P L D 1961 Dacca 180 (PLP)

This appeal is on behalf of the plaintiff, and raises a question of Hindu Law. It arises out of a suit for declaration of the plaintiff's title to, and recovery of khas possession of the', lands described in the plaint.

2. The plaintiff's case may be shortly stated as follows

3. The lands in suit originally belonged to one Fatik, who died leaving his wife, the plaintiff, as his sole heiress and legal representative. Six or seven years after the death of her husband the plaintiff became a common prostitute and lived such life for some years. Eventually she embraced Islam, and took her present name Rabia Khatoon. She subsequently married a Muslim husband. The lands in suit are the lands she inherited from her former husband Fatik, and she used to possess them through Bargadars. Defendant No. 1 took barga settlement of the lands from her in 1356 B. S. On the refusal of the defendants to deliver to her the barga crops in 1358, she brought a suit in the Small Causes Court for recovery of the price of the same. The defendants resisted the plaintiff's claim alleging that defendant No. 2 had purchased the lands from one Akin Ali with whom the landlords had settled the same. The question of the plaintiff's title to the lands having thus been raised, the Small Causes Court Judge returned the plaint for presentation to the proper Court. Hence this suit.

4. The defence is a denial of the title of the plaintiff to the suit land. It is first contended that the plaintiff became a common prostitute during the life-time of her former husband Fatik, and, as such, she could not, and did not inherit the properties left by Fatik. It is next contended that in any event all rights which she had in her former husband's properties were determined by her remarriage. It is also contended that the lands were in khas possession of the landlord, who settled the same with Akin Ali from whom the defendants purchased the same.

5. The trial Court found that the plaintiff became a common prostitute even during the life-time of her first husband, and she did not therefore, inherit the suit land. It was also found that the lands were in the khas possession of the landlords, who settled the same with Akin Ali from whom defendant No. 2 purchased the same. The trial Court accord?ingly dismissed the suit.

6. On appeal by the plaintiff the learned Subordinate Judge, Fifth Court at Dacca, agreed with the trial Court in dismissing the plaintiff's suit, but not with the reasons of the learned Munsif. The learned Subordinate Judge found that the plaintiff became unchaste after death of Fatik. and the properties of Fatik having vested in her on Fatik's death, leer subsequent unchastity did not divest her of the same. But the learned Judge held that the plaintiff having remarried she forfeited her right of inheritance from her husband by operation of the Hindu Widows' Remarriage Act (XV of 1856) (hereinafter referred to as the Act). He accordingly dismissed the plaintiff's appeal. Hence, this second appeal by the plaintiff.

7. Mr. Rafiuddin Ahmed, the learned Advocate who appears in support of this appeal, contends that the Court of appeal below erred in holding that the plaintiff's claim to her former husband's property was affected by the provisions of the Act. The learned Advocate contends in the first place that the pro?visions of the Act are not attracted to the facts of the present case inasmuch as the plaintiff was not a Hindu widow at the time of her remarriage, but a Muslim woman. In the second place, he contends that independently of the Act, which accord?ing to hire does not apply to the facts of the present case, there is no principle of Hindu Law by which the plaintiff can be divested of the property she had validly inherited from Fatik. In support of this contention Mr. Ahmed relies on the Full Bench decision of the Allahabad High Court in the case of Bhola Umar v. Kausilla and another (I L R 55 All 24) ; and the dissenting judgments of Prinsep, J., in the Full Bench case of Mantugini Gupta v. Ram Rutton Roy and others (I L R 19 Cal. 289), and of Seshagiri Aiyar, J. in the Full Bench case of Vitta Tayaramma v. Chatakondu Shivayya and two others (I L R 4 Mad. 1078). Mulla in his book on Hindu Law, Ninth edition, page 37, summarises the effect of the decisions of the different High Courts on the point as follows "Does a Hindu widow who has ceased to be a Hindu before her remarriage, e.g., by conversion to Muhammadanism, forfeit her rights to her husband's property ? Yes, according to Calcutta, Madras, Bombay and Patna decisions. No, according to Allahabad decision". The learned author refers to the following cases : (i) Matungini v. Ram Rutton, (ii) Vitta v. Chatakondu, (iii) Raghunath Sankar v. Laxmi Bai and (4) Mst. Suruj v. Attar.

