LAKSHMI AMMAL AND ORS. Vs. THANGAVEL ASARI

JUDGEMENT

(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 .

(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.