VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS. v. KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND ORS.
Citation: [1999] SUPP. 4 S.C.R. 522; 1999 INSC 528
Court: Supreme Court of India
Bench: S.B. MAJMUDAR , M. SRINIVASAN, U.C. BANERJEE
Judgment date:
Case summary
1999 INSC 528. Supreme Court of India judgment dated 1999-11-24. VELAMURI VENKATA SIVAPRASAD (DEAD) BY L.RS. v. KOTHURI VENKATESWARLU (DEAD) BY L.RS. AND...
Judgment text
524 SUPREME COURT REPORTS (1999] SUPP. 4 S. C. R. . VELAMURI VENKATA SIVAPRASAD (DEAD) BY L. RS. v. KOTHURI VENKATESWARLU (DEAD) BY L. RS. AND ORS. NOVEMBER 24, 1999 [S. B. MAJMUDAR, M. SRINIVASAN AND UMESH C. BANERJEE, JJ. ] I Hindu Succession Act, 1956. Section 14(1)-Limited estate/interest of widow-Re-marriage of widow before coming into force of 1956 Act-Effect of-Held, re-marriage divesting widow as limited owner of estate of her deceased husband-Section 14(1) not applicable-No limited estate/interest subsisting on commencement of 1956 Act which gets converted into full ownership-Hindu Widow's Re-marriage Act, 1856-section 2.
Madras Hindu (Bigamy Prevention and Divorce) Act, 1949-Widow contending that re-marriage was not valid in view of 1949 Act and claiming benefit under 1956 Act-Prohibitory Statute-Interpretation of-Held, statutory prohibition cannot be treated in aid of conferment of right - Prohibitive statute of 1949 not applicable in the facts as it would lead to absurdity-Illegality and immoral conduct of widow established-Effect of- · Held, doctrine of sincerity and moral estoppel applicable-Widow cannot take advantage of her own immoral conduct and illegality-Void marriage- Status of-Held, voidness of marriage not absolute nullity-Hindu Marriage Act, 1955-Sections 11, 16,& 23(l)(a). R executed will bequeathing properties to his mother V and provided only some maintenance for his wife L It further provided that /,n,. case L adopted and's property- this is contrary · to all cannons of law.
In detailing out the reasons as noticed above, reference may be made at this stage itself to a decision of the House of Lords in the case of G. (The Husband) v. M (The Wife) (LR 10 AC 171), wherein, EARi OF SELBORNE LC observed: "I think I can perceive that the real basis of reasoning which underlies that phraseology (sincerity) is this, and nothing more than this, that there may be conduct on the part of the person seeking this remedy which ought to estop that person from having it: as, for instance, any act from which the inference ought to lie drawn that during the antecedent time the party has, with a knowledge of the facts and of the law; approbated the marriage which he or she afterwards seeks to get rid of, or has taken advantages and derived benefits from the matrimonial relation which it would be unfair and inequitable to permit on her, after having received them, to treat as if no such relation had ever existed.
Well now, that explanation can be referred to known principles of equitable, and, I may say, of general jurisprudence. The circumstances which may justify it are various, and in cases of this kind many sorts of conduct might exist, taking pecuniary benefits for I example, living for a long time together in the same house or family with the status and character of husband and wife, after knowledge of everything which it is material to know. I do not at all mean to say that there may not be other circumstances which would produce the same effect; but it appears to me that in order to justify any such doctrine as that which has been insisted upon at the bar, there must be a foundation of substantial justice, depending upon the acts and conduct of the party sought to be barred. " · ' There must thus have to be a foundation of substantial justice depending upon the acts and conduct of the party sought to be barred-as stated by the - Lord Chancellor.
