Raghunath Shankar Dikshit Vs. Lakshmibai Hari Ware - Court Judgment

Sen, J.

1. This is an appeal from the appellate decree passed by the District Judge, Nasik, confirming the order of the Subordinate Judge at Nasik in Regular Darkhast No. 247 of 1930 of the last Court.

2. In the suit Dwarkabai kom Govinda claimed that her husband had been adopted by the widow of Ramkrishna Gopal Bhat Ware, to whom two-thirds of the property in suit had belonged. The defendants compromised the claim by recognising her husband's title as the adopted son of Ramkrishna and allowed her a half share in the suit property and rents from 1923 to 1927 and in the rents for future years until equitable partition of the property. Thereupon a compromise decree was passed in those terms on September 10, 1927. She made no attempt to execute the decree and in the same year became a convert to Muhammadanism, and she married a Muhammadan in 1928. Thereafter the present darkhast was filed by Lakshmlibai widow of Hari Gopat Ware, who is Dwarkabai's first husband's uncle's widow and who claims to be Govinda's reversioner. She claims that on Dwarkabai's remarriage after conversion she is entitled to inherit Govinda's property under the provisions-of Section 2 of Act XV of 1856.

3. A small portion of the property in suit having been acquired by the Municipality of Nasik after the decree, the said Municipality was joined as a co-opponent, and it opposed the darkhast. The darkhast was not contested by-defendant No. 2, who is a brother of defendant No. 1, and it was proceeded with ex parte against him. The appellants (original defendants Nos. 1 and 2) are grandsons of one Rangu, who was a brother of Godu, mother of Govinda's adoptive father Ramkrishna, Lakshmibai being the widow of Hari, Ramkrishna's brother. The following three contentions of the appellants raised in the lower Courts were not pressed in this appeal :-(1) that Govinda was not proved to be Ramkrishna's adopted son, (2) that even if he was, the next reversioner of Govinda would be Radhabai, his father's sister and not his uncle's widow Lakshmibai, and (3) that Radhabai having obtained an. heirship certificate and having assigned all her rights to the appellants, Lakshmibai is not entitled to execute the decree against the appellants. As regards the first of these contentions the learned District Judge has rightly held that the appellants who accepted the position in the suit that Govinda was Ramkrishna's adopted son cannot now go behind that position ; and the second position is concluded by the decision in Pranjivan Hargovan v. Bai Bhikhi I.L.R(1921) 45 Bom. 1247,23 Bom. L.R. 553, as held by the learned District Judge. Prima facie, therefore, if Dwarkabai ceased to represent her husband's estate on her conversion and remarriage, Lakshmibai would be entitled to execute her decree under Order XXI, Rule 16, as the decree would be transferred ' by operation of law ' to Lakshmibai.

4. The first question, therefore, that arises for our consideration, and this is the main question arising in this appeal, is whether Dwarkabai's conversion and remarriage has entailed the forfeiture of all her rights and interests in her husband's estate. As to her conversion, it could not have any such result, as the Caste Disabilities Removal Act, XXI of 1850, provides that so much of any law or usage then in force as inflicts on any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing any religion shall cease to be enforced. The learned Subordinate Judge thus rightly held that Dwarkabai, on her conversion, retained unimpaired her rights in Her husband's property.

5. As to the effect: of a Hindu widow's remarriage, Section 2 of Act XV of 1856' provides :-

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 Imeral 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.

6. The difficulty in this case arises in interpreting the words ' any widow' with reference to the facts of this case. The appellants contend that these words must be held to mean 'any Hindu widow', that after Dwarkabai remarried she did not remain a Hindu widow and that therefore Act XV of 1856 cannot apply in this case. They rely on Abdul Aziz Khan v. Nirma ( I.L.R 1913) All. 466, wherein it was held that a Hindu widow who had ceased to be a Hindu before her remarriage, e.g., by conversion to Muhammadanism, did not forfeit her rights in her husband's property.

