The facts of the case are not now in dispute as they have been settled by concurrent findings of the Courts below. The first appellant in this second appeal purchased through his guardian, the second defendant, a house which is the subject-matter of the suit under a sale deed of nth September, 1943, from Alamelu, the widow of one Muthuvelu. The plaintiff is a rival claimant to the same house under a purchase from the brother of Muthuvelu, one Sabapathi Padayachi. It has now been found by the Courts below that Sabapathi and Muthuvelu were undivided brothers and that on the death of Muthuvelu on 17th August, 1943, the property in the suit would have in the usual course devolved on Sabapathi but for the claim of the defendants under the sale deed executed by Alamelu in 1943 in their favour. The right is now confined to the right of the widow under section 3(2) of the Hindu Women’s Rights to Property Act, 1937. It has also been found by the Courts below that at the time of the death of her husband, Alamelu was leading an unchaste life and was living in adultery with a person at Kumbakonam. The claim of the defendants based on the Act was negatived by the Courts below on the ground that by reason of the unchastity which had been established in the case, the widow was disqualified from acquiring an interest in the property under the Act.

Basing the contention on the opinion of Mr. Srinivasa Ayyangar at page 722 of the 10th edition of Mayne’s Hindu Law, it is contended on behalf of the appellants that under section 2 of the Act, the rule of Hindu law that an unchaste widow is disqualified from inheriting her husband’s estate has been abrogated and therefore the view taken by the Courts below is erroneous.

It was also argued that even if this view were not correct, as section 3(2) of the Act confers upon the widow an unrestricted right to take the property of the husband in the same interest as the husband himself had, there is no room for importing into the Act any restriction such as the one based on the ground of unchastity. The disqualification to succeed to an estate based on unchastity is confined under Mitakshara law to the case of a widow succeeding to her husband’s estate when the husband leaves self acquired or separate property and the disqualification does not extend to other female heirs and to succession to stridhana property. The point for consideration would therefore be, whether the disqualification recognised under the Mitakshara law in the case of succession to a husband’s estate by the widow based on the ground of unchastity, would extend to the interest, which the widow takes in the joint family property under section 3 (2) of the Act. Though we have heard arguments on the question at length, we think that as there is no decided case throwing light upon the question and as the question is an important one, it is necessary that this should be settled by a Full Bench. We therefore direct the papers to be placed before the learned Chief Justice for necessary directions in the matter.

(Pursuant to an Order of Reference by Satyanarayana Rao and Viswanatha Sastri, JJ., dated 3rd February, 1950, this appeal coming on for hearing, the Court delivered the following)

Judgments:

The Chief Justice.-I have had the advantage of perusing the judgment prepared by my learned brother Viswanatha Sastri, J. and I am in entire agreement with his reasoning and conclusion. If I add a few words it is because the. question raised in the case is not covered by decided authority.

Sabapathy Padayachi and Muthuvelu were undivided brothers. Muthuvelu died on 17th August, 1943, leaving behind him his widow Alamelu. She sold a house which was a part of the joint family property to the first appellant in this second appeal. In the ordinary course Sabapathi would have become entitled to the entire joint family property on the death of his brother Muthuvelu. But the appellant relied on the right conferred on a widow by section 3(2) of the Hindu Women’s

Click Here to Read the rest of this document