It is in this context the will is to be noticed: In the will Rosaiah being the testator stated that his wife Lakshmamma was not obedient to him and that her father with her aid was also trying to knock off all his properties and that his wife was also not living with him. The learned Subordinate Judge Narasaraopet in paragraph 21 of the judgment in the main suit recorded as below: "21. Smt G. Samanthakamani, P. W. 2, deposed that the frrst defendant bore a child to Sri Veeraraghava Sastri in 1952 and that the name of that child is Kasi Visweswara Hanumath Prasad. She stated further that in the year 1954 she gave birth to a daughter and that some time thereafter, the first defendant gave birth to a son in the same year. She deposed that in the year 1953, her husband Veeraraghava Sastri married the first defendant Seelanagaram in a choultry near the temple. After hearing the contents of Ex. A. I I, P. W.
2 stated that it is not true that Kasi Visweswara Hanumath prasad is her natural son and that it is not V. V. SIVAPRASAD v. KOTHURI VENKATESWARLU [BANERJEE, J. ) 541 ...... true that he was given in adoption to first defendant's husband, the adoption being made by the first defendant. The evidence of Sri A. Sreeramchandra Murthy, P. W. 4, is to the effect that Sri G. Veeraraghava Sastry has two wives that Smt. Laxmidevamma is one of them, that the said Laxmidevamma has a son called Prasad or Prasad Babu and she was delivered of a male child in February or March 1954. " The factual score therefore, depicts that the sister of Lakshmamma in no uncertain terms stated before the 'Court that the first defendant bore a , baby son through Sri Veeraraghava Sastri in 1952 and her (the sister's) husband married Lakshmamma in 1953.
Thereafter Lakshmamma gave birth in 1954 to a daughter and subsequently to another son in the same year-this is the person who is said to have retained the right of maintenance from the deceased husband's estate by reason of the Act of 1949: This is, to say the ~ least, a travesty of correct legal position. There is some moral estoppel also. It is only the estate which was attractive to her and the subsequent purported adoption by Lakshmamma to her late husband when there were already two sons, through the brother-in-law bore ample testimony of her immorality disentitling her any continued maintenance from her deceased husband's estate. ·- On the score of adoption the learned Subordinate Judge on a consideration of the materials available, found "that the adoption of the 8th defendant by the I st defendant to late Veeraragahava Sastri is neither true · nor valid. " Incidentally P. W.
l before the learned Subordinate Judge stated that the 8th defendant is the natural son of the first defendant: the lady has thus three children and in spite thereof attempted to have an adoption established in favour of her own son before a court of law in the name of the deceased husband, simply by reason of the fact that deceased Rosaiah permitted certain properties to be given to the adopted son-the interest is f only property: In our view the tests as laid down by Lord chancellor in G. v. M. (supra) stands amply satisfied in the contextual facts. The doctrine of sincerity, therefore, plays as a bar to such a construction being put on a prohibitory statute. It is pertinent to note here that the courts ought always to adopt a construction of the statute which will em1re to the benefit of the society and ~. eschew such a construction which may adversely affect the society.
Morality and law cannot but be equated with each other: what is legal is moral and as such morality cannot be differentiated from the law. One School of thought recorded that while it is true that what is legal is moral but the converse is not true. We however, do not dilate on this issue excepting reiterating what is stated herein before in this judgment. The general doctrine of approbation and reprobation which is an aspect of equitable estoppel is not peculiar to English law and as a matter of fact Section 23 (1) (a) of the Act of 1956 does gives statutory recognition to the said equitable principle. The language used in Section 23(1) (a) to wit-" ..... . is not in any way taking advantage of his or her own wrong .... " is rather significant. Indeed, Derett in his book "Critique of Modem Hindu Law" at I page 314 holds the view that "It is a rule of justice, equity and good conscience and is international".
In Mulla's Principles of Hindu Law, the learned author has the following to state: "The latter part of clause (a) read with the words at the end of sub-section (I) "then and in such a case, but not otherwise" makes it abundantly clear that the court cannot pass a decree granting any relief under the Act in favour of a petitioner who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief and it is not enough that the petitioner has established the ground on which relief is sought; and if that is so his or her own wrong or disability is an absolute bar to the relief sought by the petitioner. The rule is based on the principle of justice that a wrongdoer should not be permitted to take advantage of his or her own wrong or disability while seeking relief at the hands of the court in any matrimonial proceeding. " (Mulla's Principles of Hindu Law, 16th Edn.
