Remarriage by a Hindu widow under the pure Hindu law resulted in the forfeiture of the property inherited by her from her first husband.

JUDGMENT - 1. The pltf., sister of one one Babu Vithu --deceased--filed Suit No. 22 of 1948 for possession of the properties of Babu Vithu from the defendants who were his divided agnates. It was the plaintiffs case that Babu Vithu died in the year 1931, that he left him surviving his widow Mohana, that Mohana remarried some time in the year 1937 and had thereafter disappeared and therefore she must be regarded as civilly dead to the family of Babu Vithu and that the plaintiff as the sister of Babu Vithu inherited his property and was entitled to obtain possession of the property from the defendants. The suit was instituted in the Court of the Civil Judge (Junior Division) at Kagal, which at the date of the institution of the suit was in the Kolhapur State, and the parties were governed by the law in force in the Kolhapur State.

2. The defendants by their written statement raised numerous contentions against the plaintiffs claim, all of which need not be set out. The contentions material for the present appeal are that the defendants were not aware of the remarriage of Mohana, and that even if it be proved that Mohana had remarried, she did not thereby forfeit her interest in the property inherited by her from Babu Vithu.

3. The learned trial Judge held that the plaintiff being the sister of Babu Vithu was entitled to succeed to his property after the remarriage of Mohana and that the plaintiffs suit was not barred by limitation. Accordingly negativing the other contentions of the defendants the learned trial Judge passed a decree in favour of the plaintiff. .

4. An appeal was preferred to the District Court at Kolhapur by the defendants against that decree. Two issues only were argued by the defendants in support of the appeal in the District Court:

(i) Whether the plaintiff proved that Mohana remarried in the year 1S37? And

(ii) whether in the absence of a specific issue framed on that point the suit should be remanded to the trial Court?

The District Court held that the plaintiff proved that Mohana remarried in the year 1937 and it was not necessary to remand the suit for a finding on an express issue raised for that purpose. The District Court accordingly confirmed the decree or the trial Court. The defendants have come to this Court in second appeal.

5. Now, the finding of the District Court that Mohana remarried in the year 1937 is based upon appreciation of evidence which the learned Judge has considered in paras. 10 and 11 of his judgment, and that conclusion is binding upon this Court in second appeal, and is not challenged in this Court.

6. But a question which was not canvassed in the Courts below is sought to be raised in this appeal, it is urged that the parties resided in the Kolhapur State territory and the Hindu Widows Remarriage Act (15 of 1856) was never made applicable to the Kolhapur State and therefore even if it be proved that Mohana remarried in the year 1937, unless the plaintiff proved that by re-marriage Mohana forfeited her right to the property inherited by her from her husband the plaintiff was not entitled to succeed merely by proving that Mohana had remarried.

Now, it may be noted that the plaintiff did in fact allege in her plaint that by remarriage. Mohana became civilly dead to the family of her first husband, and when the inheritance opened, the plaintiff being the sister of Babu Vithu was entitled to take his property. The defendants of course denied that plea. What the effect of the remarriage was upon the property inherited by Mohana from her husband was however not made the subject-matter of an issue in the trial Court. It was conceded before the learned trial Judge that the plaintiff had the right to succeed if Mohana was proved to have remarried. The learned trial Judge observed in the course of his judgment:

"The plaintiff is the sister of Babu Vithu, and as such entitled to inherit the suit properties after Mohana disappeared from the picture. In fact her right to succeed was not chall

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