856, there will still be forfeiture of the estate of Musammat Anarajia in the present case, because the rule of forfeiture is based upon the general principle of Hindu law. Now the reason why the widow takes the life interest of her deceased husband when there is no male heir is that she is the surviving portion of her husband, and if there is re-marriage the fiction upon which the right over the husband's estate is founded disappears and there is a forfeiture of the widow's estate.