On a careful perusal of the aforesaid provision, it is quite vivid that under Section 14(1) of the Act of 1956, to get attracted, the property must be possessed by the female Hindu on coming into force of the Act of 1956. The object of this provision is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by woman on the date of commencement of the Act as a limited owner, into an absolute estate. {Para 17}
19. Their Lordships of the Supreme Court in the matter of Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others (1970) 1 SCC 786 while considering the meaning of “any property possessed by a female Hindu” quoted with approval the following words of Justice P.N. Mookherjee in the matter of Gostha Behari v. Haridas Samanta AIR 1957 Cal 557 (at page 559):
“The opening words in “property possessed by a female
Hindu” obviously mean that to come within the purview of
the section the property must be in possession of the
female concerned at the date of the commencement of the
Act. They clearly contemplate the female's possession
when the Act came into force. That possession might have
been either actual or constructive or in any form recognised
by law, but unless the female Hindu, whose limited estate
in the disputed property is claimed to have been
transformed into absolute estate under this particular
section, was at least in such possession, taking the word
“possession” in its widest connotation, when the Act came
into force, the section would not apply.”
and Their Lordships held :
“In our opinion, the view expressed above is the correct
view as to how the words “any property possessed by a
female Hindu” should be interpreted.”
20. In Eramma (supra), the Supreme Court held that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property, and further held that the need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.
21. In the matter of Dindayal and another v. Rajaram AIR 1970 SC 1019 it was held that before any property can be said to be “possessed” by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property, and (b) she must have been in possession of that property either actually or constructively.
22. Thereafter, in the matter of V. Tulasamma and others v. Sesha Reddy (Dead) by LRs. (1977) 3 SCC 99, their Lordships considered the real nature of incidence of Hindu widow's right of maintenance and scope and ambit of Section 14(1) of the Act of 1956 and held as under: -
“The words “possessed by” used by the Legislature in
Section 14(1) are of the widest possible amplitude and
include the State of owning a property even though the
owner is not in actual or physical possession of the same.
Thus, where a widow gets a share in the property under a
preliminary decree before or at the time when the 1956 Act
had been passed but had not been given actual possession
under a final decree the property would be deemed to be
possessed by her and by force of Section 14(1) she would
get absolute interest in the property. It is equally well
settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the
section does not contemplate the possession of any rank
trespasser without any right or title.”
23. In the matter of Sadhu Singh v. Gurdwara Sahib Narike and others9, the Supreme Court pointed out the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play and held that the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be, are the essential ingredients in determining whether sub-section (1) of Section 14 of the Act of 1956 would come into play. It was further held that if she takes it as an heir under the Act, she takes it absolutely.
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.356 of 2001
Judgment delivered on: 28-6-2021
Loknath Vs Sindhu, W/o Akhil Kolta,
Coram:
Hon'ble Shri Justice Sanjay K. Agrawal
1. This second appeal preferred by the original plaintiff / legal
representatives of the plaintiff / appellants herein was admitted for
hearing on 4-11-2015 by formulating the following three substantial
questions of law: -
“1. Whether the learned lower appellate Court was
justified in law in reversing the decree passed by the trial
Court by recording a finding of partition prior to death of
Ghashiram in 1942 in the absence of there being any issue
framed?
2. Whether the learned appellate Court was justified in
law in holding partition amongst Mohan Abhiram
Goverdhan and Jeeverdhan in the absence of legally
admissible evidence in that regard?
3. Whether the plaintiff is entitled to declaration that
after death of Ghashiram in 1942, defendant Kiyabai and
Sindhu were not entitled to any share in the joint family
property of Mohan Ghashiram, Goverdhan and
Jeeverdhan?”
(For the sake of convenience, parties would be referred
hereinafter as per their status shown and ranking given in the suit
before the trial Court.)
2. The following genealogical tree, as shown in para 2 of the plaint,
would demonstrate the relationship among the parties: -
3. The suit property was originally held by Sugriv, he had four sons
namely, Mohan, Abhiram, Goverdhan and Jeeverdhan. Mohan died
issue-less, whereas Goverdhan had one son Loknath who is the
plaintiff herein and Ghasi, son of Abhiram, died in the year 1942.
Defendants No.1 and 2 are wife and daughter, respectively, of Ghasi.
Defendant No.1 died during the pendency of civil suit, whereas
defendants No.3 to 6 are sons and daughter of Jeeverdhan. The
dispute relates to the share of Ghasi who died in the year 1942.
