1. The defendants are the appellants before us and the facts of the suit, out of which this appeal has arisen are, shortly stated, as follows:
The plaintiff is the daughter of one Lalua Singh, who held a six pies share in ,a certain jote. The defendant No. 1, Santala Bewa, is Lalua's second wife. On Lalua's death she inherited the share of Lalua in the said jote. Thereafter the defendant No. 1 married again, according to the custom of the Rajbansis and subsequently she sold the said six pies share in the jote to defendant No. 2, who again sold the same to defendant No. 3. The plaintiff has brought the present suit for recovery of possession of the said six pies share on the ground that the defendant No. 1 by her re-marriage had forfeited her right to the said share and that the defendants Nos. 2 and 3 by their purchase had acquired no right and title to the same. The defendant No. 1 in her defence stated that there was a special custom among the Rajbansis that a widow did not forfeit her right to her husband's property by her re-marriage.
2. The Munsif held that the Rajbansis were not Hindus, and that the parties were governed not by Hindu law, but by custom and that among the Rajbansis a widow could keep a Dangua, and by keeping one she was not divested of her former husband's property. He accordingly held that the defendant No. 1 did not forfeit her first husband's property by her remarriage and accordingly dismissed the suit.
3. The plaintiff appealed to the Deputy Commissioner of Darjeeling and the latter held that the special custom referred to it by the Munsif had not been satisfactorily established. It was also held by the learned Deputy Commissioner that the Rajbansis were governed by the ordinary Hindu law and that, therefore, the defendant No. 1 forfeited the estate inherited from her first husband by her re-marriage, and consequently the defendants Nos. 2 and 3 acquired no title to the property in suit by purchase from the defendant No. 1.
4. On behalf of the Appellants it has been contended before us that the lower Appellate Court was wrong in holding that the Rajbansis were governed by the ordinary Hindu law, and, in the second place, that there was a difference between a widow, among the Rajbansis, re-marrying and keeping a Dangua according to the custom which prevails among the Rajbansis, and that the fact of the defendant No. 1, having kept a Dangua did not entail any forfeiture of the interest taken by her in her first husband's estate.
5. As regards the first contention that the Rajbansis are not governed by the ordinary Hindu law reliance has been placed upon the decision of the Privy Council in the case of Phanindra Deb Raikat v. Rajeshwar Das (1885) 11 Cal. 463. The question of acknowledgment and recognition of Non-Hindus as Hindus arose in the following manner in that case. The dispute related to the succession of a zamindari called the Baikantpur Raj, and the question their Lordships had to determine was as to the validity of the adoption of the defendant in that case as a son to the deceased zamindar. It was found that the family of Cooch-Behar, to which the parties belonged, originally belonged to the Cooch-Behar aboriginal tribe, which had abandoned their old customs, called themselves Rajbansi Kshatriyas, adopted Hinduism as their religion and claimed a divine ancestry for their chief, who traced his pedigree to the God Shiva. Upon this, the High Court presumed that the parties were Hindus and cast upon the plaintiff who was a rival claimant, the burden of proving the invalidity of the defendant's adoption.
6. On a review of their family history, their Lordships held that it showed 'that although they affected to be Hindus, they had retained and were governed by family customs, which as regards some matters, were at variance with the Hindu law.' They therefore held that the family was subject only to customary law and that as no custom in favour of adoption had been proved, the defendant lost his estate, though he held a deed of adoption from the deceased zemindar, such deed according to the opinion of their Lordships failing to convey the property to a persona designate. In that case, the ratio of the decision was that the process of conversion into Hinduism was incomplete when the ease arose. In the case of Ramdas v. Chandra Dassia (1892) 20 Cal. 409 where the parties were Rajbansis, the Court held that the process of conversion into Hinduism was complete and that the ordinary Hindu law applied to the parties.
7. The distinction between the two cases referred to above was this, that while in the one case the origin and history of the family was known, in the other case it was not, and there being nothing to show that the conversion into Hinduism in the latter case was incomplete, the Court assumed the ostensible state to be the real state and held the parties to be Hindus bound by the lex loci, adding 'it must be taken that they have adopted in its entirety one form or other of Hindu law, and it being uncertain which form they adopted, it is not unreasonable to infer that they adopted the form which prevailed in the locality.'
