BHOLA UMAR Vs. MTKAUSILLA

JUDGEMENT

(1.) This is a defendant's appeal and arises in the following circumstances: One Lachhmi Narain, by caste Umar Banya, was the owner of a number of properties specified at the foot of the plaint. He died, leaving a widow Mt. Kausilla, the plaintiff-respondent, and the defendant-appellant, Bhola Umar, his uncle who obtained mutation of names in respect of the entire property in dispute. Thereupon the plaintiff sic the present suit for recovery of possession of her deceased husband's property on the ground that she was entitled to it under the Hindu law. The plaintiff's claim was resisted by the defendant on the allegation that she had re-married and, according to the custom of the caste, forfeited all rights in her deceased husband's estate. It should be mentioned at this stage that the plaintiff made no reference in her plaint to her re-marriage, a fact which, on being alleged by the defendant, was admitted by her, but she maintained that her re-marriage had not the effect of divesting her of the interest which she acquired in her deceased husband's property by the Hindu law of succession. A number of other issues were raised by the pleadings, but it is not necessary to make a mention of them in detail. One of the issues framed by the lower Court was: What is the effect of Kausilla's (plaintiff 1) marriage with Mahadev? Does she thereby lose her right of inheritance in her husband's property under law or under any custom

(2.) A number of witnesses were examined on both sides on this issue, the defendant attempting to establish that a widow forfeits on re-marriage all rights in her first husband's estate and the plaintiff, adducing evidence to the contrary. The learned Subordinate Judge, who had laid the onus of proving a custom of forfeiture on the defendant, held that he failed to discharge the onus. Accordingly he found that the plaintiff is entitled to succeed to the property left by her first husband. He also found in favour of the plaintiff on other material issues arising in the case, with the result that her suit was decreed. The defendant appealed to this Court. The appeal came on for hearing before a Division Bench of this Court on 13 June 1932. The learned advocate for the appellant referred to a series of rulings of this Court in which it was held that, if a Hindu widow could contract a valid marriage after the death of her first husband in accordance with the custom of her caste, such re-marriage would not entail a forfeiture under Section 2, Hindu Widows Re-marriage Act (Act 15 of 1856), and to those of other High Courts which took a contrary view, viz., that Section 2 of that Act which provides for forfeiture, applies in any case. It was represented to the Bench that, in view of the conflict of judicial opinions on an important question like this, reference should be made to a Full Bench for a decision. Accordingly the following question of law was referred to the Full Bench: Does a Hindu widow, who re-marries in accordance with a custom of her caste, forfeit thereby her rights in the estate of her first husband

(3.) It should be observed that it was assumed in the reference that the re- marriage was in accordance with the custom of the caste to which the widow belonged. The Division Bench did not decide the question of custom; indeed, any other question of fact, because if the Full Bench took the view which had been taken by other High Courts the plaintiff would forfeit her rights as an heir of her first husband even though by the custom of her caste, as distinguished from the statutory provision contained in Act 15 of 1856, she could re-marry. After a consideration of all the authorities bearing on the subject, the reply of the Full Bench See was in the following terms: In our opinion Section 2 of Act 15 of 1856 does not apply to the case of those widows who are entitled under the custom of their caste to re- marry and are not bound to take advantage of the provisions of the Act. Accordingly there is no forfeiture of the Hindu widow's estate on re- marriage under the Act in such a case. We are further of opinion that the proof of mere custom of re-marriage would not be sufficient to involve forfeiture under the Hindu law, and that it would be necessary for the party claiming that the estate has been forfeited on account of re- marriage to prove that there is a custom of such forfeiture in such a contingency.