8. In Matungini's case, a Hindu widow inherited the property of her husband, and she afterwards married a second husband, not a Hindu, in the form provided by Act III of 1872 having first made a declaration that she was not a Hindu. The question that was referred to the Full Bench of the Calcutta High Court was whether under the circumstances she forfeited the interest in her first husband's property. The answer returned by the majority of the Full Bench was in the affirmative, and is con?tained in the following few sentences : "Section 1 no doubt relates to marriages between Hindus, but section 2 includes all widows who are within the scope of the Act, that is to say, all persons who being Hindus become widows and it must follow from this that if any such widow marries, she is deprived by the section of the estate which she inherited from her Hindu husband. The words are clear?

All rights which any widow may have in her deceased husband's property by inheritance to her husband "the estate which a Hindu widow takes upon her husband's death in his property is an estate which she takes by inheritance to him and such estate is expressly determined by the section. "My answer to the question is, that by marriage the widow forfeited her estates in her first husband's property in favour of the next heir." Prinsep, J., however, expressed doubts as to whether the Act would apply to a case of a re-marriage not as a Hindu. He was inclined to take the view that the Act applied only to Hindu widows remarrying as Hindus under Hindu Law. It may be pointed out here that by operation of section 2 of the Act the Hindu widow's estate is subject to forfeiture on her remarriage. Acceptance of the view of Prinsep, J. will lead to the result that it will be in the power of the widow to release herself of the provisions of the Act by an act of her own. On the death of her husband, the Hindu widow takes the estate subject to forfeiture, and she can't enlarge the estate she inherited by her own subsequent act.

9. In Vitta's case, the question referred to the Full Bench of the Madras High Court was formulated as follows "Does a Hindu widow, who becomes a Muhammadan and marries a Muhammedan, by her remarriage forfeit her interest in her first husband's estate?" Wallis, C. J. and Oldfield, J. answered the question in the affir?mative, but Seshagiri Ayyar, J., answered it in the negative. The following passage from the judgment of Wallis, C. J. may profit?ably be quoted here : "The words `any widow, upon her remarriage' in section 2 are, I am inclined to think, wide enough to cover the case of any widow of a Hindu remarrying, whether or not her marriage would otherwise be prohibited by any custom or inter?pretation of Hindu Law, and whether the remarriage was to a Hindu or to a member of another religion." Oldfield, J., however, rested his decision on Hindu Law, and not on the provisions of the Act. Seshagiri Ayyar, J., on the contrary held that neither under the Act nor under the Hindu Law there could be a forfeiture.

10. In Raghunath Shankar's case (I L R 59 Bom. 417) the Bombay High Court followed the Calcutta Full Bench decision in Mantugini Gupta's case. The passage in the judgment of the Bombay High Court, which I want to read, is as follows : "It seems to us that when Act XV of 1856 was passed the possibility of cases like the present arising or the consideration of the Courts was not perhaps foreseen, but that the provision of section 2 was intended to meet the objection that a Hindu widow could not be permitted to retain any right in her husband's estate on her voluntarily leaving her husband's family. The only aspect of her position that appears to have been taken into consideration in the enactment of section 2 are the limited interest a widow holds in her husband's estate and the contingency of her renouncing the position which entitled her to hold such interest. The question of a change of religion, in our opinion, has no direct relevancy to these two questions, and we, therefore, believe that it would be wrong to interpret the expression `any widow' as the widow of a Hindu merely so long as she remained a Hindu. There is no doubt that the words were not intended to apply to a Christian or Muslim widow who had never been a Hindu at any time. Nor, in our opinion, could it have been intended that Hindu widows should be allowed to escape the disability imposed upon them by section 2 by renouncing their religion prior to their marriage. The argument against their retaining any interest in their husbands' estates after re-marriage would remain with equal force, if it did not indeed, become stronger, in the case of conversion prior to remarriage. In our opinion, the view that the word remarriage' in section 2 refers only to re-marriage under the Act is too narrow a view and mistaken, firstly, because the words `under the Act, do not occur in the section, and secondly, as the Act is intended merely to remove obstacles to the re-marriage of Hindu widows, and not to prescrible the kind of remarriage the widow of a Hindu may contract. Section 1 of the Act no doubt speaks of to Hindu marrying ; it deals with the validity of the marriage and the legitimacy of the issue of such marriage. Section 2, however, deals with a different matter, namely, the question of the widow's retaining interest in her husband's property on remarriage ; and, in our opinion, it is not necessary to assume that the remarriage referred to in that section means no more and no less than the kind of remarriage which section 1 legalises and validates. "We concur in the view taken by the majority of Judges in the Full Bench cases of Matungini Gupta v. Ram Rutton Roy and Pitta Tayaramma v. Chatakondu Sivayya that the expression `any widows' includes all widows who being Hindus became widows, and is wide enough to cover the case of such a widow remarrying a Hindu or a member of another religion."

