Patna High Court
Khushboo Gupta vs The Life Insurance Corporation Of India ... on 25 September, 2019
Equivalent citations: AIR 2020 (NOC) 925 (PAT.), AIRONLINE 2019 PAT 1526, (2019) 204 ALLINDCAS 744, (2019) 4 CURCC 25, (2019) 4 PAT LJR 885
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12012 of 2018
======================================================
Khushboo Gupta, Wife of Late Prem Kumar Yadav @ Bablu Kumar,
Daughter of Mr. Sunil Kumar Gupta, South Mandir, Kath Ka Pul, P.O. -
G.P.O., P.S. - Budha Colony, District - Patna.
... ... Petitioner/s
Versus
1. The Life Insurance Corporation Of India Through Executive Director
(CRM), Yogakshema Building, Jeevan Bima Marg, Mumbai-400021.
2. The Executive Director (CRM), Yogakshema Building, Jeevan Bima Marg,
Mumbai - 400021.
3. The Regional Manager (CRM), LIC Customer East Central Zone, BSFC
Building, 1st Floor, Near All India Radio, Fraser Road, Patna-800001.
4. The Branch Manager, Life Insurance Corporation of India, Patna Branch -
II, BSFC Building, 1st Floor, Near All India Radio, Fraser Road, Patna-
800001.
5. Mahasundari Devi, Wife of Late Jay Prakash Yadav, Resident of Makhania
Kuan, Babu Tola Lane, Near Dr. Gopal Prasad Clinic, P.S. - Pirbahore, P.O. -
Bankipur, District - Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sanjeet Kumar, Adv.
Mr.Raj Kamal, Adv.
For the Respondent nos.1to4: Mr.Sanjay Kumar No.1, Adv.
For the Respondent no.5 : Mr. Shailendra Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 25-09-2019
Petitioner in the present case is seeking a writ in the
nature of mandamus directing the respondent Life Insurance
Corporation of India (in short 'LIC') and its authorities to pay
the death claim arising out of life insurance policy
no.517337070 which was obtained by one Prem Kumar Yadav
@ Bablu Kumar (since deceased). It is the case of the petitioner
that while taking the life insurance policy, the said Prem Kumar
Yadav @ Bablu Kumar had nominated his mother Mahasundari
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Devi (respondent no.5) and by virtue of that nomination now
after death of life assured the respondent no.5 is claiming the
entire insurance proceeds. The petitioner has a grievance
because after obtaining the policy the said Prem Kumar Yadav
@ Bablu Kumar had solemnized marriage with the present
petitioner on 22.04.2015. The petitioner is claiming herself a
legally wedded wife of the deceased life assured and is looking
for 50% of the proceeds of the death claim.
2. Mr. Sanjit Kumar, Learned counsel representing
the petitioner has submitted before this Court after death of the
life assured, the petitioner has re-married but even after her re-
marriage the petitioner would be entitled to receive at least 50%
of the proceeds by virtue of her being a class-I legal heir of her
deceased husband. Learned counsel has submitted before this
Court that earlier when the Hindu Widows' Re-Marriage Act,
1856 (hereinafter referred to as the 'Act of 1856') was in force,
under Section 2 of the said Act in case of re-marriage any right
to the property inherited or succeeded from the husband would
have ceased and determined as if she had then died, but the Act
of 1856 has already been repealed by Act No.24 of 1983 with
effect from 31st August, 1983. Learned counsel has relied upon a
judgment of the Hon'ble Supreme Court in the case of Cherotte
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Sugathan (Dead) through LRS. & Ors. Vs. Cherotte
Bharathi & Ors. reported in (2008) 2 SCC 610 to submit that
once a right has been vested in the widow in the estate of her
husband by dying intestate, the subsequent marriage conducted
by the widow would not take away the vested right of her to
receive the half of the policy proceeds in the facts of the present
case. Learned counsel has also relied upon a Division Bench
judgment of this Court in the case of Jagdish Mahton VS.
Mohammad Elahi & Ors. reported in AIR 1973 Patna 170.
3. It is further submitted that Section 39 of the
Insurance Act, 1938 does not vest any beneficial interest in the
nominee as the nomination is always subject to the law of
succession. In this connection he has relied upon a judgment of
the Hon'ble Supreme Court in the case of Smt. Sarbati Devi &
Anr. V. Smt. Usha Devi reported in AIR 1984 SC 346=1984
BBCJ 26. Learned counsel has further relied upon a judgment of
the Hon'ble Apex Court in the case of Shipra Sengupta Vs.
Mridul Sengupta & Ors. reported in 2010(2) PLJR SC 1=
(2009) 10 SCC 680.