4. It is the case of the plaintiff that since Ghasi died in the year 1942 and
his wife defendant No.1 entered into second marriage in the year
1954-55 in chudi form, therefore, she ceases to have any interest in
the suit property and would be governed by clause 29 of the Raigarh
State Wajib-ul-arz and as such, she did not become the full owner of
the suit property being not in possession of the property held by Ghasi
Sugriv (Dead)
Mohan (Dead)
1970
Abhiram (Dead) Govardhan (Dead) Jeevardhan (Dead)
Ghasi (Dead) 1942 Loknath (Son)
Plaintiff
Sindhu (Daughter)
Defendant No. 2
Kiya (Wife)
Defendant No. 1
Kishorchandra
Defendant No. 3
Rishikesh
Defendant No. 4
Diwakar
Defendant No. 5
Tillottama
Defendant No. 6
by virtue of Section 14(1) of the Hindu Succession Act, 1956.
Therefore, defendants No.1 & 2 have no right and title over the suit
property situated at Village Chichor Umariya in Account Nos.276 &
277 and as such, defendants No.1 & 2 be restrained from interfering
with the possession of the plaintiff and the plaintiff be declared to be
the title holder.
5. Defendants No.1 & 2 have filed their joint written statement and
opposed the averments made in the plaint stating inter alia that after
death of Ghasi, defendants No.1 & 2 have succeeded the property
and are in continuing possession of the same. They have further
pleaded that the order of the Tahsildar dated 28-5-1984 entering their
names in the revenue record is in accordance with law and there is no
illegality in the said order. Defendant No.1 has never entered into any
second marriage and as such, the civil suit deserves to be dismissed.
6. The trial Court after appreciating oral and documentary evidence
available on record partly decreed the suit holding that clause 29 of
the Raigarh State Wajib-ul-arz applies in the present case and
defendant No.1 had already entered into second marriage in 1954-55
and as such, she would only be entitled for 5 khandi of land for
maintenance. In the appeal preferred by defendant No.2 questioning
the judgment & decree of the trial Court, the first appellate Court
allowed the appeal of defendant No.2 and held that in the light of
Section 14(1) of the Hindu Succession Act, 1956, Kiya Bai –
defendant No.1, had become full owner of the suit property on coming
into force of the Hindu Succession Act, 1956 and therefore the plaintiff
is not entitled for any decree and set aside the judgment & decree of
the trial Court, feeling aggrieved against which this second appeal has
been preferred by the plaintiff in which substantial questions of law
have been formulated which have been set-out in the opening
paragraph of this judgment for the sake of completeness.
7. Mr. Neelkanth Malaviya, learned counsel appearing for the appellants
herein / LRs of the plaintiff, would submit that the first appellate Court
has clearly erred in holding that Section 14(1) of the Hindu Succession
Act, 1956 would apply and defendant No.1 Kiya Bai & defendant No.2
have become full owners of the suit property as they remained in
possession thereof on the date of coming into force of the Hindu
Succession Act, 1956, and further erred in holding that clause 29 of
the Raigarh State Wajib-ul-arz would not apply. He would further
submit that the finding recorded by the first appellate Court that Kiya
Bai has not entered into second marriage in 1954-55 is erroneous
finding being contrary to record and it is against the admission made
by defendant No.1 / her daughter Sindhu and therefore the judgment
of the first appellate Court deserves to be set aside. He relied upon
the decisions of the Supreme Court in the matters of Eramma v.
Veerupana and others1, Ajit Kaur alias Surjit Kaur v. Darshan Singh
(dead) through legal representatives and others2, Vineeta Sharma v.
Rakesh Sharma and others3 and that of the M.P. High Court in the
matter of Lochan Prasad v. Gautam Brindaban4 to buttress his
submission.
8. None present for respondent No.1 herein / defendant No.2, though
served.
1 AIR 1966 SC 1879
2 (2019) 13 SCC 70
3 (2020) 9 SCC 1
4 1959 M.P.L.J. 357
9. I have heard learned counsel for the appellants herein / LRs of the
plaintiff and considered his submissions and also went through the
record with utmost circumspection.
