Bombay High Court
Baliram Atmaram Dhake vs Rahubai @ Saraswatibai on 7 January, 2009
Bench: P. R. Borkar
1. This Second Appeal is filed by original defendant no.2 being aggrieved by the judgment and decree passed by the learned District Judge in Regular Civil Appeal No. 126 of 1982 decided on 19.12.1986, whereby the learned District Judge held that the share of plaintiff/respondent was augmented from 1/3rd to 1/2 in the suit property pending the appeal and thus otherwise confirmed the decree for partition and separate possession passed by the learned 4th Joint Civil Judge, Junior Division, Jalgaon in Regular Civil Suit No. 499 of 1979 decided on 25.1.1982 with the modification.
(-2-)
2. This Second Appeal is admitted by order dated 1.7.1987 on ground no.10, which is as follows :
" Both the lower Court have not properly
considered the provisions of Section 24 of the
Hindu Succession Act, 1956 which provides that
certain widows are re-marrying may not inherit as
widows. "
3. Most of the facts of this appeal are no more disputed. Thus it is admitted that the respondent-Rahubai had married Jagannath who was son of original defendant no.1-Atmaram Dhake and brother of present appellant-Baliram. Jagannath died on 19.12.1954. In about 1962, plaintiff/respondent remarried. The plaintiff filed suit for partition and separate possession in 1979 claiming 1/2 share in the suit properties which are ancestral properties of Atmaram Dhake. The suit was against Atmaram Dhake who died pending First Appeal and his son Baliram who is appellant. The Trial Court decreed the suit and awarded 1/3rd share to each of the plaintiff and defendant nos. 1 and 2. As against the said judgment and decree the appeal was preferred by the defendants. Pending the appeal before District Court, Atmaram Dhake died. Appeal was continued by present appellant-Baliram and the learned Judge was pleased to dismiss appeal with modification that the share of plaintiff/respondent had (-3-)
become 1/2 as a result of death of Atmaram.
4. Heard Mr.S.V.Gangapurwala, advocate for the appellant and Mr.L.V.Sangit, advocate holding for Mr.V.J.Dixit, advocate for the respondent. Learned advocate for the appellant argued that because of remarriage the plaintiff/respondent is not entitled to any share and he relied upon the case of Velamuri Venkata Sivaprasad (dead) by LRs. vs Kothuri Venkateswarlu (dead) by LRs. [AIR 2000 SC 434]. He also argued that Section 14 of the Hindu Succession Act, 1956 will not be applicable, because widow was not in actual possession of the property. Learned advocate further relied upon the case of Ram Vishal (dead) by LRs.and others vs Jagan Nath and another [(2004) 9 SCC 302] and argued that there is no pre-existing right and in the facts and circumstances of the case the appeal should be allowed and the suit should be dismissed.
5. Mr. S.V.Gangapurwala, advocate for the appellant further argued that after remarriage, the plaintiff/respondent could not have inherited the share of deceased Atmaram and the District Court has clearly committed error in holding that respondent-Rahubai was entitled to 1/2 share. He also argued that respondent-Rahubai has a daughter from first marriage (-4-)
who had filed suit for partition which was dismissed, but he did not press said point any more because there is nothing on record to show under what circumstances the claim of alleged daughter was dismissed, whether it is because relationship was not proved or for any other reason.
6. Since there is no dispute regarding the basic facts of this case, it may be noted that under the Act 18 of 1937 i.e. under the Hindu Women's Right to Property Act, 1937, respondent whose husband died on 19.12.1954 would be entitled to 'Hindu Womens estate' which is limited interest defined under Section 3(3) of the Hindu Womens Right to Property Act and Section 3 (2) lays down that any Hindu governed by any school of Hindu law other than Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub-section (3) lays down that any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.
