It is very well true that if we have to deal with rights of a
particular party, we have to consider the provisions of relevant law in
its entirety. Section 14 of the Act of 1956 makes the female Hindu
being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. There is emphasis ‘on the date when succession opens’ as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings “if on the date the succession opens” does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in
Section 24 of the Act of 1956. {Para 14}
15] In other words, if the widow has not re-married when the
succession opens, the disqualification under Section 24 of the Act of
1956 will not be applicable. Admittedly, defendant-Sunanda re-married
in May, 1991 (i.e. after opening of succession on 19th April, 1991). For
the above discussion, contention of the appellant so as to disqualify the
defendant-Sunanda cannot be accepted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.144 OF 2007
Smt. Jaiwantabai Shenuji Wankhade Vs Sunanda w/o Ganesh Dode,
CORAM : S.M. MODAK, J.
PRONOUNCED ON : 23 rd AUGUST, 2021
JUDGMENT:-
Heard learned Advocate Shri Ved Deshpande for the
Appellant, learned Advocate Shri J.B. Gandhi for respondent No.1 and
learned Advocate Shri N.P. Lambat for respondent No.2.
02] This Court while admitting the appeal has framed following
substantial question of law—
a) “whether a widow can claim the estate of the husband after
re-marriage”?
At that time, this Court has referred to the judgment in the case of Smt.
Kasturi Devi Vs. Deputy Director of Consolidation & Others 1. I have
perused that judgment. It is no doubt true that “the effect of
re-marriage on her right to claim share in the property” was considered
in that judgment. However, the status of that woman was that of a
mother and not of a widow. So to say there was a claim for inheritance
not as a widow but as mother. It has been held that there will not be
any effect on her share of inheritance from a son even after she
re-married. Whereas in the case before us the issue is what is the effect
on widow’s right of inheritance (not in the property of a son) on the
property of the deceased husband.
03] The present appellant is the mother of the deceased-Anil
Shenuji Wankhade. He was working as a pointsman with Indian
Railways. He was married to present respondent No.1. Parties will be
referred to by their original status before the trial Court.
1 AIR 1976 SC 2595
04] Anil Wankhade expired in an accident on 19th April, 1991. He
was entitled for dues from the Indian Railways. Deceased-Anil
nominated his wife/defendant-Sunanda. It has come on record that
there was a dispute in between deceased-Anil and wife-Sunanda. She
was staying away from the husband-Anil.
05] After the death of husband-Anil, defendant-Sunanda
re-married in the month of May, 1991 with one Ganesh Saligram Dode.
Plaintiff-Jaiwantabai claimed dues from the Indian Railways in the
year 1993. She also informed to the employer about re-marriage of
defendant-Sunanda. Indian Railways/employer demanded a certificate
of marriage. However, it could not be submitted. Employer disbursed
dues of Rs.65,000/- in favour of defendant-Sunanda.
06] As plaintiff-Jaiwantabai could not find favour from the
employer, she filed a suit before the Civil Judge (Junior Division),
Akola. She sought declaration about status of defendant-Sunanda and
also injunction restraining the employer from paying the dues to
defendant-Sunanda.
07] The plaintiff gave evidence and examined herself and two
witnesses namely Shrirang Ingde-PW-2 (who was aware about strained
relationship in between the spouses and cohabitation with second
husband) and Laxman Hiwrale-PW-3 (who attended the marriage of
defendant-Sunanda). Both the defendants have not given the oral
evidence. The trial Court found favour with the plaintiff and decreed
the suit in toto.
08] The Indian Railways were directed to pay all the dues to
plaintiff–Jaiwantabai as they have already released the dues to
defendant-Sunanda. They have preferred the first appeal before the
District Court, Akola. The first Appellate Court after hearing all the
sides, was pleased to modify the judgment. The first Appellate Court
recognized the share of defendant-Sunanda. The direction was given to
the Indian Railways to disburse the amount to plaintiff-Jaiwantabai and
defendant-Sunanda. It is this judgment, which is challenged before this
Court by the original plaintiff. The trial Court has accepted the claim of
the plaintiff in toto, whereas the first Appellate Court has also
recognized the share of defendant-Sunanda. That is why, the plaintiff is
aggrieved by the first Appellate Court’s judgment.
