JUDGMENT

Piggoit, J. - In this suit Musammat Durga, the plaintiff-respondent, claimed.

2. Certain property as the widow of one Bhondu. The claim was resisted upon a variety of pleas. The most important were that the plaintiff's husband Bhondu had predeceased his father and that the suit was barred by limitation. These pleas have been decided against the defendants by the lower Appellate Court. In second appeal stress is laid on another plea which is also found in the written statement of the defendants. This plea was to the effect, that the plaintiff had re-married and had thereby lost any right she may ever have possessed to the property of Bhondu. It is contended that an express issue should have been framed on this point and should have been tried out by the Courts below. The first issue in the Court of first instance was--"is the plaintiff the owner of the property in dispute?" Upon that issue it was open to the defendants to tender any evidence they might wish to produce regarding the fact of Musammat Durga's second marriage and the legal consequences of such marriage, if any, amongst the people of the caste to which she parties belong. The only evidence discoverable on the record bearing on this question is Musammat Durga's denial that the had over taken any second husband. Moreover it is not a universal principle of law that by remarriage a Hindu female forfeits her right to the property of her first husband. According to the ruling of Ranjit v. Radha Rani 20 A. 476 : (1898) A.W.N. 121. this would depend on whether, by the custom of the caste to which the woman belongs, re-marriage of a widow is permitted independently of the provisions of Act XV of 1853. The reported case above referred to related to litigants of the Kurmi caste. The parties to the present suit are Bharbhunjas and I should not be prepared to say off hand that they occupy a higher social status than that of the Kurmis. In any case the defendants are, in my opinion, not entitled to have this point re-opened now, so as to enable them to tender evidences which they could have offered in the Court of first instance had they seen fit to do so. I dismiss this appeal with costs.