VIJIARAGHAVA PILLAI Vs. PONNAMMAL

JUDGEMENT

(1.) In this case the plaintiff sued to recover possession of the land in question as purchaser from Ponnammal, whose interest in it was as widow of one Poongavana Gownden. It is admitted that his purchase was only of the widow's interest and could not bind the husband's estate. After the date of the plaintiff's sale-deed Ponnammal married again. Defendant 2, who is Poongavana Gownden's mother, contended that on Ponnammal's re-marriage the reversion to Poongavana Gownden's estate fell in to her and that the plaintiff's purchase was no longer of any effect. She and her alienee, defendant 4, contested the suit. The District Munsif made a decree for the plaintiff; but on appeal that was reversed by the Subordinate Judge who found as a fact that Ponnammal had married again after her sale to the plaintiff, disagreeing on that point with the District Munsif. There was a second appeal to this Court, which was disposed of by Odgers, J., as involving only a question of fact and therefore dismissed. The present appeal is against that decision.

(2.) It is urged for the plaintiff, who is the appellant here, that Ponnammal's re- marriage did not put an end to his rights in virtue of his purchase and that his rights continue until Ponnammal's death. It is not disputed that in the caste to which Ponnamnml belongs re-marriage of widows is permitted by custom, and the fact that Ponnammal married a second husband after her sale to the plaintiff cannot now be disputed. Nor is it disputed for the plaintiff that Ponnammal's interest in her first husband's estate as his widow would ordinarily come to an end with her re-marriage as with her death; but to that an exception is urged, viz., that her second marriage could not affect the plaintiff's rights as purchaser from her so as to cut them short before her death. It is well known that a Hindu widow's estate in her husband's property is in some ways more than a. life estate. But it is not an estate for life: it is an estate which determines either by her death or by her re-marriage or by surrender. Mr. Krishnaswami Aiyar for the plaintiff has urged before us that, if a widow's estate comes to an end by re-marriage, then that does not affect the rights of an alienee from her until her death any more than the surrender of her estate could do so. He asks us to apply to this case the analogy of a widow's surrender of her estate to the next reversioner. There is no question that, so far as this Court is concerned, it is well settled that a widow cannot alienate her interest in her husband's estate and then defeat that alienation by surrendering her interest in the estate to the next reversioner--Sub-bamma v. Subramananyam,1 Sundarasiva Rao V/s. Viyyamma2 and Singaram Chettiar v. Kalyanaundaram Pillai.s Mr. Krishnaswami Aiyar asks us to say that, if a widow cannot defeat her alienee by surrendering her estate to the next reversioner, likewise she cannot defeat her alienee by marrying a second time. I think that this argument from analogy is very unsafe. There are obvious distinctions between the position of a surrendering widow and of a re-marrying widow. A widow who surrenders her interest in her husband's estate to the next reversioner is none the less his widow: she remains a member of his family. But a widow who marries a second time is no longer in effect the widow of her first husband; she has left his family finally: she has become a member of another family. And we must remember, as has often been pointed out, that the right of a widow to surrender her interest in her husband's estate to the next reversioner depends upon judicial decisions, and Courts in adopting and approving and enforcing the results of such surrenders have felt it necessary to guard against this development of the law being put to fraudulent uses. They have felt it necessary to lay down that a widow cannot alienate her interest one day and take the proceeds and next day in collusion with the reversioner surrender her interest to him and so defeat her alienation. It is necessary that Courts should not allow a development of the law to which they have given countenance to be turned into an instrument of fraud. But the re-marriage of Hindu widows and its incidents are matters of custom or of legislation; and the Courts have no power to restrict such rights of re-marrirge or the incidents of re-marriage or to qualify them in any way. Moreover, as Mr. Venkatarama Aiyar has pointed out, it is one thing to say that a widow shall not be allowed by her surrender to cut short the effect of a grant, which she has herself made within her powers, and quite another thing to say that, when her own estate has come to an end by re-marriage, nevertheless something which she has carved out of that estate by grant shall somehow be prolonged for a further period. In my opinion this supposed analogy between a surrendering widow and a re-marrying widow is of very little help to us.

(3.) It is better for us to turn to the language of Section 2 of the Hindu Widows Re- marriage Act, which Mr. Krishnaswami Aiyar admits covers this case, although this is a case where a widow could re-marry by the custom of her caste. I agree with Mr. Krishnaswami Aiyar that we must be very careful in interpreting that section, not only because it imposes a forfeiture, but also because it is in itself an exception to the more general rule laid down in Section 5 of the Act. Section 2 provides: All rights and interests which any widow may have in her deceased husband's property by way of maintenance or by inheritance to her husband...shall upon her re-marriage cease and determine as if she had then died.