1. The question involved in this case is one of inheritance to a person of the name of Dwarikanath Hazra, who was the father of the plaintiff and also of defendant No. 1. On the death of Dwariki he was succeeded by his widow, and on the death of the widow the contest is between the two daughters. One daughter, the plaintiff, at the time when the succession opened out was married and had a son. The other daughter, defendant No. 1, was a childless widow. But it has been found, and in fast it is not disputed, that in the caste to which the parties belong widow re marriage is permitted. At the time when the succession opened out, defendant No. 1, the widowed daughter, was only 16 or 17 years of are. She being thus of child-bearing age and it being open to her at any time to marry, it has been held by the District Judge that she was a daughter likely to have a male issue and, therefore, entitled to succeed along with the plaintiff, who is a married daughter having a son.
2. We think that in the absence of any proof of custom entitling this widowed daughter to succeed equally with the married daughter the learned District Judge has fallen into an error. Widow re-marriage is a custom in the caste, but that does not by itself predicate the further custom that the widowed daughter, because it is open to her to re-marry, is entitled to succeed equally with the married daughter. So far from there being any proof of the existence of any such further custom, the decision of the District Judge is in fact contrary to the pleadings in the case, The plaintiff in her pleadings alleged that the defendant No. 1 as a childless widow was not entitled to succeed. The defendant No. 1 herself accepted this position and pleaded that the true heir was neither her sister nor she, but the only son of a third sister who had apparently predeceased her father.
3. In this view of the matter we set aside the decree of the District Judge and restore the decree of the Munsif with costs in all Courts.