DURGA PRASAD Vs. KHUDDO

JUDGEMENT

(1.) The facts of this case are as follows: On the death of his father Gajadhar, his son, Ghurau, succeeded to the property which is the subject matter of this litigation. He died in the mon February, 1904, leaving a widow, Musammat Thakur Dei, and a mother, Musammat Khuddo. The parties belong to the Kasodhan caste, and according to the custom of this caste a widow is entitled to re-marry. Musammat Thakur Dei did re-marry. She, on the 3 of September 1904, transferred the interest which she derived from her husband in the property by gift to the plaintiffs. On the same day Musammat Khuddo sold the same property to Lachhman Prasad, defendant, second party, and he in his turn mortgaged the property in favour of the defendants 3 and 4. The main contention in the Court below and before us was that Musammat Thakur Dei, by reason of her re-marriage, forfeited her interest in her husband's property under the provisions of Section 2 of Act XV of 1856. Another point has been raised before us in this appeal, to which we shall presently refer. This question has come before this Court on several occasions. In the case of Har Saran Das V/s. Nandi (1889) I.L.R., 11 All., 330 it was decided by Straight and Brodhurst, JJ., that a widow belonging to the sweeper caste, in which there is and in 1856 there was, no obstacle by law or custom against the re-marriage of widows, did not by marrying again forfeit her interest in the property left by her first husband. This decision was followed in the case of Dharam Das V/s. Nand Lal Weekly Notes, 1889, p. 78 and again in the case of Ranjit V/s. Radha Rani (1898) I.L.R., 20 All., 476. In the last-mentioned case, Blair and Aikman, JJ., stated in their judgment that in addition to the cases to which we have referred there were several unreported cases in which the decisions followed the decision in Harsaran Das V/s. Nandi. The learned Judges say: "We see no reason to doubt the soundness of those decisions, which form, as far as we know, a consistent curses curia in this Court." It has been pointed out to us that the decisions of the Bombay and Calcutta High Courts conflict with the decisions of this Court, but in view of the fact that the question has been determined by at least four Judges of this Court, we do not think that we should express any doubt upon the correctness of those decisions by sending, as we are asked to do, this case for determination to a larger Bench. The case is governed by those decisions and we must so hold.

(2.) The remaining question arises upon the fourth ground of appeal. It is there alleged that the appellants admittedly paid mortgage debts due by Musammat Thakur Dei's husband at a time when they were interested in their payment and which the respondents were bound to pay and that therefore the appellants were entitled to be reimbursed the amount so paid.

(3.) We think that the learned District Judge deals in a reasonable way with this question. He says: "Lachman did not act on behalf of the plaintiffs, but as of his own right and denying the plaintiffs title. If he had paid any of the deceased's creditors, he must recover from them and refund to the mortgagees what he borrowed from them. Neither he nor they (mortgagees) have any right to keep the plaintiffs out of possession or to burden the estate with a mortgage against the will of the latter. The plaintiffs, no doubt, will have to pay off the debt due from the deceased, but they may prefer to do so by some other arrangement and I see no justice in forcing them to abide by the result of an arrangement made by an enemy."