8. In his 'Tribes and Castes of Bengal' Vol. I, at p. 491, Sir Herbert Risley observed as follows : 'The transformation of the Koch into the Rajbansi, the name by which they are now known in Rangpur, Jalpaigury and Kuch or Kuch Behar, is a singular illustration of the influence exercised by fiction in the making of caste. As described by Buchanan at the beginning of the century and by Hudson some fifty years ago, the Koch tribe was unquestionably Non-Aryan and Non-Hindu. Now the great majority of the Koch inhabitants of Northern Bengal invariably describe themselves as Rajbansis or Bhangar-Kshatriyas - a designation which; enables them to pose as an outlying branch of the Kshatriyas who fled to these remote districts in order to escape from the wrath of Parsu' Ram. They claim descent from Raja Dasarath, father of Rama; they keep Brahmans, imitate the Brahminical ritual in their marriage ceremony and have begun to adopt the Brahminical system of gotras. In respect of this last point they are now in a curious state of transition, as they have all hit upon the same gotra (Kasyapa), and thus habitually transgress the primary rule of the Brahminical system which absolutely prohibits marriage within the gotra. But for this defect in their connubial arrangements - a defect which will probably be corrected in a, generation or two as they and their purohits rise in intelligence, there would be nothing in their customs to distinguish them from the Aryan Hindus although there has been no mixture of blood and they remain thoroughly Koch under the name of Rajbansi. Although there is no historical foundation for the claim of the Rajbansis to be a provincial variety of Kshatriyas, it is a singular fact that the title of Rajbansi serves much the same purpose for the lower strata of the Hindu population of Northern Bengal as the title Rajput does for the land-holding classes of dubious origin all over India. The one term like the other, serves as the sonorous designation of a large and heterogeneous group bound together by the common desire of social distinction.'
9. There are three kinds of marriages prevalent amongst the Rajbansis, viz., (1) Gandharva, (2) Brahma and (3) widow marriage. Widow marriage amongst Rajbansis takes place without any ceremonies whatever. The peculiar circumstances under which widows are received by men as wives, amongst Rajbansis, have given rise to different names by which such women are known, such as, Dangua wife, Dhoka wife, Pashua wife. Dang means a stick or a blow dealt with a stick; when a widow lives by herself and a man goes to the house with a dang or stick in his hand and strikes a blow with it on the roof of the house, and an enters in and takes possession of the woman such woman is called a Dangua wife. (See Hunter's Statistical Account of Bengal, Vol. X, page 377).
10. In this case the lower Appellate Court has observed that it is a matter of common knowledge that the Rajbansis have assumed the sacred thread, and have termed themselves Chetries, and that in these circumstances it is not understood why it should be held that they are not governed by the ordinary Hindu law, although there may be a custom prevailing amongst them which renders remarriage of widows permissible.
11. In our opinion the parties to this particular case are governed by the ordinary Hindu law, and in that view of the matter the question arises whether having regard to the provisions of Act XV of 1856, a Rajbansi widow after re-marriage forfeits her former husband's estate, even though there is a custom of re-marriage in her caste. Now, the second section of Act XV of 1856 contemplates the case of any widow, which may include even a widow of a class or caste in which such marriages are allowed or permitted by caste custom, and the scope of this section has been the subject of controversy in many cases. Sea Murugayi v. Veeramakali (1877) 1 Mad. 226, Vithu v. Govinda (1896) 22 Bom. 321, Panchappa v. Sanganbasawa (1899) 24 Bom. 89 and Matungini v. Ram Ruttun (1891) 19 Cal. 289.
12. The consensus of opinion, so far as this Court and the Madras and Bombay High Courts are concerned, is that the second section of Act XV of 1856 applies not only to widows who could not re-marry before the passing of the Act, but also to those who were not so precluded from re-marrying, either by law or custom. Sea Nitya Madhav v. Srinath (1907) 8 C.L.J. 452. In the case of Basul Jehan Begum v. Ram Saran, Singh (1895) 22 Cal. 589, it was held that a Hindu widow on re-marriage forfeits the estate inherited from her former husband, although according to the custom prevailing in her caste remarriage is permissible. Much support is lent to this view by the fact that in almost all castes in which a re-marriage is allowed by custom, such marriages are followed by forfeiture of the first husband's estate. In the case of Govri Charan Patni v. Sita Patni (1900) 14 C.W.N. 346, it was held that a Hindu widow after remarriage forfeits her deceased husband's estate even though there is a custom of remarriage in her caste. We are not unmindful of the fact that a different view has been taken by the Allahabad High Court. See Khuddo v. Durga Pershad (1906) 29 All. 122 and Mula v. Partab (1910) 32 All. 489. But we think we are bound by the decisions of this Court to which reference has already been made.
13. The result, therefore, is that this appeal fails and must be dismissed with costs.