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CASE NO.: Appeal (civil)  1323 of 2008

PETITIONER: Cherotte Sugathan (Died through LR\022s) & Ors.

RESPONDENT: Cherotte Bharathi & Ors.

DATE OF JUDGMENT: 15/02/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 236 of 2004)

S.B. Sinha, J.

1.      Leave granted. 2.      Whether Section 2 of the Hindu Widow\022s 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 under :      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\022s 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 : \023In 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 1  and 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.\024

       In regard to the applicability of the 1856 Act, it was held :

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\023So far this case is concerned, according to us,  Section 24 of the Hindu Succession Act applies  and the plaintiff is entitled to succeed.\024

       It was directed :

\023In 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.\024

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 12.2.1979. 8.      Mr. Raghunath, learned counsel appearing on behalf of the  respondent, however, would support the judgment.   9.      Hindu Widow\022s 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 : \0232. Rights of widow in deceased husband\022s  property to cease on her re-marriage.\027All  rights and interests which any widow may have in  her deceased husband\022s 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.\024

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 : \0234. Overriding effect of Act.\027(1) Save as  otherwise expressly provided in this Act,-- (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 Act; (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

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with any of the provisions contained in this  Act.\024

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 : \02324. Certain widows remarrying may not  inherit as widows.\027Any 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.\024

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 : \023The 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.\024

       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\022s property either on the ground of unchastity or  remarriage.         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\022s property. 15.     Yet again this Court, in Velamuri Venkata Sivaprasad (Dead) by LRs.  v. Kothuri Venkateswarlu (Dead) by LRs & Ors. [(2000) 2 SCC 139], held : \02352. 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

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not the widow\022s 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\022s 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 Defendant 1.\024           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.