(-5-)
7. By virtue of Section 14 of the Hindu Succession Act, 1956, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. It is argued before this Court that respondent-Rahubai was not in actual possession of the property. However, it is not disputed that at the time of death on 19.12.1954 or thereafter when Hindu Succession Act came into force on 17th June, 1956, respondent-Rahubai was a member of the joint family of defendants. The possession of joint property by her father-in-law or brother-in-law can be said to be possession for and on behalf of the entire family. There is nothing on record to show that such right or interest of respondent-Rahubai was denied at that time by the appellant or his father. In view of above, respondent-Rahubai has become absolute owner under Section 14 of the Hindu Succession Act, 1956 of 1/3rd share which she had inherited from her husband Jagannath. I am fortified by ratio laid down by the Supreme Court in Suteh Ram vs Gauri Shankar [AIR 1968 SC 365] and Kotturuswami vs Veeravva [AIR 1967 sc 1786].
8. The facts of Velamuri Venkata Sivaprasad (supra) were different. In that case widow had re-married prior to year 1956 when the Hindu Succession Act came into (-6-)
force and, therefore, it is held that the widow was divested of even limited ownership of her deceased husband's property. It is stated that Section 2 of the Hindu Widow's Re-marriage Act, 1856 has taken away the right of widow in the event of re-marriage and the statute is very specific to the effect that widow on re-marriage would be deemed to be otherwise dead. In the present case, the respondent Rahubai had not re-married when the Hindu Succession Act, 1956 came into force. She married much subsequently in about 1962.
9. So far as case of Ram Vishal (supra) is concerned, in that case it was held that under Section 4 of the Hindu Succession Act not only female Hindu should be in possession of property, but should have pre-existing right for conferment of full ownership on her. Mere right to maintenance without actual acquisition in any manner is not sufficient to attract Section 14 of the Act.In that case, question arose whether widow of son can claim right in the property left by father-in-law. In same case, it is held that widow of such father-in-law would be entitled and not the widow of his son. In the facts of that case it was held that the widow of son had not acquired any right under the Hindu Womens' Right to Property Act, 1937. (-7-)
10. The fact that in the year 1962 the plaintiff/respondent remarried would not divest her of her rights vested in her by virtue of Section 14 of the Hindu Succession Act, 1956. In support of this proposition the learned advocate for the respondent Shri Sangeet, advocate relied upon the case of Cherotte Sugathan (D) by L.Rs. and others vs Cherotte Bharathi and others [2008 AIR SCW 1525]. Their Lordships of the Supreme Court clearly laid down that widow inheriting property of her husband on his death would become absolute owner and subsequent remarriage would not divest her of property in view of Sections 24 and 14 of the Hindu Succession Act, 1956. It is also observed that Hindu Succession Act, 1956 overrides provisions of Hindu Widow's Remarriage Act, 1856.
11. At the same time, having re-married in 1962 prior to the death of Atmaram, it cannot be said that respondent-Rahubai has inherited share of deceased defendant no.1-Atmaram after his death. At that time provisions of Section 24 of the Hindu Succession Act, 1956 were applicable and Section 24 (which was deleted w.e.f. 9.9.2005) was as follows :
"24. Certain widows remarrying may not inherit
as widows :- Any heir who is related to an
intestate as the widow of a pre-deceased son, the
(-8-)
widow of a pre-deceased son of a pre-deceased son
or the widow of a brother shall not be entitled
to succeed to the property of the intestate as
such widow, if on the date of succession opens,
she has remarried. "
It may be noted that Section 24 of the Hindu Succession Act, 1956 was in force till 9.9.2005 and is squarely applicable to the present case.
12. In view of above, in my considered opinion, the learned District Judge has committed an error in holding that respondent-Rahubai was entitled to 1/2 share. Respondent-plaintiff is entitled to 1/3rd share and remaining 2/3rd share shall be of appellant-Baliram. With this modification, the judgment and decree passed by the District Court is set aside and the judgment and decree passed by the IVth Joint Civil Judge, Junior Division, Jalgaon is hereby confirmed. The Second Appeal is allowed to that extent. Parties are directed to bear their own costs.
(P.R.BORKAR, J.)
// Authenticated copy //
D.B.Mahaman,
Private Secretary to Hon'ble Judge.
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