Viswanatha Sastri, J.
1. Defendant 1 is the appellant in this second appeal. The plaintiff filed the suit out of which this second appeal has arisen for the recovery of certain jewels or their value from defendant 1. His case was that his younger brother Pentayya married a lady by name Ramanna and that at the time of the marriage, the jewels now claimed were presented to Ramanna by the plaintiff out of his family funds. Pentayya, the younger brother of the plaintiff, died in October 1943 and his widow Ramanna married defendant 1 in or about May 1944. Ramanna died on 17th December 1944 having committed suicide. The present suit for recovery of the jewels presented by the plaintiff to Ramanna at the time of her marriage with Pentayya the plaintiff's younger brother, has been filed on the ground that according to the custom in the Golla community to which the parties belong, Ramanna was bound to have returned the jewels to the plaintiff on her remarriage with defendant 1. In other words, the plaintiff pleaded a custom in the community that a woman who is presented with jewels by her husband's family is bound to return them to the family of her husband if, on her husband's death, she re-marries. There is an allegation to that effect in para. 5 of the plaint and an issue on this point has also been framed by the trial Court.
2. Evidence has been adduced as regards the custom in the community to which the parties belong. P. Ws 1 and 2 who are caste elders of the community and P. W. 4, as well as D. Ws. 2 and 4, all speak to the fact that on the remarriage of a woman, the jewels presented to her by her first husband's family, revert to that family. This evidence has been accepted by both the lower Courts and I see no reason for holding that the custom pleaded has not been proved in the present case. Mr. Subramaniam learned advocate for the appellant, argues that by virtue of Section 5, Hindu Widows' Re-marriage Act (Act XV  of 1856) the custom pleaded cannot prevail against the provisions of that section. He contends that by reason of Section 123, T. P. Act, there was an absolute gift of the jewels to Ramanna when they were delivered to her at the time of the marriage and therefore they were her absolute property at the time of her remarriage. On this hypothesis, he argues that her re-marriage would not affect her absolute title to the jewels by reason of Section 5, Hindu Widow's Re-marriage Act. The fallacy of the argument is that the original gift of the jewels to Ramanna at the time of her first marriage was being itself subject to the customary incidents attaching to such gifts viz., that there should be a reverter of the property gifted to the husband's family on the re-marriage of the lady. Therefore it could not be said that the widow had an absolute interest in the jewels presented to her and that she was free to do what she liked with them even after her re-marriage. The gift was subject to the customary incidents of the community and therefore Section 5 would not affect the operation of the customary rule with reference to the gift in question. For these reasons I hold that the conclusion of the Courts below is correct and that this second appeal should be dismissed with costs. Leave to appeal is refused )