SUBMISSION
09] According to the learned Advocate for the appellant after the
re-marriage, defendant-Sunanda looses all her rights in the property of
deceased-Anil. He also criticized the conduct of the employer in
releasing the funds by not insisting upon succession certificate (but
only on the basis of nomination). He has prayed for issuing direction to
the Indian Railways to recover the amount from defendant-Sunanda
and to pay it to her in entirety. Whereas according to learned Advocate
for defendant-Sunanda, the Hindu Widow’s Re-marriage Act, 1856
(hereinafter referred to as the “Act of 1856”) is repealed in the year
1983 and even Section 24 is omitted from the Hindu Succession Act,
1956 (hereinafter referred to as the “Act of 1956”) w.e.f. 9th September,
2005. He relied upon a judgment in the case of Sanjay Purushottam
Patankar Vs. Prajakta Pramnod Patil2. Whereas learned Advocate for
respondent No.2/employer submitted that the amount has already
been disbursed to the defendant-Sunanda on the basis of valid
nomination and it is for the plaintiff to recover from the defendant-
Sunanda, if she succeeds.
10] On hearing the submissions and perusing the records,
following facts were proved—
a) marriage in between defendant-Sunanda and deceased-Anil,
b) deceased-Anil working with Indian Railways as a pointsman,
c) death of Anil on 19th April, 1991,
d) relationship of plaintiff-Jaiwantabai as a mother with deceased
Anil,
e) disbursal of the amount by Indian Railways to defendant-
Sunanda,
f) re-marriage of Sunanda in the month of May, 1991.
2 2015 (6) Mh.L.J. 533
11] Trial Court believed the theory of second marriage. Even
though trial Court had given negative declaration against defendant-
Sunanda, she has neither preferred first appeal nor filed the crossobjection.
Even though the first Appellate Court while recognizing the
claim of defendant-Sunanda has not upset the finding about second
marriage of Sunanda. On the point of disbursement by the employer,
the findings of the first Appellate Court are as follows:-
“13. In the circumstances if appellant has disbursed amount
without obtaining succession certificate from respondent No.2
and without being her name recorded as of nominee in service
record of deceased Anil then in that circumstances the
appellant is liable to pay appropriate share of respondent No.1
from those dues to her”.
However, subsequently the first Appellate Court observed thus:-
“13. However, if by observing due procedure the appellant has
effected payment to respondent No.2 that too as a nominee of
deceased Anil then in that circumstance respondent No.1 has
to file proper proceeding for recovery of her appropriate share
from that amount”.
First Appellate Court has directed that plaintiff and defendant-Sunanda
are entitled to get appropriate share.
PROVISIONS OF LAW
12] It is true that the dues from employer is nothing but the
self-acquired property of the deceased-Anil. It is also true that as per
Section 2 of the Act of 1856 on re-marriage, the rights and interests for
deceased husband’s property ceases and then there will be
determination as if she have then died. It is also true that the Act of
1856 was repealed in the year 1983. It is pertinent to note that when
the Hindu Succession Act was drafted in the year 1956, Section 24 was
incorporated. The widow losses right if she remarries on the date when
succession opens. It is also true that Section 24 is omitted from the Act
of 1956 w.e.f. 9th September, 2005. Deceased-Anil expired on 19th
April, 1991, so on that date succession to his property opened. So, we
have to see what was the position in force at that time. The Act of 1856
was already repealed. Section 24 was very much there on the statute
book. So, on the basis of that provision, whether it can be said that
defendant-Sunanda can be excluded from succeeding the property of
deceased-Anil?