4. The writ application has been opposed by
respondent no.5. In her counter affidavit she has admitted that
on 22.04.2015 her son had solemnized marriage with the
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petitioner. It is however contended that her son had never
changed the nomination in the policy. The grievance of
respondent no.5 is that after death of her son, the petitioner has
performed second marriage with another person and is living
separately. Some further allegations have been made that the
petitioner is torturing respondent no.5 and has taken away all
the articles etc. for which the a police case is registered with the
Mahila P.S. This Court finds that those are not at all relevant for
the purpose of present case.
5. The respondent no.5 has filed an affidavit stating
that if the respondent no.5 is allowed to receive the entire death
claim, she will keep 50% of the amount in safe fixed deposit
subject to result of the case in which the entitlement of the
petitioner to receive 50% of the death proceeds may be
adjudicated. The contention is that the entitlement of the
petitioner may be declared by only a competent civil court,
hence, for the present no interference is required to be made at
the instance of the petitioner as the respondent no.5 may receive
the amount and can give a good discharge to the insurer.
Consideration
6. In the facts of the present case the question which
has arisen for consideration before this Court is as to whether on
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the admitted facts that this petitioner has re-married after death
of her husband, she would be entitled to receive half of the
death claim proceeds or not.
Case-laws on the legal status of a Nominee under
Section 39 of the Insurance Act, 1938
7. In order to answer the aforesaid issue, this Court
would first take note of the settled legal position with regard to a
nomination under Section 39 of the Insurance Act. In the case of
Smt. Sarbati Devi (supra) was considering a question as to
whether a nominee under Section 39 of the Act gets an absolute
right to the amount due under the life insurance policy on the
death of the assured. Paragraphs 3, 5, 8 and 12 are quoted
hereunder for a ready reference:-
"3. The only question which requires to be
decided in this case is whether a nominee under
Section 39 of the Act gets an absolute right to the
amount due under a life insurance policy on the
death of the assured. Section 39 of the Act reads:
"39. Nomination by policy-holder.--(1)
The holder of a policy of life insurance on
his own life may, when effecting the policy
or at any time before the policy matures for
payment, nominate the person or persons to
whom the money secured by the policy
shall be paid in the event of his death:
Provided that where any nominee is a
minor, it shall be lawful for the policy-
holder to appoint in the prescribed manner
any person to receive the money secured
by the policy in the event of his death
during the minority of the nominee.
(2) Any such nomination in order to be
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effectual shall unless it is incorporated in
the text of the policy itself, be made by an
endorsement on the policy communicated
to the insurer and registered by him in the
records relating to the policy and any such
nomination may at any time before the
policy matures for payment be cancelled or
changed by an endorsement, or a further
endorsement or a will, as the case may be,
but unless notice in writing of any such
cancellation or change has been delivered
to the insurer, the insurer shall not be liable
for any payment under the policy made
bona fide by him to a nominee mentioned
in the text of the policy or registered in
records of the insurer.
(3) The insurer shall furnish to the policy-
holder a written acknowledgment of having
registered a nomination or a cancellation or
change thereof, and may charge a fee not
exceeding one rupee for registering such
cancellation or change.
(4) A transfer or assignment of a policy
made in accordance with Section 38 shall
automatically cancel a nomination:
Provided that the assignment of a policy to
the insurer who bears the risk on the policy
at the time of the assignment, in
consideration of a loan granted by that
insurer on the security of the policy within
its surrender value, or its reassignment on
repayment of the loan shall not cancel a
nomination, but shall affect the rights of
the nominee only to the extent of the
insurer's interest in the policy.
(5) Where the policy matures for payment
during the lifetime of the person whose life
is insured or where the nominee or, if there
are more nominees than one, all the
nominees die before the policy matures for
payment, the amount secured by the policy
shall be payable to the policy-holder or his
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heirs or legal representatives or the holder
of a succession certificate, as the case may
be.
(6) Where the nominee or if there are more
nominees than one, a nominee or nominees
survive the person whose life is insured,
the amount secured by the policy shall be
payable to such survivor or survivors.
(7) The provisions of this section shall not
apply to any policy of life insurance to
which Section 6 of the Married Women's
Property Act, 1874 applies or has at any
time applied:
Provided that where a nomination made
whether before or after the commencement of
the Insurance (Amendment) Act, 1946, in
favour of the wife of the person who has
insured his life or of his wife and children or
any of them is expressed, whether or not on the
face of the policy, as being made under this
section the said Section 6 shall be deemed not
to apply or not to have applied to the policy."
