Remarriage of a Hindu widow after the commencement of the Hindu Succession Act, 1956 does not divest her of the estate inherited from her husband.

1. The plaintiffs suit was dismissed on the ground that the widow of his brothers son was not made a party in the suit. His appeal before the lower appellate court was also dismissed on the same ground. The present appellants are the heirs of the plaintiff, since dead.

2. One Hari Mahto had three sons, namely, Dilo Mahto (plaintiff), Khudu Mahto and Tulsi Mahto. The defendant-respondents are the sons of Khudu Mahto who is dead. Tulshi Mahto died leaving behind a son Nanku Mahto in 1356 fasli. Nanku Mahto also died sometimes in the year 1960 leaving behind his widow named Rukmini Devi. According to the plaintiff the three sons of Hari Mahto separated in mess and business long time back but jointly cultivated their lands until 4-4-1959 when there was an amicable partition by metes and bounds of the ancestral properties between the plaintiff, the defendants and Nanku Mahto. The plaintiff claimed that on the death of Nanku Mahto in 1960 he had inherited the share of Nanku Mahto as his sole surviving legal heir under the Hindu Succession Act, 1956 to the exclusion of the defendants. It was alleged that the defendants had dispossessed the plaintiff from the suit lands hence the suit for declaration of title and recovery of possession.

3. According to the defendants there was no partition as alleged by the plaintiff-appellant. Tulshi Mahto died in a state of jointness with the defendants and in 1959 Dilo Mahto the plaintiff got certain documents fabricated to show separation between himself and the contesting defendants. The defendants claimed that Nanku Mahto had died in a state of jointness with them, therefore, Nankus interest in the joint family properties devolved upon them by survivorship. Defendants further objection was that Nanku Mahto had been married to Rukmmi Devi who had remarried after the death of Nanku Mahto in 1960 with one Chandar Mahto and this Rukmini Devi not being made a party in the suit, the suit was not maintainable.

4. The trial court held that Rukmini Debi was a necessary party and in her absence the suit was not maintainable and, therefore, dismissed the suit. The trial court also found that there had been a partition of the ancestral properties as alleged by the plaintiff and Nanku Mahto had died in a state of separation from the plaintiff and the defendants and that the widow of Nanku Mahto, namely, Rukmini Debi was alive. All these findings have been affirmed by the lower appellate court.

5. Mr. S.R. Ghosal, learned counsel appearing on behalf of the appellants submitted that Rukmini Debi widow of Nanku Mahto was divested of the properties which she had inherited on her remarriage and, therefore, she was not at all a necessary party in the suit. The question for consideration is as to whether after the passing of the Hindu Succession Act, 1956 a Hindu widow is divested of the estate inherited by her from her husband on account of remarriage.

6. The Hindu Widows Remarriage Act, 1856 had legalised the remarriage of a Hindu widow but had the effect of divesting the estate inherited by her as a widow. By her second marriage she forfeited the interest taken by her in her husbands estate and it passed on to the next heirs of her husband as if she was dead. The Hindu Widows Remarriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956 but S.4 of the latter Act has an overriding effect and in effect abrogates the operation of the Hindu Widows Remarriage Act, 1856. According to Sec.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. Women occupied a very dependant position in a Hindu family and her rights to hold and dispose of properties were limited. Their status had to be fully recognised in the modern times of social emancipation and equality and in conformity with the rights guaranteed in the Constitution. The Succession Act so