1. This was a suit for recovery of possession of certain properties covered by a deed of gift executed by one Mussamat Akalo Koer in favour of defendants 1 and 2 on the 9th March 1880, or in the alternative, for a declaration that the said deed of gift was invalid and not binding on the plaintiffs. The plaintiffs claimed as reversionary heirs to the estate left by one Bhima Singh. They alleged that they and Bhima Singh formed members of a joint Hindu family governed by the Mitakshara law, and that, after Bhima Singh's death, they were in possession of the entire joint-family property, but that Mussamat Akalo, the mother of Bhima Singh, unlawfully executed the said deed of gift in favour of defendants 1 and 2. The plaintiff's further stated that the said lady had executed an ikrarnama in September 1889 in favour of the plaintiffs, admitting their title to the property in question. The suit, we may here mention, was commenced in the life-time of Mussamat Akalo, but she died pending the suit and before the trial came on, and one of the questions that seems to have been raised in the Court below was whether the plaintiffs could succeed in recovering possession of the property in suit, the widow having been alive upon the date of the institution of the suit.
2. The defendant appellant claimed under a zuripeshgi lease from defendants 1 and 2, and she pleaded that neither Bhima Singh nor Lalu Ram, his father, formed members of a joint Hindu family with the plaintiffs; that Bhima Singh had predeceased Lalu Ram; that, upon Lalu Barn's death, the property devolved upon his widow Mussamat Akalo; and that the said lady was justified in making the deed of gift of the 9th March 1880 in favour of defendants 1 and 2.
3. Both the Courts below seem to have found that the plaintiffs and Bhima Singh did not form members of a joint Hindu family, but that, upon Lalu Ram's death, the property devolved upon Bhima Singh, his son, and that Mussamat Akalo was not justified in executing the deed of gift in favour of defendants 1 and 2. It would, however, appear that, at the trial in the Court of first instance, a question was raised, apparently for the first time, by the defendant, to the effect, whether the plaintiffs could succeed, because, assuming that Bhima Singh survived Lalu Ram, he was succeeded by his widow, Mussamat Badamo Koer. It appeared that this person, after succeeding to the estate of Bhima Singh, remarried, and, upon this remarriage taking place, the estate went into the hands of Mussamat Akalo; for that is the way in which we read the judgment of the Munsif, who held that, upon Mussamat Badamo Koer taking a second husband, she lost all rights to the estate left by Bhima Singh; and that his mother, therefore, was in possession under the Hindu law us his next heir; and that, after her death, the plaintiffs were entitled to succeed. Upon the question that was raised whether the plaintiffs could recover in this action, the suit having been instituted at a time when Mussamat Akalo was alive, both the Courts were of opinion that, inasmuch as before the decree was pronounced in the suit, the plaintiffs were entitled to succeed to the estate in the possession of Mussamat Akalo, there was no reason, why they should be driven to a second suit. And the learned District Judge, with reference to the question as to the right of Mussamat Badamo Koer, the widow of Bhima Singh, which seems to have been also raised before him in appeal, says as follows: 'In the present case remarriage is allowed by the custom of the caste, and I do not understand Act XV to apply to such cases. But it seems to me that, as remarked by Mr. Justice Wilson in Matungini Gupta v. Ram Button Boy I.L.R. 19 Cal. 289 (at p. 292), the rule of forfeiture in Act XV is based on the general principle of Hindu law; and that, even when a second marriage is permitted by custom, it entails forfeiture of all interest in the first husband's estate. It is clear, in the present case, that this was recognised, as Bhima's widow has been excluded from the inheritance for more than twenty years and has advanced no claim to it.' In the result, the Courts below decreed the plaintiffs' suit for recovery of possession of the property in question.
