Judgment:
1. An interesting question of law, whether the widow of coparcener who is found unchaste on the date of his demise is disqualified to inherit his estate as a Class 1 heir under the Hindu Succession Act. 1956 (Act No. XXX of 1956). arises in this case.
2. The appellants are defendants 1 to6. The, respondent is the widow of the elder brother of the 1st appellant. Her husband died in the year 1962. Her marriage was celebrated 24 years prior to the institution of the suit. It is her case that after her husband's demise, she continued to live as a member of the joint family with the 1st Appellant., but he started secreting the income of the joint family and purchasing the properties benami necessitating her to lay the suit for a partition. Initially, she impleaded the 1st appeallant as the sole defendant. Subsequently, at the behest of the 1st appellant his sisters defendants 2 to 4, and his deceased sister's husband and son, defendants 5and 6 respectively were inipleaded. She claimed initially half share and subsequently l/4th share. The trial Court granted a preliminary decree in respect of items 1 to 14 of the plaint A Schedule properties and dismissed the suit in respect of item 15 of the plaint A Schedule properties and also the plaint B and C Scheduled properties. No cross-objection have been filed in that regard.
3. With a view to disentitle the respondent to claim a share. the 1st appellant pleaded that even before the marriage with his brother, the respondent was leading immoral life having illicit intimacy with one Rangappa of her parents' village. Gandhipalle, and one year after the marriage, she deserted her husband and continued to live openly with the said person and, therefore. she is not entitled to a share in the coparcenery property. Though the 1st Appellant pleaded that the properties were purchased by D.W. 6. his sister, and he was holding the properties benami for her benefit that pitu was negatived by the Court below and it is not challenged before me. Therefore, I need not go into that question.
4. One of the contentions raised by Sri E. Subrahmanyam, the learned counsel for the appellants is that in items 1 to 6 of the plaint A schedule properties the joint family has only half share and the cousins of the 1st appellant -has the other half share and, therefore. the Court below is not justified in holding that the entire extent of items 1 to 6 is available for partition. He has led me through the written statement of the 1st appellant and the evidence of D.Ws. 6 and9. 1 am unable to agree with his contention. Ex. B-10 dt. Oct. 20, 1928 is admittedly executed by the 1st appellant and Ex. B- 12 is the mortgage decree in 0. S. No. 135 of 1969 on the file of the Court of the District Munsif, Kuppam, in Which the 1st appellant himself hypothecated these properties as joint family properties. In Ex. B-10 he expressly admitted the partition anterior to 1928 and in Ex. B-12 he treated these properties as joint family properties. D.W. 6, his sister expressly admitted in her evidence that her father and her uncle divided their properties. Therefore, the contention that the properties still continued to be joint properties of his agnates is not correct and cannot be given countenance. Moreover, no revenue records or receipts have been placed to show the extent of enjoyment the family had. No doubt, in Ex. B-12, half of the properties, items 1 and 3, was hypothecated, but it does not mean that the other half was not available for joint family. What would appear to be is that the 1st Appellant mortgaged only half the extent, i.e. Acs. IS- 69 cents in Survey Nos. 74/2.ind 114, items 1 and 3 of the plaint A schedule properties, under the mortgage deed. As stated earlier, it would not postulate that the other half was not available to the joint family. Therefore, the entire extent of items 1 to 6 is available for partition.
5. The next question is whether the respondent was living in adultery with one Nagappa on the date of the demise of her husband and continued to be unchaste and whether on account thereof. she became disqualified to inherit the estate of her husband. who died intestate as coparcener with the 1st appellant. The evidence on record clearly establishes and the finding of the court below is that she was unchaste on the date of the demise of her husband. Though Sri Raghunath Reddy, the learned counsel for the respondent, feebly attempts to persuade me to come to a different conclusion. in view of the overwhelming evidence on record. I am inclined to agree with the finding of the court below that the respondent was 'unchaste on the date of the demise of her husband'. But the question whether she became disqualified to inherit her husband estate, still remains to be considered. Admittedly, her husband died intestate and she is a Class 1 heir under the Schedule by operation of Schedule 6 of the Hindu Succession Act (for short 'the Act). Sri Subrahmanyam the learned counsel for the appellants, had placed strong reliance upon Ramaiya v. Mottayya. : AIR1951Mad954 (FB). The contention raised therein was that the Hindu Women's Rights to Property Act, 1937, abrogates the preexisting rule of Hindu Law excluding an unchaste widow from succession to the property of her husband. The Full Bench negatived that contention. Rajamannar C.J. speaking for the Full Bench held thus:
'When the enactment is in the nature of an amending provision that it is to say, provision which amends the general law, on the subject in any particular it should not be- interpreted so as to alter completely' the character of the principal law, unless clear language is found indicating such intention.' Statutes which introduce new principles into any branch of the la,* should he expressed in clear unambiguous terms.'
