MAKHANA KATANI AND ANR. Vs. THANESHWAR SARMA AND ANR.

JUDGEMENT

(1.) THE only question in this appeal is whether the plaintiff is untitled to inherit to the estate of one Golap, the brother of his mother. On the death of Golap, his property was inherited by his mother Mt. Seuti. She died in 1940 when the succession opened. Plaintiff claimed that he is the son of one Mt. Soala, admittedly, a sister of Golap, who predeceased her mother. The defendants in the action are the agnates of Golap and would be admittedly the next reversioners in case it is held that plaintiff is not the heir of Golap. According to them, the plaintiff was not the legitimate son of Mt. Soala and as such, was not, entitled to inherit to Golap, his mother's brother.

(2.) THE first Court held in favour of the defendants and dismissed the suit but the decision has been reversed by the lower appellate Court which held that the plaintiff was the legitimate son of Mt. Soala. The Court found that Mt. Soala belonged to the Katani caste and after she had become a widow, she was re -married to a Brahmin called Nancieswar, with whom she lived as his wife for about twenty -five years until Nandeswar died and plaintiff was born of that union. The Court further found that at the time of marriage of Nandeswar with Mt. Soala, defendant 2 gave her in marriage and that the proper ceremonies according to Hindu rites were performed. The contention of the learned Counsel for the appellants is that even if a widow's remarriage was permissible under the Hindu Widows Remarriage Act of 1850, it could not validate a marriage between a Katani woman, who was a Sudra, and a Brahmin husband. It is further submitted that at tire time when the succession opened, the defendants were the legal heirs of Golap and not the plaintiff and therefore interest once vested could not be divested. The answer to the contention on behalf of the respondents is that a marriage between a Sudra woman and a Brahmin is recognised under the Hindu Marriages Validity Act. The Act came into force in 1949, but it has retrospective operation. Section 3 of the Act provides that notwithstanding anything contained in any other law or in any text, rule or interpretation of Hindu Law or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or 'over to have been invalid' by reason of the fact that the parties thereto belonged to different religions, castes, sub -castes or sects.

(3.) HE appeal therefore is without any substance and must be dismissed. The decree of the earned Subordinate Judge should be upheld. In the circumstances, however, we will not make any order as to costs.