INTRODUCTION
Section 2 of the 1856 Act provides that the rights and interests in certain properties which a widow gets from her husband as limited estate shall cease upon her remarriage and shall devolve as if she had died. Does this property also become her absolute property? And if so, will her remarriage afterwards leads to its forfeiture? It has been held that her estate becomes her full estate by virtue of S. 14 of the 1956 Act. If there is any inconsistency between the two enactments then 1956 Act will have overriding effect as per S. 4 of that Act which leads to the irresistible conclusion that if she remarried after coming into force of the 1956 Act, her estate cannot be forfeited.
TERM “POSSESSION” AS USED IN SECTION 14 OF 1956 ACT
This term has a very wide connotation. It includes actual as well as constructive possession. Even when she is entitled to the possession of the property, such as when the property is in the possession of a trespasser, it has been held that she is in its constructive possession. 5 Similarly, if the property is in the actual possession of mortgagee, lessee or licensee, the female has constructive possession. In the broader sense, the term ‘possession’ is co-extensive with the ownership. Thus, whenever the woman has the ownership of property vested in her, she will be deemed to be in its possession. 6 But if her possession over the property is that of a trespasser, or of a licensee, she cannot be said to be in the possession of the property.
DISTINCTION BETWEEN 14(1) & 14(2)
If the acquisition of the property by a female Hindu can be related to her antecedent right or interest in the property, in a limited sense, it will confer absolute ownership on the widow on and from the day of coming into force of the Act. If, however, acquisition of property cannot have any connection or relation to any of the antecedent right or interest in the property of the female Hindu and the acquisition is conditioned by a restrictive clause, she will not become absolute owner but will be governed by the restrictive clause mentioned in the gift, will, instrument, decree or order of a civil court or an award.