Page 713) Interestingly this Court also applied the latin maxim 'qui approbat man reprobat' (one who approbates cannot reprobate) in Indian conditions as a basic inhibitory principles of law. (see in this context New Bihar Biri leaves Co. and Ors. v. State of Bihar & Ors. , AIR (1981) SC 679 at 692 paragraphs 50 and 51). The present case is not strictly concerned with petitions for r determination of status under the Hindu Marriage Act but rather with 0 questions of Hindu personal inheritance in the context of the conduct of one of the parties. No doubt the 'doctrine of insincerity' must be applied with V. V. SIVAPRASAD v. KGTHURI VEN KA TESWARLU [BANERJEE, J. ] 543 ". great care and even where approbation is proved, the Court has discretion as to what weight is to be given to it. The contention on behalf of the respondent as regards the marriage being void in terms of the provisions of the Act of 1949 on the wake pf the observations as above, thus, cannot hold good in· any event.
Voidness of marriage cannot be termed to be an absolute nullity. A lucid discussion' on the topic is available in Wade's Administrative Law 7th Ed. Wherein it is stated as below: " ... Here also there is a logical difficulty, since unless an order of the " court is obtained, there is no means of establishing the nullity of the list. It enjoys a presumption of validity, and will have to be obeyed unless a court invalidates it. In this sense every unlawful administrative act, however invalid, is merely voidable. But this is no more than the truism that in most situations the only way to resist unlawful action is by recourse to the law. In a well-known passage Lord Radcliffe ~~: "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead.
Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. " Void is therefore meaningless in any absolute sense. Its meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, confusion over 'void or voidable' can be avoided. " The passage above stands approved by this Court in R. Thiruvirkolam v. Presiding Officer and another, [1997] 1 SCC 9. In the case of State of Kera/av. MK. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and others, [1996] I SCC 435 this Court in no uncertain terms laid down that the word 'void' has a relative rather than an absolute meaning. This Court observed: "It only conveys the idea that the order is invalid or illegal. It can be avoided.
There are degrees of invalidity depending upon the gravity of the infinnity, as to whether it is fundamental or otherwise ... " It is in this context one may also consider that Hindu Marriage Act provides annulment of the marriage under Section 11 and the same statute under Section 16 legitmised the children of otherwise void marriages. It is thus a statutory recognition of limited voidness and not a nullity. The reliance was placed on the decision of this Court in the case of Bhaurao Shankar lokhande and Anr. v. The State of Maharashtra and Anr. , AIR (1965) SC 1564, wherein this Court while dealing with the prosecution under Section 494 read with 114 l. P. C. observed that in the event the marriage is not a valid marriage, it is no marriage in the eye of law. The Court was considering as to whether the subsequent marriage needs to be a valid marriage in order to impose punishment under Section 494 I. P. C.
In paragraph 15 of the report this Court observed: "(15) It follows, therefore, that the marriage between appellant No. I and Kamlabai does not come within the expression 'solmenised marriage' occurring in S. 17 of the Act and consequently does not come within the mischief of S. 494, l. P. C. even though the first wife of appellant No. I was living when he married Kamlabai in February, 1962. " The decision in our view does not lend any support to the contention of the respondent herein and the same is clearly distinguishable on facts. The observations of this Court were made in the context of a prosecution, wherein the punishment would be seven years imprisonment together with fine and it is in this perspective that the nitti natti of marriages were dealt with and the Court came to a conclusion that marriage was not properly solmenised and as such the accused ·cannot be said to be guilty of an offence under Section 494.
The liability is criminal and the burden of proof is beyond all reasonable doubts- such however is not the case presently under consideration. It is this perspective that the matter has to be· considered as to whether prohibitive statute ought to be read as conferring statute and in view of the discussion above we answer the first and the second point of reasons as noted above so as not to confer any entitlement in favour of Lakshmamma. On the third count also let it be noted that this prohibitive statute can not possibly have its operation extended in the contextual fact5 as otherwise the sam_e would lead to a total absurdity in the facts of the present case and which in any event ought always to be avoided. V. V. SIVAPRASAD v. KO THU RI VEN KA TES WARLU [BANERJEE, J. ] 545 Finally and in any event this issue however cannot be re-agitated at this juncture by reason of the fact that the same stands concluded by the Trial Court as well as by the first appellate court.