10. The suit property was originally held by Sugriv, as noticed hereinabove,
he had four sons namely, Mohan, Abhiram, Goverdhan and
Jeeverdhan. Mohan died issue-less. Abhiram had one son Ghasi,
who died in the year 1942, whose wife and daughter are defendants
No.1 and 2, respectively. Defendant No.1 Kiya Bai died during the
pendency of civil suit. Goverdhan had one son namely, Loknath, who
is the plaintiff herein. Defendants No.3 to 6 are sons and daughter of
Jeeverdhan. The dispute relates to the share of Ghasi who died
admittedly, in the year 1942. It is the case of the plaintiff that since the
suit property was undivided amongst Mohan, Abhiram, Goverdhan &
Jeeverdhan and since Ghasi died in the year 1942, defendants No.1 &
2 would get no share in the property being governed by clause 29 of
the Raigarh State Wajib-ul-arz, as such, defendants No.1 & 2 had no
right except the right of maintenance in terms of the 5 khandi of land
which has been given to defendant No.2, therefore, decree for
declaration of title declaring the mutation order dated 28-5-1984 in
favour of defendants No.1 & 2 and for restraining them from interfering
with the possession shown in the suit property – Account Nos.276 &
277 be passed. It was also pleaded that defendant No.1 – wife of
Ghasiram, lived in Village Chichor Umariya till 1954-55, but
immediately after the marriage of her daughter defendant No.2, she
married some one else in chudi form and left the village and as such,
she will not get any share in the suit property.
11. Defendants No.1 & 2 filed their separate written statement jointly
stating inter alia that defendant No.1 after the death of Ghasi in the
year 1942, remained in the village and stayed in the house left by
Ghasi and she never remarried, though she left the village for some
time, but she never remarried and since partition has already took
place in the lifetime of Ghasi, S/o Abhiram, therefore, after death of
Ghasi, defendants No.1 & 2 remained in possession of the suit
property by cultivating the suit land and the name of defendant No.1
has also been recorded in the revenue records vide order dated 28-5-
1984 in few rounds of revenue proceeding, as such, the plaintiff is not
entitled to get the order of mutation annulled and for permanent
injunction.
12. The trial Court held that since defendant No.1 remarried in chudi form
in 1954-55 and defendants No.1 & 2 were not in possession of the suit
property and the suit property was the joint family property, therefore,
clause 29 of the Raigarh State Wajib-ul-arz would prevail and
defendants No.1 & 2 are not entitled for any share in the property
which the first appellate Court reversed holding that during the lifetime
of Ghasi and during the lifetime of his father Abhiram, the suit property
was partitioned and defendant No.1 remained in possession of the
suit property after the death of her Ghasiram – her husband and father
of defendant No.2, and after coming into force of the Hindu
Succession Act, 1956 with effect from 17-6-1956, defendant No.1
became the full owner and as such, the plaintiff is not entitled for any
decree and accordingly, allowed the appeal and set aside the
judgment and decree of the trial Court. Though the plaintiff pleaded
that during the lifetime of Ghasi / his father, the suit property has not
been partitioned, but the first appellate Court on the basis of
appreciation of oral and documentary evidence on record has clearly
reached to the conclusion that the property was partitioned and on
partition, the suit property fell in the share of Ghasi and after his
death, on behalf of defendants No.1 & 2, plaintiff Loknath was in
cultivating possession over the suit land.
13. Plaintiff Loknath (PW-1) in his cross-examination para 8 has clearly
admitted that he used to cultivate the land and in lieu of cultivation, the
crop is given to defendants No.1 & 2 and once the revenue litigation
started, he stopped giving crop. Likewise, Janardan (PW-2) has
stated that Goverdhan, who is plaintiff’s father, used to cultivate the
land on behalf of defendants No.1 & 2 and the crop is being given in
lieu of cultivation.
14. Similarly, defendant No.2 Sindhu (DW-2) in her examination-in-chief
has clearly admitted that after the death of her father, for two years,
her mother cultivated the suit land and thereafter, Goverdhan – father
of the plaintiff, started cultivation and used to give crop in lieu of
cultivation of the suit land. Even on the suggestion made on behalf of
the plaintiff, defendant No.2 maintained that for 2-3 years her mother
cultivated the suit land. Even the other witness Aanandram (DW-2)
has also stated that after the death of Ghasi, on behalf of defendant
No.1 being widow, Goverdhan – father of the plaintiff, used to cultivate
the land and give the share of her crop in lieu of cultivation.