'It was further held that the Act has not expressly or by implication removed the disqualification on the ground of unchastity which is based on ethical foundations and the sentiment of the people. The language used in S. 2 of the Act is not 'Notwithstanding any rule o Hindu law or custom' but 'Notwithstanding any rule of Hindu Law or custom to the contrary-, (in this basis, it was held that the unchastity is a disqualification for inheritance. Viswatatha sastry, J, held that though the Hindu Women's Right to Property Act conferred new rights on succession upon widows yet the Act should be so costrued as to make no further inroad into the Hindu law that is warranted by its plain terms. It was held that the widow must be chaste not only when the inheritance of her deceased husband opens but also thereafter. It was based on the principle that the sonless widow's right in her husband's property is a mere right of enjoyment but the exercise of that right is dependent on her chastity. It was further held that the Act was intended only to give better rights to woman in respect of property, as stated in the preamble and 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 as a member of an undivided Hindu family, his undivided interest in the family property passed to his widow even if he left male issues. The rule of survivorship was to that extent abrogated. The condition of chastity, however, attaches to the estate only at its commencement. Though the, Act conferred new rights of succession on Hindu widows, it did not purport to abrogate the preexisting rule of Hindu Law excluding an unchaste widow from succession to the property of her husband. On this basis, it was held that the Act did not have the effect of abrogating the preexisting rule of Hindu law.
Section 4 of the Act provides thus:
'Overriding effect of Act : (1) Save as otherwise expressly provided in this Act -
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of ~ law in' force- immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindu in so far as it is inconsistent with any of the provisions contained in this Act.'
(Sub-sec. (2) is not necessary for the purpose of this case, hence omitted.)
A reading of S. 4(1) postulates that any text, rule or interpretation of Hindu Law or any custom or usage as a part of that law which is in force immediately before the commencement of the Act, or any other law in force immediately before the commencement of the Act, which is inconsistent with the provisions of the Act. shall cease to apply to Hindus and shall have no effect with respect to any matter for which provision is made under the Act. S. 6 of the Act provides rule of succession to a male Hindu who dies after the commencement of the Act, which provides that when a male Hindu dies having an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with the Act. But the proviso provides that 'if the deceased had left him surviving a female relative specified in Class 1 of the schedule ............ the interest of the deceased in the Mitakshara coparcenery property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship. The schedule to the Act provides that widow is a Class 1 heir. Under S. 8(a) property devolves upon the respondent. Admittedly the respondent is a widow of the 1st appellant's elder brother. She is a Class 1 heir. Her husband died intestate. Therefore, intestate succession is open as per the proviso to S. 6 of the Act and she exclusively succeeds to the estate. But the question is whether the unchastity is a disqualification for her to succeed to the property of that intestate. Sections 24 - 26 of the Act deal with disqualification. Section 24 disqualifies the widow, a predeceased son. the widow of a brother if, he has remarried. Section 25 disqualifies a pictures who commits murder or abets the commission of murder. Under S. 26 convert's descendants are disqualified from inheritance. As a consequence S. 27 of the Act provides that 'if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.' Section 28 removes certain disabilities, which provides thus :
'Disease, defect etc. not to disqualify:
No person shall be disqualified from succeeding to any property on the ground of any disease. defect or deformity, or save as provided in this Act, on any other ground whatsoever.'
