Patna High Court
Chando Mahtain And Ors. vs Khublal Mahto And Ors. on 21 September, 1982
Equivalent citations: AIR1983PAT33, 1982(30)BLJR481, AIR 1983 PATNA 33, 1982 BLJR 481, (1983) 1 CIV LJ 54, 1983 (1) DMC 171, (1983) 1 DMC 54, (1982) BLJ 663, (1982) PAT LJR 482, (1983) HINDULR 278
JUDGMENT Birendra Prasad Sinha, J.
1. The plaintiff's suit was dismissed on the ground that the widow of his brother's son was not made a party in the suit. His appeal before the lower appellate court was also dismissed on the same ground. The Pre-sent appellants are the heirs of the plain tiff, 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, Nanku's 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 husband's 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 Section 4 of the latter Act has an overriding effect and in effect abrogates the operation of the Hindu Widows Remarriage 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 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 sought to bring about certain fundamental and radical changes in the law of succession. On its coming into force the law of succession hitherto applicable to Hindus, whether by virtue of any text, rule or interpretation of Hindu Law or any custom or usage having the force of law, ceases to have effect with respect to all matters expressly dealt with by the Act. Section 8 of the Hindu Succession Act provides for a new and definite scheme of succession to the properties of a male Hindu who dies intestate after the commencement of the Act. According to this section the property of a male Hindu dying intestate shall devolve, firstly, upon the heirs being the relatives specified in class I of the Schedule. Widow is one of the heirs specified in class I of the Schedule. She inherits simultaneously with others specified in class I of the Schedule. Under the old law the simultaneous heirs of a male intestate consisted only of his son and the son of a pre-deceased son and the son of a pre-deceased son of a pre-deceased son. Three more heirs, namely, the widow of the intestate and the widows of the pre-deceased son and of the pre-deceased son of a pre-deceased son were added by the Hindu Women's Right to Property Act, 1937. Now under the Succession Act a widow inherits simultaneously with a son, daughter and the other heirs specified in class I of the Schedule and to the exclusion of all other heirs (Section 9). Section 14 provides that any property possessed by a female Hindu whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. Therefore, the widow takes her share absolutely and not as a widow's estate. Remarriage by a widow cannot, therefore, become a ground for divesting the estate inherited by her from her husband. In the present case remarriage of Rukmini Debi had taken place sometimes after 1960 i.e. after the vesting in her of her share of interest on the death of her husband. Sections 24 to 28 of the Succession Act deal with the question of disqualification of heirs. Section 24, which is relevant, deals with one of the grounds of disqualification, namely, remarriage but this disqualification is confined only to certain heirs. It is confined to the case of three female heirs. Any heir who is related to an intestate as the widow of a pre-deceased son, the 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 the succession opens, she has remarried. This obviously does not apply in the present case in relation to Rukmini Debi who had inherited the properties of her husband as an absolute owner after passing of the Succession Act. It cannot, therefore, be held that Rukmini Debi who succeeded to the properties left by her husband as a widow after the passing of the Succession Act was divested of the said properties on her remarriage.
7. Both the courts below have, in my opinion, correctly held that Rukmini Debi was a necessary party in the suit and the suit could not proceed in her absence. The suit and the appeal were rightly dismissed. This appeal also fails and is, accordingly, dismissed with costs.