7. There is no Bombay case in which the specific question under consideration was involved, namely, whether Act XV of 1856 applies to a Hindu widow who has renounced her faith and subsequently married a non-Hindu. The High Courts of Calcutta, Madras and Patna have held that the Act applies to such a widow : Matungini Gupta v. Ram Rutton Roy I.L.R (1891) Cal. 289, Vitta Tayaramma v. Chatakondu Sivayya I.L.R.(1918) Mad. 1078, and Mussammat Suraj Jote Kuer v. Mussammat Attar Kumari I.L.R.(1922) Pat. 706. The Allahabad High Court appears to be alone in holding the contrary view. The case of Bhola Umar v. Kausilla I.L.R.(1932) All. 24, which was referred to by the learned advocate for the appellants, dealt with the case of a Hindu widow who had remarried in accordance with a custom of her caste, and therefore is not applicable to the facts of this case. The ratio decidendi of the Calcutta, Madras and Patna cases is that 'any widow' in Act XV of 1856 refers to the widow of any Hindu, and not merely to a widow who is and remains a Hindu. It has been argued that the expression must be more strictly construed, that as the Act was intended to remove the legal obstacles that might exist to the marriage of Hindu widows, it cannot have been intended to apply to a widow to whose remarriage, owing to her prior conversion, no such obstacles existed, and that the intention of this Act cannot be to impose any liability or disability upon widows who are entitled to remarry apart from its provisions. The learned advocate for the appellants has also relied on the arguments used by Krishnan J. in his dissenting judgment in Vitta Tayaramma v. Chatakondu Sivayya, namely, that the word 'remarriage' in Section 2 of the Act referred only to a remarriage under the Act and not to any remarriage whatever, and that remarriage after conversion cannot be said to be one permitted by the said Act.

8. We find ourselves unable to agree with the above arguments. It seems to us that when Act XV of 1856 was passed the possibility of cases like the present arising for the consideration of the Courts was not perhaps foreseen, but that the provision of Section 2 was intended to meet the objection that a Hindu widow could not be permitted to retain any right in her husband's estate on her voluntarily leaving her husband's family. The only aspects of her position that appear to have been taken into consideration in the enactment of Section 2 are the limited interest a widow holds in her husband's estate and the contingency of her renouncing the position which entitled her to hold such interest. The question of a change of religion, in our opinion, has no direct relevancy to these two questions, and we, therefore, believe that it would be wrong to interpret the expression 'any widow' as the widow of a Hindu merely so long as she remained a Hindu. There is no doubt that the words were not intended to apply to a Christian or Muslim widow who had never been a Hindu at any , time. Nor, in our opinion, could it have been intended that Hindu widows should be allowed to escape the disability imposed upon them by Section 2 by renouncing their religion prior to their remarriage. The argument against their retaining any interest in their husband's estate after remarriage would remain with equal force, if it did not, indeed, become stronger, in the case of conversion prior to remarriage. In our opinion the view that the word 'remarriage' in Section 2 refers only to remarriage under the Act is too narrow a view and mistaken, firstly, because the words 'under the Act' do not occur in the section, and, secondly, as the Act is intended merely to remove obstacles to the remarriage of Hindu widows and not to prescribe the kind of remarriage the widow of a Hindu may contract. Section 1 of the Act no doubt speaks of two Hindus marrying ; it deals with the validity of the marriage and the legitimacy of the issue of such marriage. Section 2, however, deals with a different matter, namely, the question of the widow's retaining interest in her husband's property on remarriage ; and, in our opinion, it is not necessary to assume that the remarriage referred to in that section means no more and no less than the kind of remarriage which Section 1 legalises and validates. We concur in the view taken by the majority of Judges in the full bench cases of Matungmi Gupta v. Ram Rutton Roy and Vitta Tayaramma v. Chatakondu Sivayya that the expression 'any widow' includes all widows who being Hindus became widows and is wide enough to cover the case of such a widow remarrying a Hindu or a member of another religion. In the Madras case Wallis C. J. went so far as to hold that the Legislature was well aware, when enacting Section 2, of the existence of remarriages by widows of Hindus with members of another religion just as much as with Hindus ; and that they must have considered that the case for enforcing the forfeiture on remarriage was even stronger in the former case than in the latter.