5. We shall now proceed to analyse the
provisions of Section 39 of the Act. The said
section provides that a holder of a policy of
life insurance on his own life may when
effecting the policy or at any time before the
policy matures for payment nominate the
person or persons to whom the money secured
by the policy shall be paid in the event of his
death. If the nominee is a minor, the policy-
holder may appoint any person to receive the
money in the event of his death during the
minority of the nominee. That means that if
the policy-holder is alive when the policy
matures for payment he alone will receive
payment of the money due under the policy
and not the nominee. Any such nomination
may at any time before the policy matures for
payment be cancelled or changed, but before
such cancellation or change is notified to the
insurer if he makes the payment bona fide to
the nominee already registered with him, the
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insurer gets a valid discharge. Such power of
cancellation of or effecting a change in the
nomination implies that the nominee has no
right to the amount during the lifetime of the
assured. If the policy is transferred or assigned
under Section 38 of the Act, the nomination
automatically lapses. If the nominee or where
there are nominees more than one all the
nominees die before the policy matures for
payment the money due under the policy is
payable to the heirs or legal representatives or
the holder of a succession certificate. It is not
necessary to refer to sub-section (7) of Section
39 of the Act here. But the summary of the
relevant provisions of Section 39 given above
establishes clearly that the policy-holder
continues to hold interest in the policy during
his lifetime and the nominee acquires no sort
of interest in the policy during the lifetime of
the policy-holder. If that is so, on the death of
the policy-holder the amount payable under
the policy becomes part of his estate which is
governed by the law of succession applicable
to him. Such succession may be testamentary
or intestate. There is no warrant for the
position that Section 39 of the Act operates as
a third kind of succession which is styled as a
'statutory testament' in para 16 of the decision
of the Delhi High Court in Uma Sehgal case
[AIR 1982 Del 36 : ILR (1981) 2 Del 315] . If
Section 39 of the Act is contrasted with
Section 38 of the Act which provides for
transfer or assignment of the rights under a
policy, the tenuous character of the right of a
nominee would become more pronounced. It
is difficult to hold that Section 39 of the Act
was intended to act as a third mode of
succession provided by the statute. The
provision in sub-section (6) of Section 39
which says that the amount shall be payable to
the nominee or nominees does not mean that
the amount shall belong to the nominee or
nominees. We have to bear in mind here the
special care which law and judicial precedents
take in the matter of execution and proof of
wills which have the effect of diverting the
estate from the ordinary course of intestate
succession and that the rigour of the rules
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governing the testamentary succession is not
relaxed even where wills are registered.
8. We have carefully gone through the
judgment of the Delhi High Court in Uma
Sehgal case [AIR 1982 Del 36 : ILR (1981) 2
Del 315] . In this case the High Court of Delhi
clearly came to the conclusion that the
nominee had no right in the lifetime of the
assured to the amount payable under the
policy and that his rights would spring up only
on the death of the assured. The Delhi High
Court having reached that conclusion did not
proceed to examine the possibility of an
existence of a conflict between the law of
succession and the right of the nominee under
Section 39 of the Act arising on the death of
the assured and in that event which would
prevail. We are of the view that the language
of Section 39 of the Act is not capable of
altering the course of succession under law.
The second error committed by the Delhi High
Court in this case is the reliance placed by it
on the effect of the amendment of Section
60(1)(kb) of the Code of Civil Procedure,
1908 providing that all moneys payable under
a policy of insurance on the life of the
judgment debtor shall be exempt from
attachment by his creditors. The High Court
equated a nominee to the heirs and legatees of
the assured and proceeded to hold that the
nominee succeeded to the estate with all 'plus
and minus points'. We find it difficult to treat
a nominee as being equivalent to an heir or
legatee having regard to the clear provisions
of Section 39 of the Act. The exemption of the
moneys payable under a life insurance policy
under the amended Section 60 of the Code of
Civil Procedure instead of 'devaluing' the
earlier decisions which upheld the right of a
creditor of the estate of the assured to attach
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the amount payable under the life insurance
policy recognises such a right in such creditor
which he could have exercised but for the
amendment. It is because it was attached the
Code of Civil Procedure exempted it from
attachment in furtherance of the policy of
Parliament in making the amendment. The
Delhi High Court has committed another error
in appreciating the two decisions of the
Madras High Court in Karuppa Gounder v.
Palaniamma [AIR 1963 Mad 245 at para 13 :
(1963) 1 MLJ 86 : ILR (1963) Mad 434] and
in B.M. Mundkur v. Life Insurance
Corporation of India [AIR 1977 Mad 72 : 47
Com Cas 19 : (1977) 1 MLJ 59 : ILR (1975) 3
Mad 336] . The relevant part of the decision of
the Delhi High Court in Uma Sehgal case
[AIR 1982 Del 36 : ILR (1981) 2 Del 315]
reads thus: (AIR p. 40, paras 10, 11)
"10. In Karuppa Gounder v.
Palaniamma [AIR 1963 Mad 245 at para
13 : (1963) 1 MLJ 86 : ILR (1963) Mad
434] , K had nominated his wife in the
insurance policy. K died. It was held that
in virtue of the nomination, the mother of
K was not entitled to any portion of the
insurance amount.
11. I am in respectful agreement with these
views, because they accord with the law and
reason. They are supported by Section 44(2)
of the Act. It provides that the commission
payable to an insurance agent shall after his
death, continue to be payable to his heirs,
but if the agent had nominated any person
the commission shall be paid to the person
so nominated. It cannot be contended that
the nominee under Section 44 will receive
the money not as owner but as an agent on
behalf of someone else, vide B.M. Mundkur
v. Life Insurance Corporation [AIR 1977
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Mad 72 : 47 Com Cas 19 : (1977) 1 MLJ 59
: ILR (1975) 3 Mad 336] . Thus, the
nominee excludes the legal heirs."