15. As such, there is overwhelming evidence available on record to hold
that after death of Ghasi , defendant No.1 cultivated the land for some
time and thereafter, on her behalf, the plaintiff’s father started
cultivating and used to give share of crop in lieu of cultivation of her
land. Therefore, it is established position on record that the suit land
fell in the share of Ghasi after partition during the lifetime of Ghasi and
after death of Ghasi defendant No.1 came in possession of the suit
land and on her behalf, the plaintiff’s father was cultivating the land
and giving the share of crop to defendant No.1. It is also established
position on record that defendant No.1 remained in possession of the
suit land till her death i.e. during the pendency of civil suit, as her
name was deleted by order dated 9-5-2000. Therefore, the fact
remains that defendant No.1 remained in physical position of the suit
land even after coming into force of the Hindu Succession Act, 1956
and her limited right, if any, has ripened into absolute title by virtue of
Section 14(1) of the Hindu Succession Act, 1956 (for short, ‘the Act of
1956’).
16. At this stage, it would be appropriate to notice Section 14(1) of the Act
of 1956 which states as under: -
“14. Property of a female Hindu to be her absolute
property.—(1) 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.
Explanation.—In this sub-section, “property” includes
both movable and immovable property acquired by a
female Hindu by inheritance or devise, or at a partition, or
in lieu of maintenance or arrears of maintenance, or by gift
from any person, whether a relative or not, before, at or
after her marriage, or by her own skill or exertion, or by
purchase or by prescription, or in any other manner
whatsoever, and also any such property held by her as
stridhana immediately before the commencement of this
Act.”
17. On a careful perusal of the aforesaid provision, it is quite vivid that
under Section 14(1) of the Act of 1956, to get attracted, the property
must be possessed by the female Hindu on coming into force of the
Act of 1956. The object of this provision is firstly, to remove the
disability of a female to acquire and hold property as an absolute
owner and secondly, to convert any estate already held by woman on
the date of commencement of the Act as a limited owner, into an
absolute estate.
18. In Mayne on Hindu Law, 15th Edn., page 1171, qua Section 14(1) of
the Act of 1956, it is stated as under: —
“on a reading of sub-section (1) with Explanation, it is clear
that wherever the property was possessed by a female
Hindu as a limited estate, it would become on and from the
date of commencement of the Act her absolute property.
However, if she acquires property after the Act with a
restricted estate, sub-section (2) applies. Such acquisition
may be under the terms of a gift, will or other instrument or
a decree or order or award.”
19. Their Lordships of the Supreme Court in the matter of Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others (1970) 1 SCC 786 while considering the meaning of “any property possessed by a female Hindu” quoted with approval the following words of Justice P.N. Mookherjee in the matter of Gostha Behari v. Haridas Samanta AIR 1957 Cal 557 (at page 559):
“The opening words in “property possessed by a female
Hindu” obviously mean that to come within the purview of
the section the property must be in possession of the
female concerned at the date of the commencement of the
Act. They clearly contemplate the female's possession
when the Act came into force. That possession might have
been either actual or constructive or in any form recognised
by law, but unless the female Hindu, whose limited estate
in the disputed property is claimed to have been
transformed into absolute estate under this particular
section, was at least in such possession, taking the word
“possession” in its widest connotation, when the Act came
into force, the section would not apply.”
and Their Lordships held :
“In our opinion, the view expressed above is the correct
view as to how the words “any property possessed by a
female Hindu” should be interpreted.”
20. In Eramma (supra), the Supreme Court held that the property possessed by a female Hindu as contemplated in the Section is clearly the property to which she has acquired some kind of title whether before or after the commencement of the Act and negatived a claim under Section 14(1) of the Act in view of the fact that the female Hindu possessed the property on the date of the Act by way of a trespass after she had validly gifted away the property, and further held that the need for possession with a semblance of right as on the date of the coming into force of the Hindu Succession Act was thus emphasized.
21. In the matter of Dindayal and another v. Rajaram AIR 1970 SC 1019 it was held that before any property can be said to be “possessed” by a Hindu woman as provided in Section 14(1) of the Hindu Succession Act, two things are necessary (a) she must have a right to the possession of that property, and (b) she must have been in possession of that property either actually or constructively.
22. Thereafter, in the matter of V. Tulasamma and others v. Sesha Reddy (Dead) by LRs. (1977) 3 SCC 99, their Lordships considered the real nature of incidence of Hindu widow's right of maintenance and scope and ambit of Section 14(1) of the Act of 1956 and held as under: -
“The words “possessed by” used by the Legislature in
Section 14(1) are of the widest possible amplitude and
include the State of owning a property even though the
owner is not in actual or physical possession of the same.