It may also be noted that in the companion Letters Patent Appeal No. 19 of 1977, the Division Bench has confirmed the finding that 1st defendant remarried in 1953 and hence she could not validly adopt defendant No. 2. Accordingly, Letters Patent Appeal No. 19 of 1977 was dismissed. This judgment inter partes has become final. No Special leave Petition is filed by the appellants against the said decision even though they claim their interest through defendant No. I. Hence, the finding that defendant No. I remarried in 1953 has become res judicata between \ the parties. In any case at this point of time no factual controversies can be raised, neither can be decided in the jurisdiction conferred onto this Court by the Constitution. In that view of the matter, we are also not inclined to lend • any concurrence to the submissions on behalf of the respondents.
Turning attention to the issue of vesting of the property and subsequent divestation if there be any, by reason of any unchastity or re-marriage, it would be profitable for us to notice the decision of the Madr~s High Court in the case of Ramaiya v. Mottayya, AIR (1951) Madras 954. In a very iliuminatingjudgment, in paragraph 12 Viswanatha Sastri, J. observed: "It is a well settled rule ofHindu'Law- a rule that is inconformity with popular sentiment that-unchastity disqualifies a widow from succession to her husband's estate. The textual authorities on this point will be found assembled in the judgment inkery Ko/itany v. Monscram Kolita, 13 Beng. L. B. I. the text requires that the widow must be chaste not only when the inheritance of her deceased husband opens but also thereafter. A text attributed to Vridha Manu says: "The wife alone, being sonless and keeping the bed of her lord unsullied and leading a life of religious observance, may take his entire estate.
" Katyayana also declares: "Let the sonless widow, preserving unsulled the bed of her lord and bidding with her venerable protector, enjoy with moderation the (husband's) property until her death" Other texts state as "half the body" of her deceased husband the widow takes his property in default of male issue. The above text show that not only that the sonless widow's right in her husband's p,roperty is a mere right of enjoyment but that the exercise of that right is dependent on her chastity. The use of the present participle form implies that chastity is imposed as a permanent condition of the. widow's enjoyment of her husband's estate and that a violation of that condition would involve a forfeiture of the right.
But European writers, like Colebrooke and English Judges who had to administer the Hindu law, in their concern for ensuring certainty of titles to property and their leanings against a divestiture of estates once vested, declared the law to be that a son less widow who was chaste at the time of her husband's death inherited his estate and that a widow who had once ·inherited the estate of her husband was not liable to forfeit it by f reason of her subsequent unchastity. The law was thus settled by the Judicial Committees in Maniram Kolita v. Keri Kolitany, 5 Cal. 776 P. C. and this has been the accepted rule of Hindu law ever since. Unchastity disentitles a Hindu widow to maintenance. Maintenance being a recurring right her continued chastity is a condition of her right to receive maintenance and she would forfeit her right by reason of her unchastity even though maintenance has been decreed to her · by a Court. Lak. shmichandv. Mt. Anand1; 57 All 672 P. C. Kandasami v.
Murugammal, 19 Mad. 6 and Nagamma v. Virabhadra, 17 Mad. 392. If there has been a lapse from chastity the widow would be entitled only if she reforms her ways, and even then only to a starving maintenance. Satyabhama v. Kesavacharya, 39 Mad. 658. The widows of coparceners in a joint Hindu family are in fact and in law members of the family with rights in or over the family property by way of maintenance. Raghunanda Dea v. Brozokishore Patta Dea, 1 Mad 69 at p. 81; Ka/yani Vitta/das v. Commissioner of income-tax, !. L. B. (1937) 1 Cal 653 (PC) and Vedathunni v. Commissioner of Income-tax, 56 Mad 1 at pp. 4, 5. The requirement of Chastity as a condition of ,' their maintenance from the family property is therefore intelligible.