12. Moreover there is one other strong
circumstance in this case which dissuades
us from taking a view contrary to the
decisions of all other High Courts and
accepting the view expressed by the Delhi
High Court in the two recent judgments
delivered in the year 1978 and in the year
1982. The Act has been in force from the
year 1938 and all along almost all the
High Courts in India have taken the view
that a mere nomination effected under
Section 39 does not deprive the heirs of
their rights in the amount payable under a
life insurance policy. Yet Parliament has
not chosen to make any amendment to the
Act. In such a situation unless there are
strong and compelling reasons to hold that
all these decisions are wholly erroneous,
the Court should be slow to take a
different view. The reasons given by the
Delhi High Court are unconvincing. We,
therefore, hold that the judgments of the
Delhi High Court in Fauza Singh case
[AIR 1978 Del 276] and in Uma Sehgal
case [AIR 1982 Del 36 : ILR (1981) 2
Del 315] do not lay down the law
correctly. They are, therefore, overruled.
We approve the views expressed by the
other High Courts on the meaning of
Section 39 of the Act and hold that a mere
nomination made under Section 39 of the
Act does not have the effect of conferring
on the nominee any beneficial interest in
the amount payable under the life
insurance policy on the death of the
assured. The nomination only indicates
the hand which is authorised to receive
the amount, on the payment of which the
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insurer gets a valid discharge of its
liability under the policy. The amount,
however, can be claimed by the heirs of
the assured in accordance with the law of
succession governing them."
8. The aforesaid judgment has been relied upon by
the Hon'ble Supreme Court in the case of Shipra Sen Gupta.
Paragraphs 17, 18 and 19 of the judgment of the Hon'ble Apex
Court in the case of Shipra Sen Gupta are quoted hereunder for
a ready reference:-
"17. The controversy involved in the instant
case is no longer res integra. The nominee is
entitled to receive the same, but the amount
so received is to be distributed according to
the law of succession. In terms of the factual
foundation laid in the present case, the
deceased died on 8-11-1990 leaving behind
his mother and widow as his only heirs and
legal representatives entitled to succeed.
Therefore, on the day when the right of
succession opened, the appellant, his widow
became entitled to one-half of the amount of
the general provident fund, the other half
going to the mother and on her death, the
other surviving son getting the same.
18. In view of the clear legal position, it is
made abundantly clear that the amount under
any head can be received by the nominee,
but the amount can be claimed by the heirs
of the deceased in accordance with the law
of succession governing them. In other
words, nomination does not confer any
beneficial interest on the nominee. In the
instant case the amounts so received are to
be distributed according to the Hindu
Succession Act, 1956.
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19. State Bank of India is directed to release
half of the amount of the general provident
fund to the appellant now within two months
from today along with interest. The appeal
filed by the appellant is accordingly allowed
and disposed of, leaving the parties to bear
their own costs."
Law Commission's Report on necessity to
repeal the Act of 1856.
9. Learned counsel for the petitioner has placed
before this Court the 81st Report of the Law Commission of
India on the Hindu Widows Remarriage Act, 1856. The Law
Commission has taken a view that after enactment of (1) The
Hindu Marriage Act, 1955; (2) The Hindu Succession Act, 1956;
(3) The Hindu Minority and Guardianship Act, 1956; and (4)
The Hindu Adoption and Maintenance Act, 1956, the subject
matter of the Act of 1856 has been fully covered and these Acts
override all the rules of Hindu Law, custom and usage having
the force of law. The Commission, therefore took a view that
Act of 1856 has become absolute and is no longer of practical
utility and should therefore be repealed. Chapter 2 of the Report
which deals with re-marriage, maintenance and succession. It
would be beneficial to reproduce the entire Chapter 2 of the
Report as under:-
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"CHPATER 2
RE-MARRIAGE, MAINTENANCE AND SUCCESSION
"2.1. The Act of 1856 is an Act removing
all legal obstacles to the marriage of
Hindu widows 1. It was enacted because, as
the first paragraph of the preamble to the
Act stated in 1856, Hindu widows, with
certain exceptions were, by reason of their
having once married, held to be incapable
of contracting a second valid marriage and
the offsprings of such widows by any
second marriage were held to be
illegitimate and incapable of inheriting
property. The object of the Act, as
marrated in the third paragraph of the
preamble to the Act, was to "relieve all
such Hindus from this legal incapacity of
which they complained 2 and the removal
of all legal obstacles to the marriage of
Hindu widows".