As seen, Ss. 24 to 26, prescribed disqualifications and S. 28 removes disabilities Ss. 24 (o26 negate the right to inheritance by prescribing disqualifications and S. 28 enables a person to succeed to any property by removing disabilities, the contention Of Sri Subrahmanyam, the learned counsel for the appellants, is that the doctrine of ejusdem generis has to be applied and the term .unchastity'is not akin to the terms 'disease, defect or deformity'. Though on the first blush, the argument appears to be attractive, but it is difficult to give countenance to it for the reason that the Legislature did not stop with the engrafting of the words 'disease, defector deformity'. But it proceeded a step further and said. 'on any other ground whosoever.' What is the meaning of the expression 'on any other ground whatsoever' is the question. It is of wide import. Section 4 of the Act provides that any preexisting law, which is inconsistent with the provisions o! the Act, shag cease to have effect. Ss. 4 - 26 prescribe disqualifications; and S. 28 removes disabilities. Under the Shastrik law preceding the Act, unchastity of a widow was a disqualification. But the Legislature did not engraft the unchastity as a disqualification. Under S. 24 remarriage was provided as a .disqualification but not unchastity. On the other hand. S. 28 engrafts a wide language in any other ground whatsover encompassing within its ambit any other ground which was a disqualification under the Shastrik law excepting those disqualifications expressly recognised to note that 7th commentators on Hindu Law have taken the view that uneasy is no longer a disqualification for intestate succession, after the Act came into force
6. There is a conflict of authority on the question whether an unchaste widow who inherits property under the Act is disqualified from inheritance. In the previous editions of this book a view is expressed that as the Act confers upon the widow a right of succession notwithstanding any rule of Hindu Law, an unchaste widow will not be disqualified from inheritance. This view is accepted in Akoba Laxshaman v. Sai Genu, AIR 1941 Born 204. The same view was taken in Suraj Kumar v. Manhadbanat : AIR1953Cal200 . But a Full Bench of the Madras High Court in Ramaiya v. Kottayya (supra) held that S. 2 of the Act did not have the effect of abrogating the rule excluding an unchaste widow from succession to her husbands property though the Act conferred new rights of succession on widows, the Act should not be so construed as to make further inroad into Hindu Law than is warranted by its plain term. In Kanailal Mirra v. Pannasashi Mitra. : AIR1954Cal588 , the Calcutta High Court did not agree with the view expressed by the Calcutta and Bombay High Courts but agreed with the view expressed by the Madras High Court in Ramalya v. Mottayya that the disqualification of unchaste widow was not removed by the Act. It is Submitted that the view expressed by the Madras High Court and that of the Calcutta High Court is to be preferred as it. could not have been the intention of the Legislature that an unchaste widow should be entitled to succeed to her husband. The position would be the same in the Dayabhaga School and also with regard to the rights of succession of the widowed daughter-in-law and widowed grand--daughter-in-law. But the Act does not touch the duration or of the widow's estate as determined by the Hindu Widow's Remarriage Act 1856 and the widow will only be entitled to her estate until her remarriage-. While interpreting S. 28 of the Act it is stated thus:
'But after the commencement of this Act unchastity is not a ground of disqualification for inheriting the property, as widow. All types of disqualifications except those covered by Ss, 24 to 26 in this Act are no longer disqualifications for purpose of succession.' (Page 995)
Thus there is apparent conflict which is mutually inconsistent. I prefer to agree with the matter view at page 995 and of Srinivasa Iyyangar in 10th Edition.
7. In N.R. Raghavachariar's. Hindu Law, Principles and Precedents, 8th Edition 1987, considering the effect of S. 28 of the Act Prof. S. Venkataraman who edited this commentary and who himself is an authority on Hindu Law, has stated thus:
'This section removes the disqualification prescribed by the Hindu law based upon disease, defect or deformity. Unless the disqualification is one gatherable from the. Provisions of this Act it does not operate as a bar to succession. That means that the Act has made its intention specific that unchastity of a widow will, after the Act came into force, no longer be a disquafification in regard to her heritable capacity nor conversion of an heir to any other 'religion is a disqualification under the Act' (Page 999).
8. InN4ulia'sprinciplesofHinduLawiSth Edition revised by S. T. Desai interpreting S. 28 of the Act. it is stated thus:
'The present section discards almost all the grounds which imposed exclusion from inheritance. It rules out disqualification on any ground whatsoever excepting those expressly recognised by any provisions of the Act. Unchastity of a widow is not a, disqualification under the Act., Nor is conversion of an heir to any other religion a disqualification under the Act.' (Page 1039),
9. In Jayalakshmi v. T.V.G. Iyer, : AIR1972Mad357 a Division Bench of the Madras High Court, speaking through Veeraswami C.J. considered the effect of the decision of the Full Bench in Ramaiya v. Mottayya : AIR1951Mad954 (supra) and also the provisions of 5. 28 read with S. 4 of the Act and held thus:
'It seems to us that the position under the Hindu Succession Act is entirely different. The Hindu Succession Act in so far as it covers the matters therein, is meant to he a complete Code relating to Hindu Succession and to that extent the Act prevails and the Hindu law in respect of it will cease to operate. That is the effect of S. 4 which as we said gives the provisions of the Act an effect of overriding the Hindu Law except to the extent save as otherwise, expressly provided in the Act itself. The effect of S. 8 it to limit succession to the class of persons in the order of priority specified. Unles thereo6re, any rule of Hindu Law with reference to the disqualification of any of the heir mentioned in any of the classes is covered by S. 8 each one of them will be, as a matter of right,' entitled to succeed in accordance with the provisions of that section.'
