Scope of forfeiture of husband’s property.

The Second Appeal raises a question of the interpretation of section 2 of the Hindu Widows’ Re-marriage Act (XV of 1856), hereafter called the Act, and its application to the facts of the case. The facts are simple and are not in dispute. They may be briefly stated. One Mookan Asari, the elder brother of the plaintiff and the first husband of the defendant died. After his death, the plaintiff instituted O.S. No. 239 of 1944 on the file of the Court of the District Munsif of Ambasamudram claiming that the properties were joint family properties and that he was entitled to the same by survivorship. The defendant contended that the properties were the separate properties of Mookan Asari and that she succeeded to the same as his widow. The suit was ultimately compromised and Exhibit A-6, dated nth June, 1945, was the compromise decree made therein. Under the compromise decree, the properties described in the first schedule annexed to that decree were given absolutely to the plaintiff and the properties particularised in the second schedule annexed thereto were given absolutely to the defendant. The plaintiff and the defendant were put in possession of the properties allotted to their shares. After Mookan Asari’s death on 28th October, 1943, the defendant married one Somasundaram Asari on 24th September, 1946. The plaintiff filed O.S. No. 323 of 1946 on the file of the District Munsif, Ambasamudram, for recovery of possession of the items of property given to the defendant under the compromise decree on the ground that she forfeited all her rights in the said properties under the Act by reason of her second marriage. The learned District Munsif held that the defendant did not forfeit her rights to the properties given to her under the compromise decree by reason of her second marriage, whereas on appeal the District Judge held contra. The result was that the suit was decreed with costs throughout. The defendant preferred the above appeal.

At the outset it may be convenient to consider what would have been the legal position apart from the Act if the widow had died and the succession opened. The ‘plaintiff having been a party to the compromise decree and taken a benefit thereunder would have been estopped from questioning the binding nature of the decree. As the terms of the decree were clear and unambiguous and the parties thereto got absolute interest in the properties allotted to their respective shares, the plaintiff could not have questioned the defendant’s absolute interest in the plaint schedule properties. The plaintiff and defendant would have been bound by the terms of the decree. It is not necessary to speculate what would have been the position if a person other than the plaintiff was the next reversioner.

Would the provisions of the Act make any difference? The governing provisions are sections 2 and 5 which read:

Section 2: All rights and interests which any widow may have in her deceased husband’s 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.

Section 5: Except as in the three preceding sections is provided, a widow shall not, by reason of her remarriage forfeit any property or any right to which she would otherwise be entitled; and every widow who has re-married shall have the same rights of inheritance as she would have had, had such marriage been her first marriage."

Learned counsel for the respondent relying upon the provisions of the aforesaid sections contended that the defendant forfeited rights in the properties given to her ‘by reason of her re-marriage. His argume