13] The Division Bench of this Court (Principal Seat) in the case
of Sanjay Purushottam Patankar (supra), was pleased to refuse stay to
the execution of the order passed in testamentary petition. Succession
certificate was granted in favour of the wife (even though she
re-married) in respect of estate of deceased husband. Then the mother
filed separate petition for grant of succession certificate. She asked for
stay of the order passed in first testamentary petition. It was refused by
learned Single Judge. It was confirmed by the Division Bench of this
Court. The provisions of Section 14 of the Act of 1956 was considered.
14] It is very well true that if we have to deal with rights of a
particular party, we have to consider the provisions of relevant law in
its entirety. Section 14 of the Act of 1956 makes the female Hindu
being absolute owner if she possessed the property. Whereas Section 24 of the said Act disinherits the widow if she re-marries. Here this Court wants to note the difference in between the wordings of Section 2 of the Act of 1856 on one hand and the wordings of Section 24 of the Act of 1956. There is emphasis ‘on the date when succession opens’ as per Section 24 of the Act of 1956. The status of the widow being remarried continuing to be widow must be on the date when succession opens. The wordings “if on the date the succession opens” does not find place in Section 2 of the Act of 1856. So, we have to respect the intention of the legislators while incorporating these provisions in
Section 24 of the Act of 1956.
15] In other words, if the widow has not re-married when the
succession opens, the disqualification under Section 24 of the Act of
1956 will not be applicable. Admittedly, defendant-Sunanda re-married
in May, 1991 (i.e. after opening of succession on 19th April, 1991). For
the above discussion, contention of the appellant so as to disqualify the
defendant-Sunanda cannot be accepted. The plaintiff-Jaiwantabai and
defendant-Sunanda being class 1st heirs are entitled to get equal share
in the property of deceased-Anil. As contemplated under Section 10 of
the Act of 1956, the widow (Rule 1) and the mother (Rule 2) of the
intestate takes one share each. So both are entitled to get 50% from the
property of deceased-Anil. For the above discussion, I am inclined to
answer the substantial question in the affirmative on the basis of the
facts involved in this appeal.
ABOUT RECOVERY
16] There is a request to issue direction to the employer to
recover the amount coming to the share of plaintiff from defendant-
Sunanda and give it to the plaintiff. The employer has disbursed the
amount to the nominee-Sunanda. She is defendant No.2. She has
received the amount of Rs.65,000/- i.e. the entire amount. She is not
entitled to get whole amount. She is bound to return 50% of the
amount to plaintiff/appellant. The doctrine of unjust enrichment
applies. It is true that before the trial Court, the plaintiff has not asked
for refund of half of amount from defendant No.1. Does it mean to say
that Court should shut its eyes and handicapped. The answer is
certainly no. If the appellant is left within the option of filing execution
only with a paper decree of entitlement, she will be put up aain into
vagrancy. The provisions of Order 41 Rule 33 of CPC empowers the
appellate Court to pass appropriate orders to do complete justice. This
has to be with interest of 6%. Hence, the following order :
O R D E R
I. The appeal is partly allowed.
II. The judgment passed by 5th Adhoc Additional District Judge,
Akola in R.C.A. No.175/2002 on 27/01/2005 is modified as follows :
(a) The respondent-defendant No.1 Sunanda w/o Ganesh
Dode is directed to refund 50% of the amount received
by her towards dues of deceased husband from
respondent No.2 – Central Railway within a period of
three months from today to the appellant.
(b) Respondent No.1 to refund the amount with 6%
interest from the date of receipt by her till payment.
(c) Respondent No.1 (in her past name or new name) to
file an affidavit before the trial Court within two
months from today about exact amount received by her
from respondent No.2.
(d) The trial Court to accept that affidavit and keep it on
record.
(e) The appellant is at liberty to file execution proceeding.
(f) The executing Court is at liberty to execute the decree
by passing appropriate orders.
(g) Respondent No.2 is also directed to file an affidavit
before the trial Court describing the amount disbursed
by them to respondent No.1 and under which head.
III. Parties to bear their own costs.
IV. The appeal is disposed of.
(S.M. MODAK, J.)
No comments:
Post a Comment