LAKSHMI AMMAL AND ORS. Vs. THANGAVEL ASARI
LAWS(MAD)-1953-1-13
HIGH COURT OF MADRAS
Decided on January 05,1953

Lakshmi Ammal And Ors. Appellant
VERSUS
Thangavel Asari Respondents

JUDGEMENT

Subba Rao, J. - (1.) THE second appeal raises a question of the interpretation of Section 2, Hindu Widows Remarriage Act (15 of 1856), hereafter called the Act, and its application to the facts of the case. The facts are simple & are not in dispute. They may be briefly stated. One Mookan Asari, the elder brother of the plaintiff and the first husband of the defendant died. Alter his death, the plaintiff Instituted O.S. No. 239 of 1944 on the file of the Court of the District Munsif of Ambasamudram claiming that the properties were joint family properties and that he was entitled to the same by survivorship. The defendant contended that the properties were the separate properties of Mookan Assari and that she succeeded to the same as his widow. The suit was ultimately compromised and Ex. A. 6 dated 11 -6 -1945 was the compromise decree made therein. Under the compromise decree, the properties described in Schedule 1 annexed to that decree were given absolutely to the plaintiff and the properties particularised in Schedule 2 annexed thereto were given absolutely to the defendant. The plaintiff and the defendant were put in possession of the properties allotted to their shares. After Mookan Asari's death on 28 -10 -1943, the defendant married one Somasundar ram Asari on 24 -9 -1945, The plaintiff filed O.S. No. 323 of 1946 on the file of the District Munsif, Ambasamudram, for recovery of possession of the items of property given to the defendant under the compromise decree on the ground that she forfeited all her rights in the said properties under the Act by reason of her second marriage. The learned District Munsif held that the defendant did not forfeit her rights to the properties given, to her under the compromise decree by reason of her second marriage, whereas on appeal the District Judge held contra. The result was that the suit was decreed with costs throughout. The defendant preferred the above appeal.
(2.) AT the outset it may be convenient to consider what would have been the legal position apart from the Act if the widow had died and the succession opened. The plaintiff having been a party to the compromise decree and taken a benefit thereunder would have been estopped from questioning the binding nature of the decree. As the terms of the decree were, clear and unambiguous and the parties thereto got absolute interest in the properties allotted to their respective shares, the plaintiff could not have questioned the defendant's absolute interest in the plaint schedule properties. The plaintiff and defendant would have been bound by the terms of the decree. It is not necessary to speculate what would have been the position if a person other than the plaintiff was the nest reversioner . Would the provisions of the Act make any difference? The governing provisions are Sections 2 and 5 which read: Section 2: 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 or to his lineal successors, or by virtue of any Will or testamentary disposition conferring upon her, without express permission to remarry, 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; end the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same. Section 5: Except as in the three preceding sections is provided, a widow shall not, by reason of her -re -marriage forfeit any property or any right to which she would otherwise be entitled; and every widow who has remarried shall have the same rights of inheritance as she would have had, had such marriage been her first marriage. Learned counsel for the respondent relying upon the provisions of the aforesaid sections contended that the defendant forfeited her rights in the properties given to her by reason of her re -marriage. His argument involved four steps: 1. Under the compromise decree the properties allotted to the defendant were in virtue of her pre -existing title; 2. She therefore came into possession of her husband's property by inheritance. 3. If she secured the properties by inheritance from her husband, the quantum of interest she possessed therein is Immaterial for the application of the provisions or Section 2 of the Act.
(3.) EVEN if she had got an absolute interest under the compromise decree, the compromise to so far as it gave her an interest beyond her lifetime would not bind the plaintiff and the property as there could not be an estoppel against the statute. It may be useful at this stage to construe the relevant provisions of the Act unhampered by the facts of the case. A combined reading of Sections 2 and 5 indicates that the forfeiture of the property by a widow on re -marriage is only confined to the category of cases detailed in Section 2, Under Section 2 she forfeits her rights only in her husband's property which she is entitled to by way of maintenance, or by inheritance or by virtue of any will. In the case of a will she does not forfeit if under the will she is authorised to remarry or an absolute interest is conferred on her. The words "shall upon her remarriage 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", afford the clue to the scope of the section. They indicate that the interest contemplated by the section is confined or limited to her lifetime. The section will not apply to an absolute interest legally acquired by the widow. This interpretation was accepted by Rajamannar J. as he then was in - - 'Bangaru Beddi v. Mangammal', : AIR 1947 Mad 163 (A). After reading the provisions of Section 2 of the Act, the learned Judge said as follows; "If, is clear that this section has no effect on property belonging to the widow absolutely on the date of the remarriage. The rights and interests which she may have in her deceased husband's property by way of maintenance obviously refer to recurring rights as for example to payment of maintenance by the enforcement of a charge on her deceased husband's property. In the case of wills and other testamentary dispositions it is only the limited interest that ceases and determines . The wordy 'as if the had then died' supply the criterion for adjudicating on the rights and disabilities of the widow on remarriage. All the results which would follow the remarriage are results which would ensue if she had died on the date of the remarriage. In other words, if she had only a limited and life interest then that would cease; but if she had an absolute estate that would not cease." I respectfully agree with the aforesaid observations. 4. But this would not conclude the point against the respondent for his contentions, as stated above, namely, that under the compromise decree the defendant secured her rights which she acquired by inheritance to her husband and that the decree in so far it gave her absolute interest would not bind him, require to be countered. In support of his contention that a title conferred under a compromise decree is only an affirmation of a pre -existing the, the learned counsel appearing for the respondent cited before me a long catena of cases. I shall briefly deal with some of them. The leading case on the point is - -' Rani Mewa Kuwar v. Rani Hulas Kuwar",, 1 Ind. App. 157 (B). The facts there were: Immovable property partly situated in Rohilcund and partly in Oudh belonged to the common ancestor of the appellant and the respondent. By a deed of compromise they agreed to divide it in certain proportions, and the agreement was carried out in Rohilcund but not in Oudh, where the respondent was, and continued in possession. At the end of nine years from the date of the deed of compromise, the appellant sued for possession of her share of the property in Oudh. The Judicial Committee held that the claim rested on a title to the land acknowledged and defined by the contract and therefore the suit for possession was within time. The passage relied upon is found on p. 166 of the report, and it reads: "The compromise is based on the assumption that there was an antecedent title of some kind in the parties and the agreement acknowledges and defines what that title is." I cannot understand the said statement as laying down a proposition of law that under all circumstances a title acknowledged under a compromise must necessarily refer to the title asserted. There may be cases where the conflict of claims may be resolved by a compromise creating a new root of title. Indeed the decision of the Judicial Committee in - - Mt. Hiran Bibi v. Mt. Sohan Bibi', : AIR 1914 PC 44 (C), is an illustration of the other class of cases. There, the widow of a Hindu, adopted a son but remained in possession of the property of her husband. The adopted son died before her. On the death of the widow, the widow of the adopted son succeeded to her, whereupon one of the daughters of the original owner brought a suit for her share, of the property belonging to her father, questioning the adoption. The suit was compromised. In a subsequent suit a daughter of the adopted son challenged the compromise decree on the ground that her mother had no power to come to a compromise as it amounted to an alienation. The Judicial committee held that the compromise was in no sense of the word an alienation but a family settlement in which each party took a share of the family property by virtue of the independent title which was to that extent and by way of compromise admitted by the other parties and therefore binding on them.;


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