Section 2 of the Hindu Widows Re-marriage Act, 1856 applies only to limited estates held by Hindu widows and does not operate on property of which they are full or absolute owners.

JUDGMENT - Chandrachud, J.

1. Two important questions arise in this appeal : (1) Whether Section 2 of the Hindu Widows Re-marriage Act, 1856 (Act XV of 1856) hereinafter called "the Act of 1856" is restricted in its application to property in which Hindu widows have a limited estate and (2) whether Section 2 of the Act of 1856 is inconsistent with Section 14 (1) of the Hindu Succession, Act, 1956 (Act XXX of 1956) hereinafter called "the Act of 1956".

2. One Bhika Shirke died on the 13th of June 1956 leaving behind him his daughter Sindhu, who is the plaintiff and his widow Chandrabhaga, the 2nd defendant. On the 17th of June 1956, the Act of 1956 came into force. In October 1956, Chandrabhaga remarried. On the 16th of December 1958, she sold to the 1st defendant the property which she had inherited from her husband and of which she was possessed.

3. Sindhu filed the present suit in 1960 for possession of that property on the ground that her mother had forfeited her interest in it on the date of her re-marriage in 1956 and therefore, she had no right to sell the property to the 1st defendant.

4. The trial Court dismissed the suit holding that the 2nd defendant did not forfeit her interest in her husbands property on account of her re-marriage and, therefore, she could pass a valid title to the 1st defendant. The appeal filed by the plaintiff against that decision was allowed by the learned Assistant Judge, Poona, who held that the second defendant forfeited her right to her husbands property on her remarriage and that the alienation effected by her in favour of the 1st defendant was therefore void.

5. The 1st defendant has filed this appeal against that decree. The appeal came up for hearing before Vaidya, J., on the 31st of July 1970. As it involves important Questions of law on which there could be a difference of opinion, the learned Judge referred the appeal to a Division Bench.

6. The first question which falls for decision is whether Section 2 of the Act of 1856 governs only limited estates held by widows or whether it applies to properties held by them absolutely also. The section reads as follows:--

"All rights and interests which any widow may have in her deceased husbands 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 re-marry, only a limited interest in such property, with no power of alienating the same, 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".

7. It is clear that Section 2 governs (1) all rights and interests which a Hindu widow may have in her deceased husbands property by way of maintenance, (2) all rights and interests which she may have in her deceased husbands property by inheritance to him or to his lineal successors and (3) all rights and interests which she may have in her deceased husbands property 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. The section provides that the rights and interests of a Hindu widow in these three classes of properties shall cease upon her re-marriage and shall determine as if she had then died. As a consequence of this cessation of interest and the fictional death of the widow, the next heirs of her deceased husband or other persons entitled to the property on her death become entitled to succeed to that property.

8. Out of the three classes of property on which Section 2 operates, the first and third are limited interests --the former by necessary implication and the latter in terms. The interest of a Hindu widow in her husbands property by way of maintenance was always in the nature of a limited interest prior to the enactment of

Click Here to Read the rest of this document