JUDGMENT
P.C. Banerjee, J.
1. This appeal arises out of a suit brought by the appellant for possession of certain property which admittedly belonged to one Mahant Prabhuban. He was an ascetic of the class called Grihast Goshain, that is, a sect who had not renounced the world and held property. He married two wives, namely the plaintiff Musammat Ram Dei and the 1st defendant Musammat Kishan Dei and died leaving them surviving. Upon his death, which took place on the 8th of January 1906, the two widows took possession of the property. Before his death Prabhuban made two Wills, the last of which is dated the 22nd December 1905. There was some litigation in regard to his property after his death, but it is not necessary for the purpose of this case to refer to it. The plaintiff states in her plaint that she and the first defendant inherited the property of Prabhuban and were in possession. She further alleges that the first defendant Musammat Kishen Dei had become unchaste and was living with the second defendant, the brother of the deceased, as his concubine; and that for this reason she forfeited her rights in the property of her deceased husband. In the 10th paragraph of her plaint she states that the defendant No. 1 contracted a karao marriage with the second defendant against the custom of the family of the father and husband of the plaintiff and defendant No. 1, and that such karao marriage was illegal under the Hindu Law. In the 11th paragraph of the plaint it was stated that this act of the first defendant, namely, the contracting of the karao marriage, was contrary to the practice and custom of the family and was illegal under the Hindu Law and that, therefore, the first defendant was liable to be dispossessed of the, property left by Prabhuban, her first husband, “under the Will executed by the deceased Mahant and according to the custom in vogue among the Goshains.” On behalf of the defendants it was admitted that a karao marriage had been contracted by the first defendant with the second defendant, but it was urged that such marriage was valid according to the custom of the caste and the family; that by reason of such marriage the first defendant did not forfeit her share in her first husband’s estate, and that the plaintiff’s suit was, therefore, not maintainable. The Court below found that a custom prevailed among Goshains of the class to which the parties belong under which a karao marriage can be validly contracted; that such marriage did not entail a forfeiture of the interest of the widow, who contracted the karao marriage, in the property of her first husband, and that the plaintiff was not entitled to recover from the defendant the property taken by her. That Court dismissed the suit. The plaintiff has preferred this appeal and three contentions have been put forward on her behalf. The first is that assuming that a valid karao marriage has been contracted by the first defendant with the second defendant, such marriage dissolved the connection of the first defendant with the family of Prabhuban and must be treated as civil death in consequence of which she ceased to have any interest in the property of her first husband. It is urged that this would be so irrespective of the provisions of Act XV of 1856. The next contention is that according to the custom of the caste a karao marriage cannot be validly contracted; and it is lastly urged that if such a custom prevails it is also the custom of the caste that upon a karao marriage being contracted, the woman contracting such marriage forfeits her interest in her first husband’s estate. As regards the first point, the matter is concluded by the rulings of this Court in a series of decisions commencing with Har Saran Das v. Nandi 11 A. 330; A.W.N. (1889) 77 and ending with Mula v. Partab 6 Ind. Cas. 116; 32 A. 489; 7 A.L.J. 417. It has been held in these cases that if a widow can validly re-marry according to the custom of her caste, such a re-marriage does not deprive her of her right to the estate of her deceased husband. It was pointed out in the case of Gajadhar v. Kaunsilla I Ind. CAS. 761; 31 A. 161 6 A.L.J. 107 that the effect of the rulings of this Court was that not only is Act XV of 1856 inapplicable in the case of a widow who is permitted by the custom of her caste to re-marry, but she does not forfeit the property inherited by her from her first husband, and the relationship with the family of her first husband does not come to an end. We feel ourselves bound by the rulings of this Court and see no reason to depart from the view adopted in these rulings. It is true that other High Courts have, in the cases referred to in the judgment of the Court below, held a contrary view, but as I have said above, we ought to follow the rulings of our own Court unless we are prepared to refer the matter to a larger Bench and we are agreed that that course need not be followed. The first contention, therefore, raised on behalf of the appellant must be overruled. If, as is contended, Musammat Kishen Dei has become unchaste, since it is alleged that such unchastity has taken place subsequently to her inheriting the property of her first husband, she does not by reason of such unchastity forfeit, according to the decision of their Lordships of the Privy Council in the case of Moniram Kolita v. Keri Kolitani 5 C. 776; 6 C.L.R. 322; 7 I.A. 115 (P.C.) Sar. P.C.J. 103; 3 Suth. P.C.J. 765; 4 Ind. Jur. 363, 3 Shome L.R. 198, the interests which vested in her by right of inheritance to her husband. We have, therefore, to consider whether any custom prevails among the caste to which the parties belong under which a karao marriage may be validly contracted. On this point there is overwhelming evidence on the part of the defendants. The learned Subordinate Judge has referred to it at length. The witnesses who were examined cited no less than 189 instances in which such marriage was contracted and was recognised as a valid marriage. We have not been referred to anything, which would induce us to differ from the conclusion of the Court below on this point. It is urged on behalf of the appellant that even if a karao marriage prevails, the plaintiff has proved that in the case of such marriage the woman who re-marries forfeits her rights to the estate of her first husband. Some wajib-ul-araiz have been relied upon as establishing this custom. It is not disputed that these wajib-ul-araiz would not by themselves be sufficient to establish the custom contended for. The oral evidence on the point is very meagre. The wajib-ul-araiz do not relate to the particular village in which the parties reside. On the other hand there is a mass of Oral evidence proving that a widow who re-marries in the karao form does not thereby forfeit her rights in her first husband’s estate. I may also observe that according to the pleadings as set forth in the plaint and according to the issues framed in the Court below, it was not the case of the plaintiff that in the case of a valid karao marriage the woman contracting such marriage forfeited by custom the interests acquired by her in the estate of her deceased husband. It is true that some evidence was adduced on the point, but as I have already said, this evidence on behalf of the plaintiff was of the vaguest description. On the other hand, the evidence which the defendants put forward and to which the Court below refers at some length, rebuts the correctness of the allegations made on behalf of the plaintiff. In this view it is not necessary to decide whether the agreement executed by the parties on the 8th of October 1910 precludes the plaintiff from maintaining the suit. If I had to express an opinion on the point, it seems to me that the last clause of that agreement leaves untouched the rights of the parties under the Hindu Law in respect of the property which they agreed to hold separately and in defined shares. It is stated in that document that this partition has been made simply for the sake of facility in the management of the estate and in the obtaining of separate proprietary possession and for the purpose of having entries made in the Revenue Court. No passage of this document, whether in whole or in part, will affect the legal rights and powers of any party in respect of the property, the subject of the partition.” However, as I have said above, it is not necessary to decide this point as upon the other issues raised in the case, the plaintiff’s suit must, in my opinion, fail. I would dismiss the appeal with costs.