The observations of the learned Judge in paragraph 13 of the judgment pertaining to the issue as regards the effect of unchastity vis a vis the husband's separate or self acquired property under the Shastric Law and the effect of subsequent legislation thereon are also worth noting. Paragraph 13 reads as below:- "13. The Act was doubtless intended to "give better rights to women in respect of property" as stated in the preamble. But in what cases and to what extent? The rights of a Hindu widow in relation to the V. V. SIVAPRASADv. KOTHURI VENKATESWARLU [BANERJEE,J. ] 547 property or interest of her husband, as they stood before the Act, and as they now stand, have to be considered. A Hindu widow succeeded to the self-acquired property of her husband or the property held by him as the last surviving coparcener or as the holder of a share on partition if he happened to die without leaving sons (including in that term grandsons and great grandsons).
The sonless widow was disqualified from inheriting her husband's separate or self acquired property if she was unchaste or living in adultery at the time the inheritance opened. The Act did not. touch this class of cases and did not abrogate the rule of Hindu law as to disqualification of a widow arising out of her unchastity in such cases. If in the cases above mentioned the husband had left sons (in comprehensive sense) the widow would before the Act have been excluded by the sons from inheriting her husband's estate and would only be entitled to maintenance for her life out of that estate. If her husband had died as a member of a joint Hindu Family owning property, his interest in the family property ceased on his death. The widow would but for the Act; be excluded from succession to the undivided interest of her husband which passed by survivorship to the remaining coparceners.
She would have had a right, however, to be maintained from the joint family property in the hands of the surviving coparceners, who might be her son or her husband's uncles, brothers, nephews or other agnatic relations. With reference to these two classes of cases above specified, S. 3 of the Act conferred new rights of succession on widows in supersession of the above mentioned rules of Hindu law. The rule that a widow succeeded only on failure of male issue was abrogated and she was given the same share as a son in her husband's separate or self acquired property. Where the husband died a member of an undivided Hindu family, his undivided interest in the family property passes to his widow even if he left male issues. The rule of survivorship was to this extent abrogated. The interest taken by a widow in her husband's estate by virtue of S.
3 of the Act was the same as the interest which she look in her husband's separate or self acquired property in the absence of male issue, that is to say a Hindu widow's estate with all the incidents attached by law to that estate. The liability to forfeiture on remarriage would attach to that estate from its ,. commencement and continue throughout the widow's life. The condition of chastity however attaches to the estate only at its commencement. Through the Act conferred new rights of succession on Hindu widows in the two classes of cases referred to above it did not purport to abrogate the pre-existing rule of Hindu law excluding ( an unchaste widow from succession to the property of her husband.
It would be a queer state of law that sonless widow has to be chaste in order to inherit her husband's separate or self acquired property but a widow need not be chaste if she happens to have sons or other coparceners of her husband in competition with whom she claims to take her husband's estate. This however, would be the result of the argument of the appellant as regards the construction of Ss. 2 and 3 of the Act. " Be that as it may the law as declared by Privy Council has been consistently followed that subsequent unchastity will not make a widow forfeit the property which she has succeeded to her husband on his death neither we express any contra view in regard thereto. In the contextual facts of the matter under consideration however, and since the factual situation of re-marriage of Lakshmamma in the year 1953, stands proved, it has to be held that Section 2 of the Hindu Widow's Re-marriage Act, 1956 gets attracted. As a result thereof, Defendant No.
I's right to get maintenance from their deceased husband's property came to an end on civil death qua her ex-husband's estate latest by 1953. Hence there was no subsisting legal right of maintenance available to Defendant No. I qua her deceased husband's estate in any of his properties nor was there a subsisting limited interest of hers in any of those properties which get matured into full ownership under Section 14(1) of the Hindu Succession Act when it came into force. As such the legal situation is different in the present case. and the law as laid down and as noticed above does not render any assistance to the Respondent herein. Similar is the situation in regard to another decision of the Madras High Court in the case of Chinnappavu Naidu v. Meenakshi Ammal and another, AIR (1971) Mad. 453.