4. On second appeal, by the defendant, it has been contended before us, in the first instance, by the learned vakil on her behalf, that, according to the custom prevailing in the caste to which the plaintiffs' family belongs, remarriage of widows being permissible, Mussamat Badamo Koer did not in law forfeit her interest in her husband's estate, which she took upon his death. With reference to this point, it seems to us, in the first place, that the question does not properly arise in the case, because, as I have already pointed out, it was no part of the defendant's case that Badamo Koer succeeded Bhima Singh in this property as his widow, and that Badamo Koer continued, even after her remarriage, to hold the estate, or to be entitled to that estate at the time of the institution of the suit. On the other hand, her case was that Bhima Singh had predeceased Lalu Ram, and he had, therefore, no title at all to the property in question. And referring to the judgments of both the Subordinate Judge and the District Judge, it seems to us that, although Badamo Koer did succeed to the estate as the widow of Bhima Singh, still, upon her remarriage, she ceased to have any connection with that estate; and that, upon that event taking place, it went into the hands of Mussamat Akalo as the nearest heiress to her son Bhima Singh. If, however, it be necessary for us to express any opinion upon the question of law that has been raised before us, we think it would be sufficient for us to refer to the case of Murugayi v. Viramakali I.L.R. 1 Mad. 226, in which the learned Judges, who decided it, upon this question expressed themselves as follows: 'Now the principle on which a widow takes the life interest of her deceased husband, when there is no male heir, is that she is a surviving portion of her husband, and where the rule as to remarriage is relaxed and a second marriage permitted, it cannot be supposed that the law which these castes follow would permit of the remarried widow retaining the property in the absence of all basis for the continuance of the fiction upon which the right to enjoyment is founded;' and that is also the view that was expressed by Wilson, J., in the case of Matungini Gupta v. Ram Button Boy I.L.R. 19 Cal. 289, and we may say that we entirely agree in it. It seems to us that, upon the remarriage taking place, the widow, though, according to the custom prevailing in her caste, a remarriage was permissible, forfeited the estate, which was but a widow's estate that she had inherited from her husband, and that the property devolved upon Mussamat Akalo as the legal heiress of her son Bhima Singh.
5. Another point that has been raised before us by the learned vakil is as to whether the plaintiffs were entitled to a decree for possession in this case, the suit having been instituted during the lifetime of Mussamat Akalo. No doubt the ground upon which the plaintiff's based their action was a different one from that upon which they have recovered judgment in this case. They sued upon the ground, as I have already mentioned, that they and Bhima Singh formed members of a joint Hindu family; but it would appear that all the issues which bore upon the respective cases which the parties sought to make in the first Court were raised in that Court; and it transpired at the trial that, although Bhima Singh did not form a member of the joint Hindu family with the plaintiffs, still the deed of gift, executed by Mussamat Akalo in March 1880, was a deed which she was not justified in executing-a deed which was altogether inoperative, so far as the plaintiffs' reversionary heirs were concerned. It will be remembered that the suit, as brought in the first Court, was not a suit for a declaratory relief only, but a suit for that relief as also for possession. It seems to us that the plaintiffs having claimed for recovery of possession in the suit, and Mussamat Akalo having died previous to the time when the case was taken up for trial, there is no reason why the plaintiff's should be driven to a separate suit for recovery of the same relief which they asked for in this suit, but which they asked upon a ground somewhat different from that upon which they have been allowed to recover judgment. We think, upon the whole, that there are no sufficient reasons for our interference with the judgment of the Court below, and we accordingly dismiss this appeal with costs.
6. We may add that our attention was called by the learned vakil for the appellant to the case of Har Saran Das v. Nandi I.L.R. 11 All. 330, in the Allahabad Court, in which the learned Judges seem to have expressed themselves to the effect that a widow, belonging to a caste in which remarriage is permitted, does not, upon her second marriage, forfeit her interest in the estate, and that Section 2 of Act XV of 1856 does not apply to such a widow. It does not appear that the true position of a Hindu widow inheriting the estate of her husband was considered in that case. That was considered in the cases of Murugayi v. Viramakali I.L.R. 1 Mad. 226 and Matungini Gupta v. Ram Button Roy I.L.R. 19 Cal. 289 to which we have already referred.