Right of widow in DECEASED
husband's property after HER remarriage
The law related to inheritance
amongst Hindus are quite comprehensive and the issues keeps trickling in as
regards this. Though, Hindu Succession Act 1956 or Indian Succession Act 1925
illustrates the aspect of succession in respect of estate left over by a male
Hindu or a female Hindu. However, Hindu Succession Act 1956 and Amendment Act
2005 shall apply for inheritance, if no testamentary disposition, such as Will,
was left by the deceased. On the other hand if deceased has not died intestate and left a Will or testament,
the provisions of Indian Succession Act 1925 for seeking Probate or Letter of
Administration of Will, as the case may be, shall apply. The broad contour of
this article, however, revolves around right of a widow in the estate of her
deceased husband, in case, she marry after the demise of her husband. Whether
any embargo is caused in respect of inheriting assets of her deceased husband
who died intestate, in case, a woman
marries again shall be the crux of the matter.
The issues have found reflection
in a recent judgment of Nagpur Bench of Bombay High Court in Second Appeal
No.144 of 2007 captioned as Smt jaiwantbai Vs Sunanda & Ors (decided
on 23rd August 2021).
While admitting the appeal, the
hon’ble Bombay high Court had framed the following issue?
a) “whether a widow can claim
the estate of the husband after re-marriage”?
The Bombay High Court,
earlier, had dealt with somewhat similar issue based on a judgment rendered by
Supreme Court captioned as Kasturi Devi Vs. Deputy Director of
Consolidation & Others AIR 1976 SC 2595. However, the said judgment was
remitted in case of right of inheritance of Mother from the estate of deceased
Son. It has been held that there
will not be any effect on her share of inheritance from a son even after she
re-married. However, in Smt jaiwantbai (Supra) the issue is
what is the effect on widow’s right of inheritance on the property of the
deceased husband.
FACTS OF THE CASE
The facts of Smt Jaiwantbai (Supra) shall be of
relevance before proceeding further:
Smt Jaiwantbaii is the
mother of the deceased-Anil Shenuji Wankhade,
who was working as a Pointsman
with Indian Railways. The respondent no.1 “Sunanda” was married to Anil S Wankhaede (In short
referred to as (“ASW”). There was also dispute between Sunanda and ASW and she
was living separately. After the death of husband-ASW, Sunanda, re-married in
the month of May, 1991 with one Ganesh Saligram Dode (GSD). The appellant
herein (Mother of deceased ASW) claimed dues from the Indian Railways in the year
1993. The fact of re-marriage of Sunanda was communicated to the employer-
Indian Railways. The employer requisitioned certificate of marriage, however,
it could not be submitted. In this backdrop, the employer disbursed dues of
Rs.65,000/- to Sunanda. In view of this Smt Jaiwantbai had filed a suit before
the Civil Judge (Junior Division), thereby it was prayed that status of Sunanda
be declared and injunction order be passed against the employer of her Son and
claimed dues from Indian Railways.
The suit filed by the Mother
(Appellant herein) was decreed and Indian Railways were directed to pay all the
dues to Jaiwantaba. As Indian railways had already released the dues to
“Sunanda” (Wife of deceased), thus, the first appeal before the District Court,
Akola. The first Appellate Court had modified the judgment. Passed by the Court
of first instance. The Indian Railways was directed to disburse the amount to
Mother Jaiwantabai and wife Sunanda. The Mother had preferred the second appeal
before the High Court against the judgment of First Appellate Court. Whereas
the trial Court had accepted the claim of the plaintiff in toto, but, the first Appellate Court has also recognized the
share of wife “Sunanda”. The plaintiff (Mother) was aggrieved by the first
Appellate Court’s judgment.
The appellant contended that
after the re-marriage, “Sunanda” had lost all her rights in the property of
deceased husband and that conduct of employer of husband in releasing fund to
“Sunanda” was unwarranted as no succession certificate was insisted and funds
was released based on nomination. The appellant therefore prayed that the
amount be recovered from the wife by the employer and be paid back to appellant
Mother.