The decision last noted dealt with the effect of Section 2 of the Hindu ,Widows Re-marriage Act, 1856 and the Division Bench of the Madras High Court came to a conclusion that by reason of Section 4(1 )(b) of the latter Act, of the Hindu Succession Act, 1956. Section 14 prevails over Section 2 of the 1856 Act and as such re-marriage will not create any divestation. The re-marriage spoken of in the Madras High Court decision however, did take place after introduction of the Succession Act of 1956, as such this decision also does not lend any assistance to the respondent by reason of the factual differentiation in the matter presently before us. Incidentally, be it noted that the Succession Act of 1956 obviously is prospective in operation and in the event of a divestation prior to 1956, · V. V. SIVA PRASAD v. KOTHURI VENKATESWARLU [BANERJEE, J.
] 549 question of applicability of Section 14(1) would not arise since on the date when it applied, there was already a re-marriage disentitling the widow to inherit the property of the deceased husband. The Act of 1856 had its full play on the date of re-marriage itself, as such Succession Act could not confer the widow who has already re-married, any right in terms of Section 14(1) of the Act of 1956. The ~uccession Act has transformed a limited ownership to an absolute ownership but it cannot be made applicable in the event of there being a factum of pre divestation of estate as a limited owner~ If there existed a limited estate or interest for the widow, it could become absolute but if she had no such limited estate or interest in lieu of her right of maintenance from out of deceased husband's estate, there would be no occasion to get such non-existing limited right converted into full ownership right. Strong reliance was also rlaced on the decision of this Court in the case of C.
Masilamani Muda/iar and Ors. v. The Idol of Shri Swaminathaswami Swaminathaswsami Thirulwli and Ors. , AIR [1996] SC 1697. The facts in the last noted decision depict that Somasundaram Pillai died in September, 1950. The Legatees Sellathachi and another had come into possession of the properties. Janaka Thathachi died in the year 1960. In 1970, Sellathachi had appointed a power of attorney-holder who had alienated the suit properties and the appellants had purchased them under registered sale deed. The suit was filed for declaration that the legatees having succeeded to limited estate under the will, the alienations made by Sellathachi were illegal. The Trial Court decreed the suit. The learned Single Judge allowed the appeal and dismissed the suit and in LPA No.
161/88 dated July 2, 1992, the Division Bench of the High Court set aside the decree of the single Judge holding that the legatees had suceeded to restricted estate under sub-section 2 of Section 14 of the Hindu Succession Act. 1956 (for short, the "Act'') and that, therefore, their rights have not blossomed into absolute estate. The question before this Court was whether the widow had become the absolute owner under Section 14( I). This Court held that the right to maintenance stands as a charge on her husband's property and can be termed to be pre-existing legal right which stands transformed into absolute right in terms of Section 14(1) of the Act of 1956. This Court ~eld that the right to maintenance to a Hindu female receives statutory recognition wider the Hindu Adoption and Maintenance Act, 1956 and she is entitled to realise maintenance from the property of her husband and even in the hands of stranger except the bonajide purchaser for value.
_A It may be noted here that even though strong reliance was placed on: this decision but by reason of the contextual facts as noticed above the decision is clearly distinguishable since re-marriage in 1953 as noted above makes all the difference having due regard to the Act of 1856. In Lakhmi Chand v. Mt. Anandi, AIR (I 935) Privy Council 180 similar is the treatment of Hindu Law about the widow's estate by reason of subsequent unchastity. The law as declared by the Privy Council in ! LR 5 Calcutta thus stands well accepted. Two other decisions of this Court were strongly relied upon by the Respondent. The first of the two is the decision in the case of Vimala (K) v. Veeraswamy (K), [1991] 2 SCC 375.
This Court while dealing with an application under Section 125 of the Criminal Procedure Code observed that the object of Section 125 is to prevent vagrancy and destitution and provides a remedy for supply of food, clothing and shelter to the deserted wife and w)len an attempt is made by the husband to negative the claim of a neglected wife depicitng her as a kept-mistress on the subsequent specious plea that he was already married, the Court would insist on strict proof of earlier marriage. This Court observed: "Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125 ' Cr. P. C. for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children.