2.2. The Act, therefore, first removed the
disability under which Hindu widows had
been suffering and allowed them to re-
marry by providing in section 1, "no
marriage contracted between Hindus shall
be invalid and the issue of no such
marriage shall be illegitimate, by reason
of the woman having been "previously
married or betrothed to another person
who was dead at the time of such
marriage, any custom and any
interpretation of Hindu law to the contrary
notwithstanding".
2.3. This section renders the re-
marriage of a widow valid and secures
the legitimacy of children. But in view
of section 5(i) of the Hindu Marriage
Act, 1955 which provides that a
marriage may be solemnised between 3
any two Hindus if neihter party has a
spouse living at the time of the
marriage, the special provision
contained in section 1 of the Act of
1856 is not now necessary. Clause (i) of
section 5 permits a widow to re-marry,
as her spouse is not living
at the time of marriage. Under this
1. C'f: Peacock C. J. in Akora Suth v..liorcani, (1868) 2 13.L.R. 199, 205.
2 . S ee A pp e nd ix f o r hi s to r i ca l b ac kg r o un d .
3. Section 5(i), Hindu Marriage Act. 1955.
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clause, all that is necessary is that the
woman intending to marry or re-marry
must not have a spouse living at the
time of the marriage; it makes no
difference whatsoever whether she
was or she was not betrothed to
another person at the time of the
marriage. Section 1 of the Act of 1856
has thus become otiose and should be
repealed.
2.4. Indeed, it has been impliedly
repealed by section 4 of the Hindu
Marriage Act, 1955 which runs thus :--
"4. Save as otherwise expressly provided in
this Act, -
(a). any text, rule or interpretation of Hindu
law or any custom or usage as part of that
law in force immediately before the
commencement of this Act shall cease to
have effect with respect to any matter for
which provision is made in this Act;
(b). any other law in force immediately
before the commencement of this Act shall
cease to apply to Hindus in so far as it is
inconsistent with any of the provisions
contained in this Act."
This section gives overriding application
to the provisions of the Hindu Marriage
Act and in respect of any of the matters
dealt with in the said Act, it makes
ineffective all existing laws whether in
the shape of an enactment or otherwise
which are inconsistent with the Act. The
necessary implication of section 4 of the
Hindu Marriage Act is that in effect
Section 1 of the Act of 1856 has been
repealed. An express repeal of the
provision is, however, desirable.
2.5. Next, turning to section 2 of the Act of
1856, it is as follows :--
"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
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limited interest in such property, with no
power of alienating the same, shall upon
her re-marriage 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".
2.6. This section deals with (a)
maintenance, (b) intestate succession, and
(c) testamentary succession.
As to maintenance, the widow on re-
marriage loses all rights and interests she
may have in her deceased husband's
property by way of maintenance. The
forfeiture of the widow's right to be
maintained out of the estate of her first
husband follows also from sections 19 and
22 of the Hindu Adoptions and
Maintenance Act, 1956, which, in chapter
3, contains the law of maintenance
applicable to Hindus 1. Under section 19, a
widow can claim maintenance from her
father-in-law, but this obligation of the
father-in-law ceases if the widow re-
marries. Section 21 of that Act includes, in
the definition of the word "dependants", a
widow so long as she does not re-marry.
Section 22 of that Act lays down rules
relating to the right of dependants to be
maintained, by the heirs of a deceased
Hindu and others, who have inherited the
estate of such deceased person. That Act
also contains a provision, namely, section
4, giving overriding application to the
provisions of the Act. The effect of section
4 is that it renders ineffective all existing
laws in respect of any of the matters dealt
with in the Hindu Adoptions and
Maintenance Act, 1956. That being so,
section 2 of the Act of 1856, in so far as it
deals with the forfeiture of the rights and
interests which a widow may have in her
deceased husband's property by way of
maintenance, must give way to sections 19,
21 and 22 of the Maintenance Act, 1956. It
now serves no useful purpose.
2.7. Section 2 of the Act of 1856 speaks
1. Sections 4, 19,1121 and 22, Hindu Adoptions and Maintenance Act, 1956.
Patna High Court CWJC No.12012 of 2018 dt.25-09-2019
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also of the forfeiture, on the re-marriage of
a widow, of her rights and interests in her
husband's estate. A widow who succeeds to
the property of her deceased husband
under section 8 of the Hindu Succession
Act, 1956, is under section 14 of that Act,
full owner thereof2 There is no provision in
the Hindu Succession Act enacting that on
re-marriage a widow is divested of the
estate inherited from her husband. If,
therefore, section 2 of the Act of 1856 is
read as applying to a widow having an
absolute estate, it would be repugnant to
the Hindu Succession Act 3.
2.8. Several High Courts4 have taken the
view that section 2 of the Act of 1856 has
no application to an absolute estate.
Further, it has been. held5 that once a widow
succeeds to the property and acquires an
absolute right under the Act of 1956, she
cannot be divested of that right on her re-
marriage.
2.9. Some differences have arisen amongst
writers on the subject. The matter has been
put thus in Mulla6.