Per contra, on behalf of wife it was contended that The Hindu Widow’s
Re-Marriage Act, 1856 (In short “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.
Reliance was placed on a judgment in the case of Sanjay Purushottam Patankar Vs. Prajakta Pramnod Patil 2015 (6)
Mh.L.J. 533 DB. The Indian railways on the other hand maintained that the
amount has already been disbursed to the wife on the basis of valid nomination
and if the mother claims its recovery, the same may be against the wife only,
if she succeeds.
Before the High Court.
Following facts stands proved: following facts were proved—
a) Marriage between Sunanda
and deceased-ASW;
b) Deceased-ASW was working
with Indian Railways as a Pointsman;
c) Death of ASW on 19th
April, 1991;
d) remarriage by the wife
after the death of husband;
d) Relationship of
Jaiwantabai, as a mother with deceased ASW;
e) Disbursal of the amount by Indian Railways to
wife of ASW;
f) Re-marriage of wife-Sunanda in the month of
May, 1991;
The Bombay High Court has
observed in Jaiwantbai (Supra) para
no. 12 as under:
“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?
The para 13, 14 and 15 of
the aforesaid judgment is of vital importance:
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 1 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”.
The substantial question as
framed above was thus answered in the affirmative by the high court on the
basis of the facts involved in this appeal. It was further held that both wife
and the Mother shall be entitled to 50 percent share each on the amount paid by
the employer on account of deceased.
In this context, a judgment
of Supreme Court in a matter bearing Appeal (Civil) 1323 of 2008(Arising out of SLP (C) No. 236 of 2004) captioned as Cherotte Sugathan (Died
through LR & Ors Vs Cherotte Bharathi & Ors shall be of relevance. It
is held as under:
14. The question posed before us is no longer res
integra. In Chando Mehtain & Ors. v. Khublal Mahto & Ors. [AIR 1983 Patna
33], the Patna High Court opined :
“ The Hindu Widows
Remarriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956
but Section 4 of the latter Act has an overriding effect and in effect
abrogates the operation of the Hindu Widows Remarriage Act, 1856. According to
Section 4 of the Hindu Succession Act all existing laws whether in the shape of
enactments or otherwise shall cease to apply to Hindus in so far as they are
inconsistent with any of the provisions contained in this Act. In Kasturi Devi v. Deputy Director of Consolidation
[AIR 1976 SC 2595], this Court categorically held that a mother cannot be
divested of her interest in the deceased son’s property either on the ground of
unchastity or remarriage. Kerala High Court, in Thankam v. Rajan [AIR 1999 Kerala 62], held that remarriage of the
wife cannot be a ground for her loosing right to succeed to her deceased
husbands property”.
“15. Yet again this Court, in Velamuri Venkata Sivaprasad (Dead) by LRs.
v. Kothuri Venkateswarlu (Dead) by LRs & Ors. [(2000) 2 SCC 139], held
:
“Incidentally,
Section 24 of the Succession Act of 1956 placed certain restrictions on certain
specified widows in the event of there being a remarriage; while it is true
that the section speaks of a pre-deceased son or son of 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 Hindu male to inherit
simultaneously with the son, daughter and other heirs specified in Class I of
the Schedule. As a matter of fact she takes her share absolutely and not the
widows estate only in terms of Section 14. Remarriage of a widow stands
legalised by reason of the incorporation of the Act of 1956 but on her
remarriage 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 to 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(1) of the
Hindu Succession Act was relied upon by Defendant. We respectfully agree with
the said view”.
The
aforesaid judgments and its recitations leaves no room of doubt that succession
opens only on the day of death of a person and status of the parties as regards
his/her being living for inheritance on that day or status as regards re-marriage
as on that day itself shall be of relevance. The catena of judgments having
been referred to above and interpretation thereof in very unambiguous terms,
elucidates that the remarriage by a woman after the death of her husband shall
not disentitle the widow from inheriting the estate of deceased and the terms
of Hindu Succession Act 1956 as amended and up to date shall apply completely.
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Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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