We are unable to find that. the Respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue. We are, therefore, unable to agree that the appellant is not entitled to maintenance. " Relying upon the observation of this Court the learned Advocate contended that the social obligation to maintain the wife thus, cannot be negated. We, however, while concurring with the broad principles of law, express our inability to agree with the contentions as raised in the present appeal in the present factual situation as discussed above. The observations of this Court were made vis-a-vis Section 125 of Cr. P. C. and cannot possibly lend any assistance in the matter of in! erpretation of Section 14( 1) of 1956 Act or Section 2 of the Act of 1856.
Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a re-marriage: while it is true that Section speaks of a pre-deceased son or son of V. V. SIVAPRASAD v. KOTHURI VENKATESWARLU [BANERJEE, J. ) 551 \ a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a male Hindu to inherit simultaneously with the son, daughter and other heirs specified iri class I of the Schedule. As a matter of fact she takes her share absolutely and not the widow's estate only in terms of Section 14.
Re-marriage of a widow stands legalised by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on the next heir of her deceased husband as if she were dead. Incidentally, the act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed; As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14 (I) of the Hindu Succession Act was relied upon by Defendant No. I. The other ground of objection raised by Mr. Nageshwara Rao i. e. the plea of limitation: Limitation is a mixed question of law and fact and on the issue of limitation B. P. Jeevan Reddy, J.
as the first appellate Court in the instant matter had the following to state: "The last question that remains to be considered, pertair. s to bar of limitation. This issue has been considered by the trial court under issue No. 12 and it found that the suit is not barred, in-so-far as defendants I-7 are concerned, but that it is barred as against the 8th defendant (alleged adopted son of the ! st defendant) and 9th defendant. This is for the reason that the 8th defendant was not originally imp leaded only on 29 . 12. 1971 in pursuance to an o! der of the court in IA No, 2657171. But it must be noticed that the alleged adoption was made on 30. 11. 1965, while the present suit was instituted on I. I 0. 1965. The sale deed in favour of defendants 3,4 and 9, is dated IO. l. 1966 under a notice (Ex.
B-36) and that, once they came to know of the adoption, they ought to have filed a suit for declaration (that the said adoption is not true or valid) within three years of the adoptions or at any rate, within three years of their knowledge of the . adoption; since the 8th defendant has been impleaded only on 29 . 12. 1971, and because of Section 21 of the Limitation Act the suit I. must be deemed to have been instituted as against the 8th defendant only on the date of such impleading, the suit must be held to be barred as against the 8th defendant. The said argument, however, fails to take notice of the provisions contained in sub-section (2) of Section 21, which provides that nothing in sub-section (I) of Section 21 shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit.
Since the adoption has been made pending the suit, and also because the alienation in favour of the 9th defendant is pending the suit, the provisions contained in sub-section (I) of section 21 that the suit shall be deemed to be instituted as against the impleaded party only on the date of such impleadings, is inapplicable. If so, it cannot be said that the suit is barred by Article 113 of the Limitation Act. In fact, the Trial Court has found that no such adoption ever took place, and which finding is not questioned in this appeal. It cannot therefore, be said that the suit is barred by limitation. " We do feel it expedient to record our concurrence therewith and as such come to the conclusion that the suit cannot be termed to be barred by the laws of limitation.
Having considered the matter from all perspectives, we do feel it expedient to record that the Division Bench of the Andhra Pradesh High Court clearly fell into an error in not considering the true effect of Section 2 of the Act of 1856. According to us final decision rendered by the learned Single Judge on non-applicability of Section 14(1) of the Hindu Succession Act remains well sustained, though on a different line of reasoning as indicated hereinabove. Accordingly, it must be held that the Division bench was in error in applying Section 14(1) of the Hindu Succession Act on the fact situation in the present case. · We, therefore, allow this appeal and set aside the order of the Division bench. The order as passed by the learned Single Judge stands restored. No order as to costs. A. K. T. , Appeal allowed.
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