Thus, where a widow gets a share in the property under a
preliminary decree before or at the time when the 1956 Act
had been passed but had not been given actual possession
under a final decree the property would be deemed to be
possessed by her and by force of Section 14(1) she would
get absolute interest in the property. It is equally well
settled that the possession of the widow, however, must be
under some vestige of a claim, right or title, because the
section does not contemplate the possession of any rank
trespasser without any right or title.”
23. In the matter of Sadhu Singh v. Gurdwara Sahib Narike and others9, the Supreme Court pointed out the essential ingredients in
determining whether sub-section (1) of Section 14 of the Act of 1956
would come into play and held that the antecedents of the property,
the possession of the property as on the date of the Act and the
existence of a right in the female over it, however limited it may be,
are the essential ingredients in determining whether sub-section (1) of
Section 14 of the Act of 1956 would come into play. It was further held
that if she takes it as an heir under the Act, she takes it absolutely.
24. Similar proposition has been laid down by the Supreme Court in the
matter of Sri Ramakrishna Mutt represented by Manager v. M.
Maheswaran and others10 reiterating and reaffirming the principles of
law laid down in Gummalapura Taggina Matada Kotturuswami (supra).
25. In the matter of Shyam Narayan Singh and others v. Rama Kant Singh
and others11, the Supreme Court while considering the provision
contained in Section 14(1) of the Act of 1956 held as under: -
“5. On an analysis of Section 14(1) of the Hindu
Succession Act of 1956, it is evident that the Legislature
has abolished the concept of limited ownership in respect
of a Hindu female and has enacted that any property
possessed by her would thereafter be held by her as a full
9 AIR 2006 SC 3282
10 (2011) 1 SCC 68
11 2018(1) RCR (Civil) 981 : 2017 SCC OnLine SC 1985
owner. Section 14(1) would come into operation if the
property at the point of time when she has an occasion to
claim or assert a title thereto. Or, in other words, at the
point of time when her right to the said property is called
into question. The legal effect of Section 14(1) would be
that after the coming into operation of the Act there would
be no property in respect of which it could be contended by
anyone that a Hindu female is only a limited owner and not
a full owner. (We are for the moment not concerned with
the fact that Sub-section (2) of Section 14 which provides
that Section 14(1) will not prevent creating a restricted
estate in favour of a Hindu female either by gift or will or
any instrument or decree of a Civil Court or award provided
the very document creating title unto her confers a
restricted estate on her). There is nothing in Section 14
which supports the proposition that a Hindu female should
be in actual physical possession or in constructive
possession of any property on the date of the coming into
operation of the Act. The expression 'possessed' has been
used in the sense of having a right to the property or
control over the property. The expression 'any property
possessed by a Hindu female whether acquired before or
after the commencement of the Act' on an analysis yields to
the following interpretation:
(1) Any property possessed by a Hindu female acquired
before the commencement of the Act will be held by her
as a full owner thereof and not as a limited owner.
(2) Any property possessed by a Hindu female acquired
after the commencement of the Act will be held as a full
owner thereof and not as a limited owner.”
26. Reverting to the facts of the present case in the light of the aforesaid
proposition of law laid down by their Lordships of the Supreme Court
in the above-stated judgments (supra), admittedly, Ghasi died in the
year 1942 by which his widow Kiya Bai – defendant No.1 became the
limited owner of his share by virtue of the provisions contained in
Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and
after coming into force of the Act of 1956 and by operation of Section
14(1) of the Act of 1956 with effect from 17-6-1956, her limited right in
the suit property would blossom into absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become absolute owner of the suit property as on date.
27. The contention raised on behalf of the plaintiff based on clause 29 of
the Raigarh State Wajib-ul-arz relying upon the decision of the M.P.
High Court in Lochan Prasad (supra) is not helpful to the plaintiff.
Clause 29 of the Raigarh State Wajib-ul-arz states as under: -
“When a ryot dies, his holding shall descend to a son or
son’s son or to collaterals who were joint with the ryot at
the time of his death. In default of such heirs, it will
descend to his widow for her life-time or until she is
remarried to a man other than her late husband’s younger
brother; but it shall not descend to collaterals who were not
joint with the deceased at the time of his death. Daughters
and their offspring shall have no right to inherit. In default
of heirs as above, the holding of the deceased ryot shall be
at the disposal of the gaontia.”
28. Since in this case, defendant No.1 had already became limited owner before the coming into force of the Act of 1956 and thereafter, her limited right has became ripened into absolute right, clause 29 of the Raigarh State Wajib-ul-arz would not be applicable, as such, the
arguments based on this point, is rejected.
