P.N. Mookerjee, J.
1. The appellants wore the defendants in a suit for declaration of title and recovery of possession on partition. The suit has been decreed by both the Courts below. Hence this second appeal by the defendants.
2. The disputed properties are described in Schedules A and B of the plaint They originally belonged to the parties' admitted predecessor Babu Ram Mondal. The principal parties, namely, the plaintiffs and the principal defendants, all claim to be sons of Babu Ram, but, while the plaintiffs claim 3 bighas 4 cottahs out of the A Schedule properties exclusively on the strength of a deed of gift from their father Babu Ram and one-third share in the remaining suit properties as his legitimate sons, the defence denies the story of gift and alleges that the plaintiffs are illegitimate issues of their father Babu Ram, their (the plaintiffs') mother Dayamoyce, pro forma defendant 5, not being the legally married wife of Babu Ram.
3. As to the deed of gift, both the Courts below have found in favour of the plaintiffs and there the matter must rest. The plaintiffs' exclusive title to 3 bighas and 4 cottahs of land of the A Schedule, as covered by the said deed of gift, is, therefore, confirmed and they are held entitled to recover khas possession of that specific property, as found by the two Courts below.
4. As to the remaining part of the A Schedule property and the entire B Schedule property, the decrees of the two Courts below, giving the plaintiffs one-third share and directing partition on that basis, can be maintained only it it be found that the plaintiffs were legitimate sons of their father Babu Ram, or if it be held that the defendants are not entitled to challenge their said status on any valid ground, open to them, in this second appeal. That question must, therefore, he investigated in the light of the materials on record.
5. The central dispute is as to the validity of the marriage between Babu Ram and the plaintiffs' mother Dayamoyce pro forma defendant 5. The defence disputed the factum of this marriage, but that contention has not been accepted by any of the two Courts below. Sitting in second appeal, I am hound to accept that finding. I must hold, therefore, that Dayamoyee was actually married to Babu Ram
6. The next contention is that Dayamoyee was a widow when Babu Ram married her and such marriage was invalid in law. This contention also has been overruled concurrently by the two Courts below and I find no reason to differ from them. It no doubt appears that Dayamoyee was first married to one Judhisthir and she became a widow at an early age and, some years thereafter, her marriage with Babu Ram took place, but it appears also that, in the society, to which the parties (who are admittedly Sudras) belong, there is a custom of widow re-marriage and, on this ground, apart from anything else, e.g. the Hindu Widows' Re-marriage Act, Dayamoyee's marriage with Babu Ram has been held to be valid by the two Courts below.
With this conclusion I entirely agree and the custom found, apart from anything else, is sufficient to validate the said re-marriage.
7. The third ground of challenge was not stated in the written statement but it was sought to be raised in the course of argument on a stray statement of one of the plaintiffs' witnesses in cross-examination that Dayamoyee was Balm Ram's brother's daughter's daughter. This relationship is possibly correct and that would obviously bring the parties within the prohibited degrees for purposes of marriage. The trial Court has wriggled out of this difficulty by holding that the injunction against marriage within prohibited degrees of relationship is recommendatory and is curable and has been cured in the present case by the doctrine of 'factum valet'.
The lower appellate Court has held that, asDayamoyee, by her marriage with Judhisthir, passed away to a different Gotra, her marriage duringwidowhood with Babu Ram, who was the brotherof her maternal grandfather, would not be invalid.He relied upon this Gotrantar ( ), as he saidin his judgment, possibly having in mind the 'threegotra rule' of Hindu Law. I am not impressed byeither of the two reasonings of the two Courtsbelow. In my opinion, the rule of prohibiteddegrees is mandatory and its contravention rendersthe marriage void except where such marriage issanctioned by custom.
This is supported by Sir Gooroodas Banerjee's well-known Tagore Law Lecture on the Hindu Law of Marriage and Strirdhan, (Vide pp. 65, 66 and 77-78, Third Edition, 1913, pp. 65, 66 and 78, Fourth Edition, 1915, and pp. 70-71, 71 and 85, Fifth Edition, 1923). I do not think that any other view would be consistent with the true spirit or the principles of Hindu Law and even the powerful doctrine of 'factum valet' would be powerless in this matter. I would not, therefore, accept theground, given by the learned Subordinate Judge (who tried the suit) to overrule this branch of the defence contention.
