MAHILA GUMANO Vs. RAM DAYAL

JUDGEMENT

(1.) THIS appeal by the Defendant arises out of the Plaintiff -Respondent's suit for a declaration of title and -possession of a certain house originally belonging to one Nathu, who died leaving a widow Mahila Gumano. The Plaintiff's case is that he and his uncle Nathu were the joint owners, of an ancestral house and each of them had half share in the house, that on the death of Nathu, his wife Mahila Gumano contracted a second marriage with one property as the nearest collateral of Nathu. Mahila Gumano in her defence claimed that she was the exclusive owner of the house having inherited it from her ancestors, and denied the remarriage alleged by the Plaintiff. The learned Munsif of Bhind found the remarriage not proved. He also held that the Plaintiff had not proved that the house in dispute was the joint property of Nathu and himself. He, therefore, dismissed the Plaintiff's suit.

(2.) ON behalf of the Respondent, it was contended by Mr. Anand Bihari Mishra that the finding of the learned District Judge that Mahila Gumano remarried Kunji was correct; that Section 3, Hindu Widow's Remarriage Act applies not only to widows who could not remarry before the passing of the Act but also to those who were not so precluded from remarrying by the custom of their caste. Counsel for the Respondent relied on 'Gajapathi Naidu v. Jeevammal' : AIR 1929 Mad 765 (C); ''Mahomed Umar v. Mt. Man Koer', AIR 1918 Cal 609 (D); 'Vithu v. Govinda' 22 Bom 321 (FB) (E) and 'Suraj Pal v. Uttim Pandey' : AIR 1922 Pat 378 (F). It was further said that the Defendant was not entitled to say in this Court that the remarriage, if any, was under the custom of her caste as she had not pleaded or proved any such custom.

(3.) IT is noteworthy that the Plaintiff -Respondent's claim to the property in suit is based mainly on the provisions of the Hindu Widow's Remarriage Act of Gwalior State. Section 8 of this Act is to the effect that whatever words has not been previously married, are sufficient to constitute a valid marriage shall have the same effect if spoken, performed or made on the marriage of a Hindu widow. It is perfectly clear from this provision that in order to establish the fact of remarriage of Mahila Gumano the Plaintiff should have shown that in the case of Gumano's remarriage, the same ceremonies and rites were observed which are necessary to constitute the marriage of a maiden in the Teli community. Section 8, Gwalior Hindu Widow's Remarriage Act is analogous to Section 6, Hindu Widow's Remarriage Act of 1856 in force in Part A States. With reference to Section 6 of the Act of 1856 it has been held in 'Ram Pearey v. Mt. Kailasha', AIR 1930 Oudh 426 (G) that to prove the remarriage of a Hindu widow the same religious rites and ceremonies that are necessary to constitute her first marriage valid should be shown to have been observed, in her remarriage. In the present case there is no evidence, whatsoever, of any such ceremonies or rites. The Plaintiff's claim, therefore, based on the alleged remarriage must fail.