29. Now, one more objection is that since defendant No.1 Kiya Bai had already entered into marriage with some one else in 1954-55 after marriage of her daughter, therefore, she had lost her right over the
property deserves to be noticed. In para 5 of the plaint, it has simply
been stated that defendant No.1 – widow of Ghasi, remained at
Village Chichor Umariya till 1954-55, but after marriage of her
daughter – defendant No.2, she left the village after marrying some
one else in chudi form, which defendants No.1 & 2 have clearly and
specifically denied.
30. At this stage, it would be appropriate to notice Section 2 of the Hindu
Widows’ Remarriage Act, 1856 (for short, ‘the Act of 1856’) which
states as under: -
“2. Rights of widow in deceased husband's property to
cease on her remarriage.—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 remarry, 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.”
31. Section 6 of the Act of 1856 states about ceremonies required for
remarriage which is as under: -
“6. Ceremonies constituting valid marriage to have same
effect on widows marriage—Whatever words spoken,
ceremonies performed or engagements made on the
marriage of a Hindu female who has not been previously
married, are sufficient to constitute a valid marriage shall
have the same effect if spoken, performed or made on the
marriage of a Hindu widow; and no marriage shall be
declared invalid on the ground that such words,
ceremonies or engagements are inapplicable to the case of
a widow.”
32. Thus, according to Section 6 of the Act of 1856, in case of remarriage, all the formalities for marriage are required to be proved. Section 6 of the Act contemplates the performance of almost the same ceremonies, which are required in the case of the marriage of Hindu female. In order to prove the remarriage, performance of all the ceremonies will have to be done in her remarriage. There can be no valid marriage in any form without a substantial performance of the requisite religious ceremonies. The performance of ceremonies,
therefore, is necessary for the completion of the marriage. The effect
of the valid remarriage is the widow losing her right in the property
inherited from the previous husband. Therefore, where remarriage is
set up as defence, it has to be strictly proved looking to devastating
consequence to be befallen upon widow in shape of depriving her
right to property.
33. Reverting to the facts of the present case, finally, in the light of the
aforesaid proposition, it would be apparent that in order to prove the
fact of remarriage, the plaintiff (PW-1) in his statement in para 1 has
simply stated that after marriage of defendant No.2, defendant No.1
has remarried some one else and left the village and in para 6 of his
cross-examination, he was not able to even tell the name of person
whom defendant No.1 has remarried and he has also clearly stated
that he had not seen defendant No.1 remarrying in chudi form and
even failed to state the date and year when Kiya Bai – defendant No.1
remarried in chudi form. Janardan (PW-2) has stated that defendant
No.1 absconded with one Gumpatiya Baba, but in cross-examination
he has failed to state particulars about the marriage and failed to state
about the marriage of defendant No.1 with that person (Baba).
Likewise, Khaju (PW-3), who is a hearsay witness, has clearly stated
that he was informed by the villagers that Kiya Bai had remarried
someone else and has left the village, but he also failed to clearly
state about the particulars of marriage and about the person with
whom Kiya Bai is said to have performed second marriage.
34. As such, there is no adequate pleading with regard to remarriage of
Kiya Bai with any person and therefore there is neither pleading of
remarriage of Kiya Bai with someone nor there is admissible evidence
on record to hold that Kiya Bai had remarried and lost her right to the
property, as it has already been held that the effect of remarriage
would be, widow loses her right in the property inherited from her
husband and unless the fact of remarriage is strictly proved after
observing the ceremonies required as per Section 6 of the Act of
1856, the fact of remarriage cannot be said to be established by which
the right to property, which is a constitutional right, is lost that too by
widow. Therefore, the finding recorded by the first appellate Court
that the suit property fell in the share of Ghasi and after death of
Ghasi, defendant No.1 remained in physical possession of the suit
land and by virtue of Section 3(2) of the Hindu Women’s Rights to
Property Act, 1937, defendant No.1 Kiya Bai became the limited
owner of the property during her lifetime till the coming into force of
the Act of 1956 and after coming into force of the Act of 1956, she
became the absolute of the suit property, is correct finding of fact
based on the evidence available on record, it is neither perverse nor
contrary to the record. I do not find any perversity or illegality in the
said finding recorded by the first appellate Court. The substantial
questions of law formulated are answered accordingly.
35. Resultantly, the first appellate Court is absolutely justified in granting
the appeal dismissing the suit filed against the defendants and as
such, the second appeal deserves to be and is accordingly dismissed
leaving the parties to bear their own cost(s).
36. Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal)
Judge
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