R.P.MOOKERJEE, J. - (1.) THE property is suit originally belonged to one Kanto Pal. He died leaving a widow Pano Bewa and an only son, Koka. After Kanto's death Pano remarried Jadu Pal. Koka died thereafter without any issue and the property came to be in possession of his mother Pano. After Jadu's death Pano took a third husband Indra Mohan Pal. Pano gave away the property by a deed of gift to the plaintiff Dhumlal who 13 the son of the daughter of Pano by the second husband Jadu.
(2.) THE only question in issue in this appeal is whether Pano Bewa had forfeited her right to the land in suit which came to her as heir to her son Koka. It is now well settled that a widow even after remarriage is not disentitled thereby to succeed to the property left by her son by the first marriage. In Akorah Sook v Boreanee, 11 W. R. 82 : (2 Beng. L. R. A. C. 199) it was held that a widow would under Section 2, Hindu Widows' Remarriage Act (XV [15] of 1856) lose only such rights as she had at the time of that marriage in properties left by her first husband. Section 2 did not circumscribe the rights of the widow to succeed to property which might be left there, after by a son by the first marriage. There had been a difference of opinion between Kemp J. and Jackson J. The two differing judgments are reported in Okhorah Soot v. Bhaen Barionee, 10 W. R. 34. On Letters Patent appeal the views expressed by Kemp J. were affirmed. That has been the law ever since and one of the recent cases on the point is Jamini Kumar v. Thakur Dhan Baishnab, 39 C. L. J. 88 : (A. I. R. (9) 1922 Cal. 740). This has been accepted by the - Bombay High Court and reference need be made only to Chamar Haru Dalmel v. Kashi, 26 Bom. 388: (4 Bom. L. R. 73) and to Basappa v. Ragava, 29 Bom. 91 : (6 Bom. L. R. 779 F. B.). In this latter case Jenkins C. J. observed that whatever might have been his personal view as to the interpretation of the law on this point, had the matter been uncovered by authority, it would be wrong to disregard a rule affecting rights of property which had been settled by the Calcutta High Court so far back as 1863. This has also been followed by the Madras High Court in Lakshmana Sasamallo v. Siva Sasamallyani, 28 Mad. 425 : (15 M. L. J. 245). The Allahabad High Court has expressed differently and this is not in consonance with the views of the other three High Courts. If a widow remarries under a custom of the caste, Section 2 of Act XV [15] of 1856 will not be attracted at all. She will not be divested even of her widow's right upon remarriage unless it is proved upon evidence that in addition to there being a custom of remarriage of widows, there is also a custom of forfeiture of the first husband's estate upon such remarriage. One of the latest authorities on this point is Md. Abdul v. Girdhari Lal, I. L. R. (1942) ALL. 259: (A. I. R. (29) 1942 ALL. 175).
(3.) ON the facts of the present case, therefore, when Pano Bewa after remarriage got into possession of the properties belonging to her husband which had on the death of the latter vested in the only son Koka, that was in conformity with the law as interpreted in Bengal.;