9. We, therefore, hold that on Dwarkabai's remarriage she forfeited whatever interest she had in her husband's property.

10. The next argument of Mr. K, V. Joshi, who appears for the appellants, is that Lakshmibai is not entitled to execute the decree, and he relies on the decisions in Abidunnisa Khatoon v. Amirunnissa Khatoan I.L.R.(1876) Cal. 327., Mathurapore Zamindary Co., Ltd. v. Bhasaram Mandal I.L.R. 2 (1924) Cal. 703, and Mahadeo Baburao v. Anandrao Shankarrao I.L.R.(1933) 57 Bom 513, 35 Bom. L.R. 795. In Abidunnisa Khatoon's case their Lordships of the Privy Council held that Section 208 of the Civil Procedure of 1859, which was to the same effect as Order XXI, Rule 16, had no application where there was a serious contest with respect to the rights of persons to an equitable interest in a decree, and where an important question such as the legitimacy or illegitimacy of an alleged heir was to be decided. Their Lordships observed (p. 334) :-

No incident had occurred on which the law could operate to transfer any estate from his mother to him. There had been no death; there had been no devolution ; there had been no succession. His mother retained what right she had; that right was not transferred to him ; if he had a right, it was derived from his father ; it appears to their Lordships, therefore, that he is not a transferee of a decree within the terms of this section.

11. Such, however, are not the facts in this case. The facts in Mathurapore Zamindary Co., Ltd., v. Basaram Mandril are again wholly dissimilar to the facts in this case. In that case there was an assignment of property in writing and the decree in question was subsequently obtained by the assignor in respect of the property assigned. It was held that in such a case the assignee could not execute the decree under Order XXI, Rule 16. In Mahadeo Baburao v. Anandrao Shankarrao I.L.R (1933) 57 Bom. 513, 35 Bom. L.R. 795, in which the judgment was delivered by a single Judge, the respondent, who applied for the execution of the decree in question, had obtained a decree declaring him to have been validly adopted by one Shankarrao's widow, but before that the widow Rangubai had obtained a decree against two persons on a money claim and had already received the first instalment due thereunder and the respondent merely produced the said decree alleging, but without showing, how he had become the proprietor of the decree. In the present case, however, as I have stated above, if Dwarkabai ceased to represent her husband's estate on her remarriage, there can be no question that Lakshmibai became the transferee of the decree 'by the operation of law' as Radhabai, through whom the appellants claim, is Govinda's father's sister, and upon the authority of Pranjivan Hargovan v. Bai Bhikhi I.L.R(1921) 45 Bom. 1247, 23 Bom. L.R. 553, the widow of a paternal uncle will be entitled to succeed in preference to the father's sister. Such a question can, in our opinion, be decided in execution proceedings under Section 47, Civil Procedure Code, which expressly bars a separate suit.

12. It has next been contended that Sub-section (3) of Section 47 must be read as ancillary to Sub-section (1) thereof, as decided in Venubai v. Damodar Sondur I.L.R.(1933) 57 Bom. 641, 35 Bom. L.R. 609, and that it does not apply to a case in which the question is between the rival representatives of the same party, the argument apparently being that both Lakshmibai and the appellants claim to represent the deceased Govinda. But the parties to the suit were Lakshmibai and the appellants themselves and it cannot be said, therefore, that they are claimed to be the rival representatives of the same party. We do not thus think that there is any substance in this contention.

