HIRA DEI Vs. BODHI SAHU

JUDGEMENT

(1.) This is a second appeal by the unsuccessful defendant, Hira Bewa, the widow of one Ainthu Sahu, and raises an interesting question of Hindu law. Ainthu died issueless sometime before the settlement of V S 1322 (1915) leaving him surviving his widow Hira Bewa and her name was recorded in the Settlement papers of the year 1915. Soon afterwards she remarried one Gadadhar Sahu and has been living with him for the last 35 years. The plaintiffs are the agnates of the deceased Ainthu Sahu and claim to have been in possession of the disputed lands ever since Hira's remarriage. As the widow was trying to alienate the same the plaintiffs raised this suit for a declaration of their title and confirmation of possession with a prayer for a permanent injunction against the defendant.

(2.) Both the Courts below have concurrently found that the plaintiffs have been in possession of the disputed lands ever since the re-marriage of the defendant with Gadadhar Sahu. The substantial contention urged on behalf of the defendant- appellant in the Courts below, and repeated before us, is that the defendant is entitled to the property of her deceased first husband, which vest- ed in her on his death, as the caste to which she belongs permits re-marriage of widows. It is urged that the plaintiffs should be non-suited in the absence of proof that remarriage entails forfeiture of the estate of her deceased husband which she had inherited on his death. Neither party adduced evidence on the question of any custom regarding the forfeiture of property consequent upon the re-marriage of a widow. Both the courts below, however, have proceeded on the footing that under the Hindu law a widow works out her civil death on her re-marriage and loses all right to the estate of her deceased husband.

(3.) The defendant's contention is supported by the view taken by the Allahabad High Court in the Full Bench decision in -- 'Bhola Umar v. Mt. Kausilla', AIR 1932 All 617 (FB) (A), where it has been held that a custom of re-rnarriage does not carry with it as a legal incident thereto, a further custom of forfeiture upon such re-marriage and that it would be necessary for the party claiming that the widow's estate has been forfeited on account of re-marriage, to prove that there is a custom of forfeiture in such a contingency. This view, however, has not found favour in any other High Court. But learned counsel for the appellant urged that there is no reported decision of this High Court covering the point and therefore it needs consideration at our hands. The point has accordingly been argued at great length and learned counsel for the appellant has, after painful research, placed a mass of case law for our consideration.