HAR KISORE SEAL Vs. THAKURDHAN BAISHNAB

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of possession and declaration of title to lands and we deal with only one point in this case. The question which arises is this. It is admitted that the property which is the subject-matter of the suit belonged to a man of the name of Madan. The plaintiffs-appellants are purchasers from the daughter's sons of the grandfather of Madan. The defendants claim under purchase from the mother of Madan. Madan the son, died admittedly after the re-marriage of his mother. Now, the question arises which of the parties has acquired title by their purchase; and this depends upon the question whether the daughter's sons of the grandfather of Madan were the heirs of Madan or whether Madan's mother was his heir Both Courts have found in favour of the latter alternative and accordingly dismissed the suit and the appeall The question, therefore, which We have to decide is whether or not Madan's mother, who is prima facie his heir under the Hindu Law, was incapable of inheriting by reason of the second marriage. The learned Judges of the two lower Courts have decided the case after having referred to two decisions, one of this Court, namely, the case of Akorah Sooth V/s. Boreanee 11 W.R. 82 : 2 B.L.R. A.C.J. 199 : 4 Mad. Jur. 286 : 1 Ind. Dec. (N.S.) 781 and the other, a Full Bench decision of the Bombay High Court, namely, the case of Basappa V/s. Rayava 29 B. 91 (F.B.) : 6 Bom. L.R. 779. The learned Vakil for the appellants has sought to distinguish these decisions on the ground that they deal with cases governed by the Widow's Re-Marriage Act, XV of 1856, and his contention is this that the Act was passed for the purpose of removing a bar or disqualification; that if there is no bar to a re-marriage then the Act does not apply and that such is the case here according to the evidence which has been accepted, that widow re-marriage was permissible amongst the caste to which Madan belonged.

(2.) On the other hand, it is contended for the respondent that the Act is of universal application and authority is relied upon in support of the respective contentions of both sides. In our opinion it is not necessary to decide this point; whatever view we accept as regards the, argument addressed to us on this point, this appeal must fail.

(3.) It is conceded that if the Act applies then the decision of this Court to which we have referred is conclusive on the point which is how before us. We are of opinion that chat decision is also an authority in favour of the respondents and against the appellants even on the assumption of the appellants argument that the case is not one under the provisions of that Act, because, in our opinion, it must be taken that, apart from any special provisions of that Act, it was decided in that case that a mother may inherit from her son after her re-marriage, assuming that the son had died after her re-marriage. It has thus been held that under the general Hindu Law the widow is entitled to succeed to the estate of her son. That case was followed by a Full Bench of the Bombay High Court and we agree in the decision of the learned Chief Justice in that case, when he states that whatever might have been his view, had the matter been uncovered by authority it would (in his opinion) be wrong to disregard a rule affecting; rights of property, established as far back as 1868 by the decision of a Full Bench of the Calcutta High Court in the else of Akorah Sooth V/s. Boreanee 11 W.R. 82 : 2 B.L.R. A.C.J. 1999 : Mad. Jur. 286 : 1 Ind. Dec. (N.S.) 781.