IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
APPEAL NO.8 OF 2007
IN
NOTICE OF MOTION NO.80 OF 2006
IN
PETITION NO.676 OF 2006
Mr Sanjay Purshottam Patankar … Appellant
v/s
Smt Prajakta Pramnod Patil … Respondent
Mr A.K. Sarena for Appellant.
Mr Satya M. Shettigar for Respondent.
CORAM: V.M. KANADE & B.P. COLABAWALLA JJ.
RESERVED ON : 18TH JUNE 2015 PRONOUNCED ON : 25TH JUNE, 2015 Judgement: [ Per B.P. Colabawalla J. ] :-
1. By this Appeal, exception is taken to the order dated 8 th September, 2006 passed by the learned Single Judge wherein no reliefs were granted to the Appellant in the above Notice of Motion. The Appellant is the brother of the deceased whilst the Respondent is VRD 1 of 7 the wife of the deceased. By the above Notice of Motion, the Appellant was seeking a stay of the operation, execution and effect of the order dated 22nd June 2006 passed in Testamentary Petition No.546 of 2002.
2. Testamentary Petition No.546 of 2002 was filed by the wife of the deceased in which a Succession Certificate was granted in her favour by the order dated 22nd June 2006.
3. Before dealing with the arguments, it would be important to note a few relevant facts. The deceased, Prakash Purushottam Patankar expired on 18th May, 1998. The Respondent is the widow of the deceased. She got remarried on 14 th December, 1998. The mother of the deceased also passed away on 29 th March, 2001.
Thereafter, in the year 2002, the Respondent herein (the widow of the deceased) filed Testamentary Petition No.546 of 2002 seeking a Succession Certificate in relation to the estate of the deceased.
Testamentary Petition No.546 of 2002 came to be allowed and the Succession Certificate was granted in favour of the Respondent (the widow of the deceased). Meanwhile, the Appellant (the brother of the deceased) also filed Testamentary Petition No.676 of 2002 seeking a Succession Certificate in relation to the estate of the deceased. In this Testamentary Petition, the Appellant filed the above Notice of Motion in which the impugned order has been passed.
4. In this background, the only argument canvassed by the learned counsel appearing on behalf of the Appellant, was that the Succession Certificate granted in favour of the Respondent (widow of the deceased) was invalid because she had remarried. The submission was that under Hindu Law, after remarriage, the widow looses all rights to the property of the deceased husband. This submission was canvassed on the basis of the provisions of the Hindu Widows’ Re- Marriage Act, 1856 and more particularly, section 2 thereof which reads as under :-
“2. Rights of widow in deceased husband’s property to cease on her remarriage – 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 lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other person entitled to the property on her death, shall thereupon succeed to the same.”
5. On the strength of the aforesaid provision, the learned counsel appearing on behalf of the Appellant submitted that the deceased having expired on 18th May, 1998 and his widow being remarried on 14th December 1998, no Succession Certificate could have been granted in her favour. He therefore submitted that the learned Single Judge was clearly in error in not granting the reliefs as claimed in the above Notice of Motion, and the impugned order accordingly required interference in Appeal.
5. We are unable to agree with the aforesaid submission. It is true that section 2 of the Hindu Widows’ Re-Marriage Act 1856 inter alia stipulates that all rights and interests which any widow may have in her deceased husband’s property by way of maintenance, or by inheritance or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died. This was obviously in a case where no express permission to re-marry was given. However, we find that the Hindu Widows’ Re-marriage Act, 1856 was repealed by Parliament by enacting the Hindu Widows’ Re-Marriage (Repeal) Act, 1983. We therefore find that the reliance placed by the learned counsel for the Appellant on section 2 of the Hindu Widows’ Re-Marriage Act, 1856 is wholly misplaced.
6. On the other hand, section 8 of the Hindu Succession Act, 1956 provides the general rules of succession in case of males and reads as under :-
“8. General rules of succession in the case of males – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter –
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs,
being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceases; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”
7. Section 8 clearly provides that the property of the male Hindu dying intestate shall devolve upon the heirs being relatives specified in Class I of the Schedule. Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule and so on. It is not in dispute that the Respondent is an heir as specified in Class I, whereas the Appellant is an heir as specified in Class II. Section 9 provides the order of succession among heirs and stipulates that among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs. Section 14 of the Hindu Succession Act, 1956 inter alia stipulates that the property of a female Hindu is to be her absolute property. Section 14 reads as under :-
“14. Property of a female Hindu to be her absolute property –
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation – In this sub-section, ‘property’ includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”
8. Section 14(1) categorically states that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The explanation to section 14(1) clarifies that property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever etc. We do not find any provision in Hindu Succession Act, 1956 in pari materia with section 2 of the Hindu Widows’ Re-Marriage Act, 1856. In other words, there is no provision that disqualifies a widow of a male Hindu from inheriting from her husband if she remarries, after his death.
9. In this view of the matter, we do not find any infirmity in the order passed by the learned Single Judge. The Appeal is therefore dismissed. In the facts and circumstances of the case, we leave the parties to bear their own costs.
(B.P. COLABAWALLA, J.) (V.M. KANADE J.)