"Re-marriage of a widow, is not now under
the Act a ground for divesting the estate
inherited by her from her husband. The
Hindu Widows Re-marriage Act, 1856,
though it legalised the re-marriage of a
Hindu widow, 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 husband's
estate, and it passed to the next heirs of her
husband as if she were dead (s. 2 of that
Act). The rule laid down in that enactment
cannot apply to a case covered by the
present Act and a widow becomes full
owner of the share 7 or interest in her
2(a) Pzmithavalli Animal v. Ramalingam. A.I.R. 1970 S.C. 1730.
(b) Kasturi Devi v. Dy. Director of Consolidation, A.I.R. 1976 S.C. 2595.
'3.Pandurang Narayan v. Sindhu, A.1.R. 1971 Born. 413 (Chandrachud & Malvankar D.)
4.(a) Ram Piari v. Board of Revenue, A.I.R. 1972 All. 492.
(b)Pandurang Narayan v. Sindhu, A.I.R. 1971 Born. 413, 415, para 10.
(c)Sasanka Bhowmick v. Amiya, (1973) 78 C.W.N. 1011, 1020.
(d)Sankaribala v. Asita Barani, A.I.R. 1977 Cal. 289, 292.
(e)Lakshmi Amoral v. Thangaavel Asari, A.I.R. 1957 Mad. 534.
(f)Jagdish Mahton v. Mohammad Maki, A.I.R. 1973 Pat. 170.
(g)Smt. Bhuri Bai v. Sntt. Champi Bai, A.I.R. 1968 Raj. 139.
6.Jagdish Mahton v. Mohammad Elahi, A.I.R. 1973 Pat. 170 (D.B.)
7. Mulla's Hindu Law (14th edition, 1974) page 869.
'Emphasis added.
Patna High Court CWJC No.12012 of 2018 dt.25-09-2019
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husband's property that may devolve on
her by succession under the present
section. Her re-marriage, which would
evidently be after the "vesting in her of her
share or interest on the death of the
husband, would not operate to divest such
share or interest. The Hindu Widows Re-
marriage Act, 1856 is not replealed but
section 4 of the present Act in effect
abrogates the operation of that Act in the
case of a widow who succeeds to the
property of her husband under the present
section and section 14 has the effect of
vesting in her that interest or share in her
husband's property as full owner of the
same."
A different view has, however, been
expressed by Gupte1. According to the
learned author, section 2 of the Hindu
Widows Re-marriage Act,1856 has not
been abrogated by section 4 of the Hindu
Succession Act, 1956; that "although
section 2 of the Hindu Widows Re-
marriage Act, 1856 was drafted at a time
when a widow succeeding to her husband's
or to his lineal successor took only a
limited estate, the language of that section
is capable of applying to a widow having
an absolute estate". He further states "it is
however still possible to urge as a matter of
construction of section 2 of the Hindu
Widows Re-marriage Act that she would
forfeit her estate, "though full, especially, as
that Act has not been repealed2. If an estate
is liable to forfeiture, it should make no
difference whether the estate is converted
into a full estate by section 14 or not. Any
estate either absolute or limited may in law
still be liable to forefeiture in certain
circumstances and situations by an
independent rule such as the rule in section
2 of the Hindu Widows Re-marriage Act
which has not been repealed."
2.10. It is not necessary to enter into a
controversy whether section 2 of the Act of
1856 Need for has been abrogated by the
1.Gupte, Hindu Law of Succession (1972), pages 457-458.
2.Emphasis added.
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Hindu Succession Act 3, or whether section
2 applies to a widow having an absolute
estate. If section 2 has not been abrogated
and applies to a widow having as an
absolute estate, then a fortiori it must be
expressly repealed. It cannot be allowed
to stand so as to give the anachronic result
of the divestiture, on the re-marriage of a
widow, of the estate devolving on her by
succession under the Hindu Succession
Act, 1956. The repeal of the section would
set at rest whatever conflict of opinion has
arisen4 on the construction of the section
and its applicability to a widow having an
absolute estate.
2.11. It may be noted that the repeal of
section 2 as recommended above5 will in no
way affect the operation of section 24 of the
Hindu Succession Act6 which disqualifies
the widow of a predeceased son or the
widow of a predeceased son of a
predeceased son or the widow of a brother,
from succeeding to the property of an
intestate as such a widow, if, on the date the
succession opens, she has remarried. That
provision will continue to apply to cases
falling within its scope.
