important point
The Succession Act has an overriding effect and shall prevail over the Hindu Widow’s Re-marriage Act.

judgment

S.B. Sinha, J. —

1.Leave granted.

2.Whether Section 2 of the Hindu Widows 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 Widows 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 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.”

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 12.2.1979.

8.Mr. Raghunath, learned counsel appearing on behalf of the respondent, however, would support the judgment.

9.Hindu Widows 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 husbands property to cease on her re-marriage. All rights and interests which any widow may have in her deceased husbands property by way of maintenance, or by inheritance to her husband to his lineal successors, or by virtue of any will or testamentar