13. Lastly, it has been contended that in any case the mesne profits awarded by the decree must be held to be Dwarkabai's personal and exclusive property, that as Lakshmibai cannot, therefore, execute this portion of the decree, she can at best be the transferee of a part of the decree, and that a partial assignee cannot apply for the execution of the whole decree. Reliance is placed on Rivett-Carnac v. Jivibai I.L.R.(1886) 10 Bom. 478, Narayandas v. Tejmal (1932) 35 Bom. L.R. 1162 and Sita Ram v. Dulam Kunware I.L.R. (1918) 41 All. 350. This contention has been raised for the first time in this Court and it is not raised even in the memorandum of appeal. In Rivett-Carnac v. Jivibai the facts were as under : One Murar Naran had died, leaving his widow F and a grandson G and a daughter-in-law. On Murar's death F entered into the possession and management of his property. Under certain agreements made between her and K, the latter received the rents of certain portions of the said property and in consideration thereof paid F certain fixed annual sums. When F died there was a balance due from K to F in respect of this arrangement, and the plaintiff, having obtained letters of administration to F's estate, demanded payment of the said balance. K had in the meanwhile paid this sum to G, who had, on F's death, succeeded to all the immoveable property as Murar's reversionary heir. It was held that the plaintiff was entitled, to recover the said balance as part of F's estate, and that there was nothing to show it to be 'savings or accumulations' so as to give it to the heir to her husband's estate. In Sita Ram v. Dulam Kunwar two sisters had been in possession of their father's property and one of them made certain payments out of the income of that property in order to save from sale for arrears of Government revenue other property, which belonged to the sons of the other sister and to certain cousins of theirs. Subsequently she obtained a decree against the person on whose behalf she had made the payments abovementioned but died before executing it. It was held that the person entitled to execute the decree was not the surviving sister but the legal representative of the decree-holders. In Narayandas v. Tejmal it was held that an assignee of a portion of a decree is not entitled to execute the decree as a whole or as a part. This case was decided by a single Judge and followed the decision in Forster v. Baker [1910] 2 K. B. 636, Rothschild v. Fisher [1920] 2 K. B. 243, Ram Chandra Naik Kalia v. Abdul Hakim I.L.R. (1913) All. 204, and Ahmed Shah v. Foujdar Khan (1919) 2 I. L. J. 1.

14. In Rivett-Carnac v. Jivibai it was held that the existence of debts rebutted any intention to accumulate, of which there was an entire absence of any outward sign. This feature in this case must distinguish it from the present one, where the inactivity of Dwarkabai in not executing her decree would rather suggest that she was not anxious to collect the past mesne profits in order to spend them on her needs. This case purports to follow the principle laid down by the Privy Council in the case of Isri Dutt Koer v. Hansbutti Koerain I.L.R. (1883) Cal. 324. in which it was held that if the widow has made no attempt to dispose of the savings from her husband's estate, there is no dispute but that they follow the estate from which they arose. In Hunsbutti Kerain v. Ishri Dutt Koer I.L.R. (1879) Cal. 512 Mr. Justice Ainslie held that (p. 525) 'The fact that unappropriated profits or properties purchased, and not disposed of in the widow's lifetime, do not pass as stridhan, may be explained on the theory that when a widow has at: her death left money accumulated or property purchased out of surplus profits, and not appropriated to any person during her life, it was her intention to add such monies or properties to the estate, and to abstain from exercising her full rights over them.' In Sitaram v. Dulam Kunwar their Lordships held that the judgment-debt was not a ' saving ' as the sister in question had applied the income of the estate in her hands to meet a certain emergency, and by reason of the use she had made of it there was a debt due to her at the time of her death. This fact, again, distinguishes that case from the present one, where there was no debt due to Dwarkabai which would have to be paid out of the mesne profits awarded by the decree. Following the decision in Isri Dutt Koer v. Hansbutti Koerain it has been held in Calcutta and Oudh that if the widow dies without having, in her lifetime, disposed of the arrears of income or the amounts due under decrees held by her, or the income held in suspense, she could not dispose of them by her will and that they pass on her death to her husband's heirs : (Sarat Chandra Mitra v. Charusila Dasi I.L.R. (1928) 55 Cal. 918 and Sarnam v. Raja Bisheshwar Bakhsh Singh I.L.R. 1929 Luck. 608. It may be said that in the present case it can hardly be said that it was Dwarkabai's intention to add the past mesne profits to her husband's estate, as she could have no motive for so doing. But it seems to us that as she showed no inclination to realise the past mesne profits awarded to her it would not be a wrong inference to say that she intended to leave those mesne profits with her husband's estate.

15. Therefore, in our opinion, those mesne profits cannot be regarded as Dwarkabai's absolute property, but as accretions to her husband's estate, and Lakshmibai would be entitled to execute the decree with respect to them as to the other property affected thereby. No question, therefore, of the execution of a part of a decree or partial execution of a decree arises in this case.

16. We must, therefore, hold that all the contentions of the learned advocate for the appellants fail, and that both the lower Courts have rightly held that Lakshmibai is entitled to execute the decree. The appeal is, accordingly, dismissed, with costs in separate sets.