Piggott, J.
2. I agree in the judgment delivered by my learned colleague, both as regards the decision and the reasoning on which it is based. I desire to add a few words with respect to the pleadings. Dr. Sunder Lal, who has laid the case for the appellant before us in the only possible form in which it could be argued, has endeavoured to rest that case entirely upon the question of law, as to which this High Court has differed from other High Courts, in respect of the operation of Section 2 of the Hindu Widows’ Re-marriage Act, XV of 1856. If I thought that this question arose in the present case in a pure form, I should almost have felt disposed to support the suggestion addressed to us on behalf of the appellant for a reference to a larger Bench. On the pleadings, however, it seems to me exceedingly difficult to rest the case upon this basis now. The plaintiff might no doubt have come into Court treating the karao union between the first and second defendants as a valid re-marriage. She would then have been in a position, firstly, to appeal to the opinion expressed by other High Courts in India with regard to the section of the Statute above referred to and to ask for a reconsideration of the opposite view which has so long prevailed in this Court. Secondly, she might have directed her evidence expressly towards proving that amongst Goshains, that is to say, amongst the class to which these parties belong, a widow when contracting a marriage in the karao form with a second husband is universally regarded as forfeiting any property which may be in her possession by right of inheritance from her first husband. It seems to me, however, that the plaintiff has made it exceedingly difficult for herself to take up this position now in appeal. The pleadings embodied in paragraphs 10 and 11 of her plaint are not really open to any alternative interpretation. They deny the validity of the karao union, and describe the relationship existing between the first and second defendants subsequent to that union as unchastity pure and simple. The plaintiff was no doubt aware that, on these pleadings alone, she could not claim the estate; but she does claim it, on the ground that the unchastity in this particular case entails forfeiture of the property, firstly, by reason of the Will left by Mahant Prabhuban, the first husband of defendant No. 1, and secondly, “according to the custom in vogue among the Goshains.” The plea with regard to the Will is almost completely answered by the simple remark that, according to the plaintiff herself, vide paragraph 2 of the plaint, the first defendant did not take this property under the Will, but as an heir under the ordinary Hindu Law. If any further answer be required, it might be added that whatever view the Court might take as to the validity of a karao union amongst these Goshains, it is certain that the testator himself did not regard it as amounting to unchastity, there being documentary evidence that he had on a former occasion recommended both his widows to contract this very union. With regard to the custom of the Goshains, the plaintiff is in this difficulty, that she did not direct her evidence specifically towards proving that a Goshain widow who has become possessed of property by the death of her husband forfeits the same by an act of unchastity. She confined herself to an attempt to meet the defendants’ case with regard to karao marriages in particular. The defendants having set out to prove that karao marriages were generally recognised as valid among the Goshains, the plaintiff endeavoured to counter this by adducing evidence to show that this custom was subject to a qualification, namely, that a widow so re-marrying forfeits any property inherited by her from her first husband. Now the evidence directly bearing on this point is not voluminous and it would be surprising if it were so. It is only in exceptional cases that a widow inherits property from her husband and obtains possession of the same. It is rarer still for a widow, possessed of property sufficient for her maintenance, to contract a second marriage. The instances which the parties have been able to prove are consequently not numerous; but it seems to me on an examination of the record that there is a great preponderance of evidence on this point in favour of the defendants. I doubt whether the plaintiff can be said to have made out a single clear instance in which a widow who had obtained possession of her first husband’s property was divested of the same and dispossessed upon her contracting a karao marriage with another man. On the other hand, the defendants produced witnesses who were able to speak to a certain limited number of specific instances in which a widow so re-marrying retained possession not merely over moveables, but in some cases even over immoveable property, which she had inherited on the death of her first husband. Under these circumstances I think that the plaintiff’s case must fail and that it is useless to ask this Court in a case thus complicated by the pleadings and by its own particular evidence to enter upon a reconsideration of the pure question of law with regard to the effect of Section 2 of Act XV of 1856.
3. The order of the Court is that the appeal is dismissed with costs including fees on the higher scale.