2.12. In regard to the application of
section 2 to testamentary dispositions, we
may note that section 30 of the Hindu
Succession Act provides that any Hindu may
dispose of, by will or other testamentary
disposition, any property in accordance with
the provisions of the Indian Succession Act,
1925 or any other law for the time being in
force applicable to Hindus. Disabilities in
regard to such dispositions would therefore
be governed by the Indian Succession Act 7,
or other law where applicable and unless a
will specifically provides for forfeiture of a
bequest on re-marriage, there would be no
statutory forfeiture of the bequest. This
part of section 2 of 1856 Act is, therefore,
not in keeping with the Indian Succession
3. Para 2.8, supra, See also Harabati v. Sasadhar, A.I.R. 1977 Orissa 142.
4. See para 2.9, supra.
5. Para 2. 10 supra.
6. Section 24, Hindu Succession Act, 1956.
7. Cfo Section 74, Indian Succession Act, 1925.
Patna High Court CWJC No.12012 of 2018 dt.25-09-2019
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Act and should be scrapped.
2.13. The foregoing discussion makes it
clear that the whole of section 2 of the
Hindu Widows Re-marriage Act should be
repealed.
10. After the aforesaid report was submitted the Act
of 1856 has been repealed vide Hindu Widows Re-marriage Act,
1856 (Act No.24 of 1983). Even prior to repeal of the Act of
1856, a Division Bench of this Hon'ble Court had occasion to
consider the effect of Section 14 of the Hindu Succession Act,
1956 on Section 2 of the Act of 1856. The Hon'ble Division
Bench held that Section 2 of the Act of 1856 will be in
consistent with Section 14 of the Act of 1856 and, therefore, in
valid to the extent of in consistency by virtue of Section 4(1)(b)
of the Act of 1856. The paragraphs 16 and 17 of the judgment
ofthe Hon'ble Division Bench in the case of Jagdish Mahto are
quoted hereunder for a ready reference:-
"16. I am in entire agreement with
my learned Brother Mukharji, J., that Section
2 of the Hindu Widows' Re-marriage Act is
inconsistent with Section 14 of the Hindu
Succession Act, and, therefore, in cases, where
a Hindu widow gets absolute right by
inheritance in her husband's property, she
cannot be divested of that right by virtue of
Section 2 of the Hindu Widows' Re-marriage
Act in my opinion, Section 2 aforesaid merely
divests a Hindu widow on re-marriage of
limited interest held by her. It has been
expressly so stated with regard to her
husband's property coming to her by virtue of
Patna High Court CWJC No.12012 of 2018 dt.25-09-2019
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any Will or testamentary disposition. If the
interest conferred upon her in her husband's
property by virtue of will or testamentary
disposition is not limited but absolute, the
section has got no application. It appears that
the section has also got no application where
she gets her deceased husband's property by
virtue of a non-testamentary disposition.
Rights and interest acquired by her in her
husband's property by inheritance to her
husband or to his lineal successors were
limited interest before the passing of the
Hindu Succession Act Rights and interest
acquired by her in her deceased husband's
property by way of maintenance except by a
grant conferring upon her absolute right were
also a limited interest. In view of the fact that
the section was not made applicable to her
deceased husband's properly coming through
non-testamentary disposition, it is doubtful
whether the property given to her by way of
maintenance by a grant conferring absolute
right on her could be divested on her
remarriage. For the purpose of decision of the
appeal, that point need not be examined in any
further detail and, be that as it may, ordinarily
Section 2 of the Hindu Widows' Remarriage
Act was not intended to apply to cases where a
widow acquired an absolute interest in her
deceased husband's property.
17. After the passing of the Hindu
Succession Act, by virtue of Section 14 of that
Act, a widow gets an absolute interest in her
deceased husband's property possessed by her.
If Section 2 of the Hindu Widows' Re-
marriage Act was to apply to cases where a
Hindu widow has got an absolute interest in
her deceased husband's property, that will be
inconsistent with the provisions of the Hindu
Succession Act and, therefore, invalid to the
extent of inconsistency by virtue of the
provisions of Section 4(1)(b) of the Hindu
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Succession Act. Learned Counsel for the
appellant placed reliance on Section 15 of the
Hindu Succession Act according to which, in
absence of the heirs expressly mentioned in
clause (a) of sub-section (1), the property
inherited by a female Hindu from or father or
mother was on her dying intestate to devolve
on the heirs of her father while the property
inherited by a female Hindu from her husband
was to devolve upon the heirs of the husband.
According to him, this showed that the
intention of the makers of the Hindu
Succession Act was that the property in the
hands of a Hindu female should not go out of
the hands of the branch to which it originally
belonged. Section 15 applies only to cases
where a female Hindu dies intestate.
It impliedly shows that she has
been given full power in respect of the
property possessed by her, be that of hen
father or mother or of her husband, to give it
to any one she likes by a testamentary or non-
testamentary disposition. It cannot, therefore,
be said that the framero of the Hindu
Succession Act intended to divest a Hindu
female of absolute right acquired by her in
case of re-marriage or any other contingency.
Section 23 of the Hindu Succession Act
imposes some restriction on the power of a
Hindu widow in respect of dwelling houses.
