NAGAR Vs. KHASE

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of possession filed by the plaintiffs who alleged themselves to be the reversioners of the last male owner.

(2.) The facts found by the Court below are that the property belonged half and half to two brothers Gopal and Dewan. Mt. Nanhi was first the wife of Gopal. Gopal died some 30 or 32 years ago. On his death Mt. Nanhi became the karao wife of his brother Dewan. The judgments do not exactly say when Dewan died but the oral evidence is that he died one or two years after the death of Gopal. It therefore seams that the death of Dewan must have taken place not later than 1889 when certain compromise was arrived at between the reversioners. Mt. Nanhi made two mortgages in 1890 which the present plaintiffs now seek to avoid on the ground that they were not binding on thorn for want of any legal necessity.

(3.) The Court below appears to have believed that among Jats to which caste the parties belong there is a prevailing custom under which karao marriages are allowed, that is to say under which widows are allowed to re-marry. If this practice prevails than a re-marriage is not invalid and it is not necessary to invoke the aid of Act No. 15 of 1856 to validate such a marriage. In the view which has prevailed in the Allahabad High Court the Act would then be inapplicable so far that the widow on her re-marriage would act forfeit her rights in the estate of her former husband, vide Mula V/s. Partab (1910) 32 All. 489 and several other previous cases. It is also clear that under Section 5 of the Act she would be entitled to inherit the estate of her second husband as if no marriage had taken place. Thus Mt. Nanhi would enter into the possession of both the half shares of Gopal and Dewan as their widow, legally entitled to remain in possession for her life. Her death took place on the 5 of February, 1909, within 12 years of the suit. It is, therefore, apparent that the plaintiffs claim can in no sense be held to be barred by time, the cause of action arising in their favour on her death when only the succession opened to both the estates.