Jagadisan, J.
1. The property forming the subject-matter of this second appeal originally belonged to one. Govinda Padayachi. He died, leaving behind his daughter, the plaintiff in O. S. No. 310 of 1955, on the file of the District Munsiff's Court, Tirukoilur, and a widow, the 2nd defendant in that suit. The 2nd defendant, having inherited the property as the limited heir under the Hindu law, alienated the property in favour of the first defendant under Ex. B. 2, dated 7-8-1940. The third defendant in the suit was impleaded as a person who had married the second defendant after the death of Govinda Padayachi.
The plaintiff's case was that the alienation by the second defendant in favour of the first defendant was not for a purpose valid and binding upon the reversioners of the estate of Govinda Padayachi, and that, though normally she, as the presumptive revei-sioner of the estate of Govinda Padayachi, could not sue for recovery of possession of the property, she was entitled to recover possession by reason of the second defendant's marriage with the third defendant, which, according to her, attracted the provisions of the Hindu Widows' Remarriage Act, (Act XV of 1858) causing forfeiture of her rights as a Hindu widow.
2. The learned District Munsiff o Tirukoilur who tried the suit found that the alienation impugned by the plaintiff was not valid and binding upon the plaintiff and that the marriage of the second defendant with the third defendant caused a forfeiture of her rights as a Hindu widow by reason of the provisions of Hindu Widows Remarriage Act, and accordingly, granted a decree in favour of the plaintiff as prayed for.
3. The first defendant preferred an appeal, A. S. No. 279 of 1957, on the file of the District Court, South Arcot. The learned appellate Judge concurred with the finding of the trial court, on the question of the validity of the alienation by the 2nd defendant in favour of the first defendant. But the learned District Judge was of opinion that the plaintiff was not entitled to recover possession of the suit property from the alienee (the first defendant) as the provisions of the Hindu Widows' Remarriage Ace cannot be invoked, the marriage of the second defendant with the third defendant being a void marriage under Madras Act VI of 1949.
In this view of the matter, the learned Judge granted a mere decree for declaration in favour of the plaintiff that the alienation by the second defendant in favour of the first defendant was not valid and binding on the plaintiff, but negatived the relief for recovery of possession sought for by the plaintiff. The plaintiff has filed this second appeal seeking to have the decree of the trial court restored.
4. Learned counsel for the appellant contended that the plea raised under Madras Act VI of 1949 was not pleaded or put in issue during the trial of the suit and that it was sprung as a surprise at the time when the appeal was heard by the learned District Judge. There is no doubt some force in this contention of the learned Counsel. If the applicability of Madras Act VI of 1949 raised in this case were to depend upon disputed questions of fact, I would have had no hesitation in remitting the case back for retrial to have the necessary facts investigated.
But, unfortunately for the plaintiff, her definite case in the plaint was that the third defendant and the second defendant were married sometime in April, 1949. Madras Act VI of 1949 came upon the statute book on 23rd March, 1949. Not being content with having raised a specific case of marriage in April, 1949, the plaintiff also examined the third defendant as her witness who swore ia the witness box that he married the 2nd defendant sometime in 1949. Of course, his evidence is not clear as to whether the marriage took place before the Madras Act VI of 1949 or after.
No doubt, the learned District Judge has discussed the evidence and the probabilities of the case to fix the date of the marriage. But this was wholly unnecessary. So long as the averment in the plaint relating to the time of marriage stood & no attempt was made by the plaintiff to have the date altered, it was not open to the plaintiff to adduce evidence to show that the marriage took place before 1949. On the admission of the plaintiff, it is clear that the marriage of the 2nd defendant & the 3rd defendant took place after the commencement of Madras Act VI of 1949.
5. There is no difficulty in holding that, under the Hindu Widows' Remarriage Act, 1856, the marriage which the second defendant admittedly contracted with the 3rd defendant caused a forfeiture of her rights as a Hindu widow in respect of the estate of her deceased first husband (Govinda Padayachi) find, if such forfeiture was brought about by the operation of the statute, it is clear that the plaintiff will be entitled to recover possession of the suit property from the alienee, now that the alienation has been found to be not valid and binding upon the plaintiff. Section 4(1) of Madras Act VI of 1949 is as follows :
'Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnised after the commencement of this Act between a man and a woman, either of whom has a spouse living at the time of such solemnisation, shall be void, whether the marriage is solemnised within or outside the Province of Madras'.
6. I have already held that, on the admission of the plaintiff herself, the marriage of the 2nd defendant with the third defendant was one solemnised after the commencement of the Act. The only other question that has to be decided before this provision can apply is whether, at the time of the 3rd defendant's marriage with the 2nd defendant, he had a wife living. The evidence of the 3rd defendant, as P. W 4, is that his wife is one Pavanambal. He has deposed as follows :
'I have married her sister, Dhanabagyam, after the death of her husband, Govinda Padayachi ..... After the death of Govinda Padayachi, Dhanabagyam became entitled to the suit land. After the death of Govinda Padayachi Dhanabagyam was living with her parents in Nadiam village. I used to visit her very often, and I had illicit connections with her. Thereafter, I married her in 1949'.
7. It seems to me, that this evidence of defendant 3 can only be read as to mean that, on the date when he contracted the second marriage with Dhanabagyam (defendant 2), he had already married Pava-nambal, who is alive. Section 4 of the Act therefore governs the case. The marriage of the third defendant with the second defendant is therefore void in law.
The forfeiture under the Hindu Widows' Remarriage Act of 1856 can result only in a case where a Hindu widow remarries. That word can only mean that there must be a valid marriage contracted by the widow before the law can penalise her by causing forfeiture of the estate which she inherited from the first husband. Notwithstanding a purported marriage by the widow, if the marriage is not valid by reason of another statute, she cannot incur the forfeiture.
The provisions of the Hindu Widows Remarriage Act of 1856 can only apply to a case of a valid remarriage. A marriage which is declared to be void by a statute is no marriage and is non est I am dierefore of opinion that the conclusion of the lower appellate court is correct and that the plaintiff will not be entitled to recover possession of the property from the alienee during the lifetime of the second defendant
8. The second appeal fails and is dismissed.There will be no order as to costs in diis secondappeal.