Section 24 debars the widow of a pre-
deceased son, widow of a pre-deceased son of
a pre-deceased son or the widow of a brother
from succession to the property of a Hindu
dying intestate as such widow, if on the date
the succession opens, she has re-married. Had
the framero of the Act intended to divest a
Hindu widow of the property inherited by her
and possessed by her on ground of re-
marriage, they would have made specific
provisions for that in the Act itself. Sections
25 and 26 of the said Act also make provisions
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which are applicable to both males and
females debarring them from succession or
inheritance in certain cases and, thereafter,
comes Section 28 which says that no person
shall be disqualified from succeeding to any
property on the ground of any disease, defect
or deformity or save as provided in the Act on
any other ground whatsoever. In my opinion,
therefore, it is manifest from the provisions of
the Act that the framers thereof never intended
to divest a Hindu Widow of her interest in her
deceased husband's property on the ground of
remarriage and Section 2 of the Hindu
Widows' Re-marriage Act is inconsistent with
the provisions of the Act. This view is directly
supported by a Bench decision of the Madras
High Court in AIR 1971 Mad 433 and
impliedly supported by the decision of the
Supreme Court in (1970) 1 SCC 570 : AIR
1970 SC 1730 wherein it has been held that
the estate taken by a Hindu widow under
Section 14(1) of the Hindu Succession Act is
not defeasible by the subsequent adoption
made by her to he? deceased husband. My
learned Brotheo Mukherji, J., has already
referred to these two decisions and I need not
refer to them in any further detail."
Case-laws on the Right of a Widow upon re-marriage
11. In the case of Cherotte Sugathan (Dead) through
LRS. & Ors. (supra), the Hon'ble Supreme Court was
considering the case of the first respondent who was a widow
had remarried one Elambilakkat Sudhakaran. Sudhakaran died
on 12.09.1979. She filed a suit on 31.12.1985 for partition
claiming 1/3rd share in the suit property. A plea was raised that
in terms of Section 2 of the Act of 1856, the plaintiff would
Patna High Court CWJC No.12012 of 2018 dt.25-09-2019
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cease to have any right in the property inherited by her from her
husband Sukumaran. Let it be clarified that the plaintiff had first
married to Sukumaran who had died on 02.08.1976 and after his
death she had married to Sudhakaran who died on 12.09.1979.
In the aforesaid context while dealing with the law on the
subject, the Hon'ble Apex Court took note of the case laws on
the subject in paragraph 14 and 15 and agreed with the same. In
paragraph 14 and 15 of the judgment in Cherotte Sugathan
(supra) are quoted hereunder for a ready reference:-
"14. The question posed before us is no
longer res integra. In Chando Mahtain v.
Khublal Mahto [AIR 1983 Pat 33] the
Patna High Court opined: (AIR p. 34, para
6)
"6. ... The Hindu Widows' Re-marriage
Act, 1856 has not been repealed by the
Hindu Succession Act, 1956 but Section 4
of the latter Act has an overriding effect and
in effect abrogates the operation of the
Hindu Widows' Re-marriage Act, 1856.
According to Section 4 of the Hindu
Succession Act all existing laws whether in
the shape of enactments or otherwise shall
cease to apply to Hindus insofar as they are
inconsistent with any of the provisions
contained in this Act."
15. In Kasturi Devi v. Dy. Director of
Consolidation [(1976) 4 SCC 674 : AIR
1976 SC 2595] this Court categorically
held that a mother cannot be divested of her
interest in the deceased son's property
either on the ground of unchastity or
remarriage."
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Conclusion and Direction
12. From the aforementioned discussions, it is crystal
clear that by virtue of the nomination under Section 39 of the
Insurance Act, 1938, the respondent no.5 in the present case
cannot claim 100% of the death claim proceeds, in fact she has
not questioned the status of the petitioner as a widow of her son
and therefore this Court would have no difficulty in coming to a
conclusion that both the petitioner as well as the respondent
no.5 are class-I legal heirs under the Hindu Succession Act,
1956. The succession in the present case was opened on
22.06.2017when the life assured died. By virtue of Section 14 of the Act of 1956, therefore, the petitioner became entitled to receive the death claim proceeds arising out of the death of the life assured, simultaneously with her mother in law (respondent no.5) who is another class-I legal heir under the Act of 1956. Once this right has vested with the petitioner, she cannot be divested of her right to receive the proceeds equally with her mother-in-law, even though after death of life assured the petitioner has gone for a remarriage. The law on succession and the nomination being well settled, this Court allows the writ application and directs the LIC of India and its authorities to pay the entire proceeds to the petitioner as well as respondent no.5 Patna High Court CWJC No.12012 of 2018 dt.25-09-2019 26/26 by dividing the same equally between the two of them after getting due discharge.
13. Let it be recorded that the learned counsel for the Life Insurance Corporation of India has not disputed the claim and has submitted that the LIC would be abide by the orders of this Court. Let the entire payments be made within a period of thirty days from the date of receipt/production of a copy of this order.
(Rajeev Ranjan Prasad, J).
arvind/-
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