(Arising out of SLP (C) No. 236 of 2004)
S.B. Sinha, J.-
1Whether Section 2 of the Hindu
Widow s Re-Marriage Act, 1856 would apply to the facts of the present
case is the question in this appeal.
3. The fact involved herein is as
The properties in dispute belonged to one Sri Pervakutty. He had three
sons and two daughters, namely, Sugathan, Surendran, Sukumaran @ Soman,
Soumini and Karhiayani. He allegedly executed a will on 11.10.1975
bequeathing the said properties in favour of his sons. In the said Will,
provisions were allegedly made for payment of monthly allowance to the
wife of Sri Pervakutty, defendant No.3 (since deceased) as also right of
residence in the house situated therein. Sri Pervakutty died on
20.10.1975. Sukumaran died on 2.8.1976.
4. First respondent is his widow.
First respondent remarried one Elambilakkat Sudharkaran. Sudhakaran died
on 12.9.1979. She filed a suit on 31.12.1985 for partition claiming
1/3rd share in the suit property. Appellant herein, inter alia,
contended that she, in terms of Section 2 of the Hindu Widow s
Re-marriage Act, 1856, having ceased to have any right in the properties
inherited by her from her husband Sukumaran, the suit was not
maintainable. Respondent Nos. 2 and 3, the daughter of Sri Pervakutty,
inter alia, raised a contention that the purported Will dated 11.10.1975
was not a valid one.
5. By a judgment and order dated
31.3.1992, the said suit for partition was decreed declaring 1/3rd share
in the suit properties in favour of the first respondent. It was opined
that since the testator bequeathed the tenancy right as contained in
item No.2 of the schedule, the same was available for partition.
Appellants preferred an appeal thereagainst. Respondent Nos.2 and 3
(defendants No. 4 and 5) also preferred separate appeals.
6. By reason of the impugned
judgment, the High Court allowed the appeals preferred by the respondent
Nos. 2 and 3 holding :
In this case, the plaintiff has claimed succession on the basis of Will.
If that be so, the lower court was correct in holding that Section 23 of
the Hindu Succession Act is not applicable to defendants 1and 2. But if
the succession is not on the basis of Will, then defendants 1 and 2 will
be entitled to the benefit of Section 23 of the Hindu Succession Act.
In regard to the applicability of
the 1856 Act, it was held :
So far this case is concerned, according to us, Section 24 of the Hindu
Succession Act applies and the plaintiff is entitled to succeed.
It was directed :
In the above view of the matter, the
appeals are disposed of as follows :
The case is remanded to the lower
court to frame issue regarding the validity of the Will and to give an
opportunity to the parties to adduce evidence regarding the same and
decide the issue whether the Will is valid or not. The other findings in
the judgment are upheld except the finding regarding the building house
in Item No.1 of A schedule. If the court below takes the view that the
Will is not valid, then the contention of defendants 1 and 2 regarding
residence in the building house should be considered again.
7. Mr. K. Rajeev, learned counsel
appearing on behalf of the appellant, in support of the appeals, would
submit that keeping in view the provisions of Section 2 of the 1856 Act,
Respondent No.1 could not have been held to have any right in the
properties inherited by her from her husband as she remarried on
8. Mr. Raghunath, learned counsel
appearing on behalf of the respondent, however, would support the
9. Hindu Widow s Remarriage Act was
enacted to remove all legal obstacles to the marriage of Hindu widows.
Section 1 of the said Act encompasses within its fold the said legal
policy. Section 2 reads as under :
2. Rights of widow in deceased
husband s property to cease on her re-marriage. 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 to his lineal successors,
or by virtue of any will or testamentary disposition conferring upon
her, without express permission to re-marry, only a limited interest in
such property, with no power of alienating the same, shall upon her
re-marriage cease and determine as if she had then died; and the next
heirs of her deceased husband, or other persons entitled to the property
on her death, shall thereupon succeed to the same.
10. Applicability of the said
provision must be tested having regard to the provisions contained in
Hindu Succession Act, 1956. Section 4 of the Act provides for the
overriding effect of the Act stating :
4. Overriding effect of Act. (1) Save as otherwise expressly provided in
(a) any text, rule or interpretation
of Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of this Act, shall cease to have
effect with respect to any matter for which provision is made in this
(b) any other law in force
immediately before the commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the provisions
contained in this Act.