In this case also unchastity of widow was sought to be put forth as a disqualification. 'While negativing this, the court held thus :
'.............. the Act has made its intention specific that unchastity of a widow w9L after the Act came into force, no longer be a disqualifi'tion for her to succeed as the father's widow.'
10. In Chandi Charan v. Bhagyadhar AIR 1976 Cal 356 it was held that unchastity of a widow is not a bar to inherit tier deceased husband's estate. In Khagendra Nath v. Karutiadbar, AIR 1978Cal43t following the decision in Chandi Charan Naskar's case, it was held that unchastity is not a disqualification for her succeeding to the property of husband. Same is the view of the Bombay High Court in A. Lakshman v. Mai Gerun,. AIR 1941 Bom204. In KasturiDevi v. Dy. Director Consolidation, AIR 1976 SC 2295 their Lordships of the Supreme Court have not considered the question whether unchastity of a widow will be a bar for her inheriting the husband's property. The question in that case was whether on remarriage the mother is divested of her interest in the property. Their Lordships, however, held that the widow might be divested of her interest on her remarriage. It does not help the appellants. In fact, the decision in Kasturi Devi's case was cited in Khagendra NatWs case (supra) and the learned Judge observed that their Lordships of the Supreme Court id the former case, were not called upon to consider the question and d was left open. I respectfully agree.
11. In view of the opinions of the text book writers and also the decisions referred to herein before, I have no hesitation to conclude that the Act expressly abrogates the preexisting Shastrik Law to the extent it is inconsistent with the provisions of the Act. The Act expressly provides and absolute right to inheritance to a Hindu Woman by intestate succession. The Rule of survivorship open to a coparcener was intersected when a female heir was available on the death of a coparcener, if he died intestate; and the rule of 'survivorship' has been given way to the rule of succession. 'Sections 24 - 26 provide the disqualifications. Section 28 removes all disabilities while engrafting 'on any other ground whatsoever'.
12. It is settled principle of statutory construction that court is to endeavour to find what is the existing law, the defects which the law did not provide for and the remedy the Legislature intended to provide and cure the defect and the reasons therefor. There is a presumptive evidence that the Legislature is aware of the preexisting Sastrik law as judicially interpreted including the one in Ramaiya's : AIR1951Mad954 (FB) ratio in regard to unchastity as a disqualification for succession to or maintenance of Hindu, women Articles 14 and 15 of the Constitution provide equality to every citizen regardless of sex and prohibits invidious discrimination, enables the Legislature to make inroads into the preexisting law. The Legislature felt the need most acute to remove many a disability under which the Hindu women are reeling from in matters of inheritance, succession rights. It animated to remove all the disabilities except those prescribed under the Act, used the appropriate language in S. 4 and chose not to make unchastity a disqualification. On the other hand, S. 28, while enumerating removal of name disabilities, used in a wide language 'on any ground whatsoever' which engulfs in its ambit 'unchastity too'. Youthful urge and satiety of biological need nifty lead to astray and its abhorrence to keep to family prestige or social cohesion may be' understandable. But moral or righteous indignation to unchastity or ethical foundations or sentiments of the people would not should not stand in the way to the statutory construction of the wide language on any ground whatsoever and effect given. The restrictive interpretation sought to be put by the learned counsel for the appellant not only not permissible but if applied would also defeat the avowed object of the Act.
Therefore, the doctrine of ejusdem generis cannot be applied and it must be construed broadly. If so constituted, I have no hesitation that the legislature intended to wipe out the preexisting disqualification of unchastity as a bar to succeed to the deceased coparcener. The interpretation given by the Full Bench in Ramaiya's case, : AIR1951Mad954 (FB) does not hold the field after the Act came into force. Therefore, it no longer continues to be a good law.
13. In this light, I hold that the respondent is entitled to succeed under S. 8(a) as a Class 1 heir to the property of her deceased husband and accordingly the preliminary decree granted by the court below is perfectly legal and it does not warrant interference. The appeal is, therefore dismissed but in the Circumstances, each party is directed to bear heir own costs.
14. Appeal dismissed.