1. This is an appeal by the plaintiffs reversioners arising out of suit brought for possession of the property in the hands of Mt. Sirtaji, who had been a widow of their collateral. The plaintiffs case was that Mt. Sirtaji had remarried and had forfeited the estate of her husband which has now vested in them. Mt. Sirtaji denied that she had remarried, but it is now found definitely by the lower appellate Court that she had not been unchaste during the lifetime of her husband and has in fact remarried according to the Aryasamajic faith after the death of her husband. The learned Judge however took the view that the Sanataridharama is absolutely different from the Aryasamaj religion and that the latter is in fact a new religion, and applied the analogy of the case of a Hindu widow becoming a Muslim or a Christian and then remarrying and not forfeiting her estate. In appeal it is contended before us that Aryasamaj is not a new religion, but is a sect of Hinduism. It is not necessary for us to decide this point finally but prima facie it would seem to appear that Aryasamaj faith cannot be regarded as a new religion entirely distinct from Hinduism in the same way as Christianity or Islam would be.
2. It is not denied that according to the Aryasamaj faith remarriage is perfectly permissible. There was however no evidence led on the question whether remarriage among Aryasamajists involved a forfeiture of the Hindu widows estate or not, and there is accordingly no finding by the lower appellate Court on this point. It has been held by the Full Bench of this Court in Bhola Umar v. Kausilla 1932 All 617, that Section 2, Hindu Widows Remarriage Act (15 of 1856) does not apply to the case of those widows who are not bound to take advantage of the provisions of that Act, but can remarry independently of such provisions. In such a case it was laid down that the burden would be on the party who alleges that there was some well-settled rule, of law which divested the widow of her estate and that such party must establish a particular incident of the custom involving such forfeiture, as there could be no presumption from the mere fact that remarriage is allowed that there was necessarily a termination of the estate held by the widow.
3. If the defendant had not remarried but had merely become unchaste, it cannot be disputed that she would not have lost her estate. It is equally clear that from the point of view of the Sanatan-dharmies the remarriage being invalid there has been no valid marriage at all and she is practically in the position of an unchaste woman. Even from this point of view she would not lose the estate. She has validly remarried not according to the faith to which the plaintiffs belong, but according to the faith which she adopted according to which remarriage is perfectly valid. It seems to us that it was incumbent on the plaintiffs in these circumstances to show that among Aryasamajists there is a rule or customary law that a Hindu widow remarrying loses her husband's estate. In the absence of such proof we must hold that the defendant has not lost her estate merely because she has remarried under the Aryasamaj rule which permits such remarriages. The case in Abdul Aziz Khan v. Nirma (1913) 35 All 466 is not in point as we are not assuming that she has been converted into an entirely distinct religion.
4. Lastly the learned advocate for the appellants urges before us that an opportunity should be given to his clients to produce evidence to show that there is such a rule of forfeiture among the Aryasamajists. It was specifically alleged by the plaintiffs in their plaint that the widow had on account of such remarriage forfeited her estate, and the learned Munsif framed an issue, whether the defendant had remarried, and how did it affect the case? The plaintiffs however did not produce any evidence on this alleged custom, nor was the point urged before the lower appellate Court. We do not therefore think that in the circumstances it would be fair to the defendant to allow the plaintiffs an opportunity at this late stage to produce fresh evidence on this point. They had an opportunity of which they have not availed themselves. We accordingly dismiss this appeal with costs.