11. In the Patna High Court this controversy arose in the case of Suruj Jote Kuer v. Atta Kumari (I L R 1 Pat. 706). Their Lordships Cauts and Adami, JJ. on a review of the decisions of the High Courts of Calcutta, Bombay, Madras and Allahabad held that both under the Act as well as under the Hindu Law a Hindu widow loses her previous husband's estate on remarriage.

12. The Allahabad High Court is the only High Court which takes the view that a Hindu widow by remarriage after her con?version to another religion does not lose. In the case of Abdul Aziz Khan v. Nirma (I L R 35 All. 466) the Allahabad High Court held that the word "widow" in section 2 of the Act could only mean a "Hindu widow" so that if the Hindu. widow changed her religion she could no longer be called a Hindu widow so as to make section 2 of the Act applicable to her case. The fallacy in this reasoning has been pointed out by the Bombay High Court in the passage quoted above, and I respectfully agree with the views expressed by their Lordships of the Bombay High Court.

13. The learned Advocate for the appellant also relies on the case of Bhola Umar v. Kausilla and another a Full Bench decision of the Allahabad High Court in support of his contention. The question that was referred to the Full Bench of the Allahabad High Court in that case was : "Does a Hindu widow who remarries in accordance with a custom of her caste forfeit thereby her right in the estate of her first husband ?" The answer returned by the Full Bench is as follows : "In our opinion section 2, Act XV of 1856 does not apply to the case of those widows who are entitled under the custom of their caste to remarry, and are not bound to take advantage of the provisions of the Act. Accordingly there is no forfeiture of the Hindu widows' estate on re-marriage under the Act in such a case. We are further of opinion that the proof of mere custom of remarriages would not be sufficient to involve forfeiture under the Hindu Law, and that it would be necessary for the party claiming that the estate has been forfeited on account of remarriage to prove that there is a custom of such forfeiture in such a contingency."

14. No custom of remarriage has either been pleaded or sought to be proved in the present case, and hence the above Full Bench decision of the Allahabad High Court is not at all in point. It may, however. be mentioned here that the identical question about the rights of a re-married Hindu widow to her deceased Husband's property, when custom allows such re-marriage, arose !n this Court in the case of Soudamini Roy Malakar v. Narendra Chandra Barman and another (4 D L R 492). Their Lordships Shahabud?din, C. J., and Faiyaz Ali, J. found themselves unable to agree with the view expressed in the above Allahabad Full Bench case, and their Lordships held that under the Act as well under the Hindu Law a Hindu widow by remarriage forfeits her right to her deceas?ed husband's properties even if the remarriage is allowed by the custom of her caste. Their Lordships added that on the principle of stare decisis also their Lordships would hesitate to disturb, the view of law which held the field for a long time in Bengal. he Full Bench case reported in I L R 19 Cal. 289 was decided in 1891, and since then the view held therein has prevailed in Bengal, and on the principle of stare decisis it should not be disturbed. The preponderance of judicial opinion in the different High Courts also support that view.

15. It must accordingly be held that the plaintiff by her remarriage forfeited that property she inherited from Fatik, and her suit must consequently fail.

16. The result, therefore, is that this appeal is dismissed with costs to the contesting respondent.

17. Leave asked for under Clause 15 of the Letters Patent is granted. K. B. A. ????????? Appeal dismissed.