Nor do I agree with the learned Additional District Judge (who heard the appeal in the lower appellate Court) in his view that the Gotrantar theory by which he possibly means, as I have said above, the 'three gotra rule' of Hindu Law, cures this defect in the present case.
This three gotra rule is no doubt an exception to the general rule of prohibited degrees, but it has no application here for the simple reason -- and this apart from anything else, -- that the parties to the disputed marriage, namely, Babu Ram and Dayamoyee, were not actually removed from each other by three gotras (Vide in this connection Sir Gooroodas's 'Marriage and Stridhan' 3rd Edition, p. 64, 4th Edition, p. 65 and 5th Edition, p. 70). (See also -- 'Mt. Bijan Majumdar v. Ranjit Lal', AIR 1942 Cal 458 (SB) (A), and the earlier case of -- 'Anilabala Debi v. Madhabendu Narain Roy : AIR1942Cal245 , which is not opposed to my above conclusion on this particular point). The so-called, validating ground, relied on by the learned Additional District Judge, must also, therefore, fail.
8. I am also unable to appreciate the respondents' submission in this case that the Hindu Widows' Re-marriage Act (15 of 1856), or any provision thereof, would validate Dayamoyee's marriage with Babu Rain, in the face of the fact that they were within the prohibited degrees of relationship for purposes of marriage. Sections 1 and 6 of the Act, to which my attention was particularly drawn, do not appear to have any such effect.
This is clear enough from the Act itself but I may also refer in this connection to Sir Gooroodas's observations in his 'Marriage and Stridhan', Vide 3rd Edition, pp. 268 and 270, 4th Edition, pp. 278 and 280, and 5th Edition, pp. 307 and 309.
9. In spite, however, of what I have said above, this appeal should not be allowed to succeed and the ultimate conclusion of the two Courts below must be affirmed. I have already said that this objection to the validity of the marriage in question, namely, on the ground of the parties being within the prohibited degrees of relationship, was not taken in the written statement and was uttered or attempted to be urged only during arguments on the basis of a stray statement, made by one of the plaintiffs' witnesses in cross-examination.
Whether this cross-examination should have been allowed at all in the absence of any pleading to that effect is at least a debatable question, but, in any event, in the circumstances of this case, it should not have been allowed and no argument on the point ought to have been entertained without giving the plaintiffs a proper opportunity to meet this new case. As I have already said, marriage within prohibited degrees -- particularly when the parties arc Sudras of a low order, as, apparently, they are in the present case, -- may be valid, if sanctioned by custom (Vide Dr. Banerjee's 'Marriage and Stridhan', p. 65, 3rd and 4th Edition, and 'pp. 70-71, 5th Edition, already cited; vide also pp. 248 and 251-2, 3rd Edition, pp. 258 and 261-2, 4th Edition and pp. 285 and 289-90, 5th Edition of the same book), and the plaintiffs would thus have been entitled to plead and/or to prove the requisite custom, if any, in answer to the defendants' challenge to their mother's marriage on this ground of prohibited degrees.
The necessary opportunity was denied to them by the defendants' omission to raise this particularobjection before the stage of arguments. The plaintiffs were taken by surprise and the least that they were entitled to was an opportunity to meet this new defence case. I have given this matter my most anxious consideration as to whether I shall direct a remand for determination of this question on proper materials, or whether the defendants-appellants should suffer the extreme penalty of having this new defence objection altogether excluded from consideration, and I have eventually readied the conclusion that the latter course would be quite in conformity with law and would also serve the cause of justice better in this particular case. I, accordingly, reject this new and belated defence.
10. In the result, this appeal fails and it is dismissed.
11. The parties will bear their own costs inthis Court and also in the Court of appeal below.The decree for costs, passed by the trial Court,will, however, stand.