11. The Act brought about a sea
change in Shastric Hindu Law. Hindu widows were brought on equal footing
in the matter of inheritance and succession along with the male heirs.
Section 14(1) stipulates that any property possessed by a female Hindu,
whether acquired before or after the commencement of the Act, will be
held by her as a full owner thereof. Section 24, as it then stood, reads
as under :
24. Certain widows remarrying may not inherit as widows. Any heir who is
related to an intestate as the widow of a pre-deceased son, the widow of
a pre-deceased son of a pre-deceased son or the widow of a brother shall
not be entitled to succeed to the property of the intestate as such
widow, if on the date the succession opens, she has remarried.
12. Upon the death of Sukumaran, his
share vested in the first respondent absolutely. Such absolute vesting
of property in her could not be subjected to divestment, save and except
by reason of a statute.
13. Succession had not opened in
this case when the 1956 Act came into force. Section 2 of the 1856 Act
speaks about a limited right but when succession opened on 2.8.1976,
first respondent became an absolute owner of the property by reason of
inheritance from her husband in terms of sub-section (1) of Section 14
of the 1956 Act. Section 4 of the 1956 Act has an overriding effect. The
provisions of 1956 Act, thus, shall prevail over the text of any Hindu
Law or the provisions of 1856 Act. Section 2 of the 1856 Act would not
prevail over the provisions of the 1956 Act having regard to Section 4
and 24 thereof.
14. The question posed before us is
no longer res integra. In Chando Mehtain & Ors. v. Khublal Mahto &
Ors. [AIR 1983 Patna 33], the Patna High Court opined :
The Hindu Widows Remarriage Act, 1856 has not been repealed by the Hindu
Succession Act, 1956 but Section 4 of the latter Act has an overriding
effect and in effect abrogates the operation of the Hindu Widows
Remarriage Act, 1856. According to Section 4 of the Hindu Succession Act
all existing laws whether in the shape of enactments or otherwise shall
cease to apply to Hindus in so far as they are inconsistent with any of
the provisions contained in this Act.
In Kasturi Devi v. Deputy
Director of Consolidation [AIR 1976 SC 2595], this Court
categorically held that a mother cannot be divested of her interest in
the deceased son s property either on the ground of unchastity or
Kerala High Court, in Thankam v.
Rajan [AIR 1999 Kerala 62], held that remarriage of the wife cannot
be a ground for her loosing right to succeed to her deceased husband s
15. Yet again this Court, in
Velamuri Venkata Sivaprasad (Dead) by LRs. v. Kothuri Venkateswarlu
(Dead) by LRs & Ors. [(2000) 2 SCC 139], held :52. Incidentally,
Section 24 of the Succession Act of 1956 placed certain restrictions on
certain specified widows in the event of there being a remarriage; while
it is true that the section speaks of a pre-deceased son or son of a
pre-deceased son but this in our view is a reflection of the Shastric
law on to the statute. The Act of 1956 in terms of Section 8 permits the
widow of a Hindu male to inherit simultaneously with the son, daughter
and other heirs specified in Class I of the Schedule. As a matter of
fact she takes her share absolutely and not the widow s estate only in
terms of Section 14. Remarriage of a widow stands legalised by reason of
the incorporation of the Act of 1956 but on her remarriage she forfeits
the right to obtain any benefit from out of her deceased husband s
estate and Section 2 of the Act of 1856 as noticed above is very
specific that the estate in that event would pass on to the next heir of
her deceased husband as if she were dead. Incidentally, the Act of 1856
does not stand abrogated or repealed by the Succession Act of 1956 and
it is only by Act 24 of 1983 that the Act stands repealed. As such the
Act of 1856 had its fullest application in the contextual facts in 1956
when Section 14(1) of the Hindu Succession Act was relied upon by
We respectfully agree with the said
view.22. For the reasons aforementioned, we do not find any infirmity in
the judgment of the High Court. The appeal, therefore, is dismissed
without any order as to costs.
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