JUDGMENT : DIXIT, J. This appeal by the defendant arises out of the plaintiff-respondent's suit for a declaration of title and possession of a certain house originally belonging to one Hatha, who died leaving a widow Mahila Gumano. The plaintiff's case is that he and his uncle Nathu were the joint owners of an ancestral house and each of them had half share in the houser; that on the death of Nathu, his wife Mahila Gumano contracted a second marriage with one Kunji, and that, therefore, Mahila Gumano forfeited her husband's estate on her remarriage and the plaintiff was entitled to succeed to the property as the nearest collateral of Nathu. Manila Gumano in her defence claimed that she was the exclusive owner of the house having inherited it from her ancestors, and denied the remarriage alleged by the plaintiff. The learned Munsif of Bhind found the remarriage not proved. He also held that the plaintiff had not proved that the house in dispute was the joint property of Nathu and himself. He, therefore, dismissed the plaintiff's suit. On an appeal by the plaintiff, the learned District Judge of Bhind allowed the plaintiff's claim. The District Judge came to the conclusion that the remarriage was established by the evidence on the record and that, therefore, Manila Gumano forfeited her husband's estate on her remarriaga under S.3, Gwalior Hindu Widow's Remarriage Act of Samvat 1992 and that the plaintiff was entitled to succeed to the property. In this appeal, learned Counsel for the appellant assails the finding of the District Judge that Mahila Gumano contracted a second marriage with Kunji by saying that the finding is not supported by the evidence on record. It was also argued that the parties are Telis by caste and belong to a community in which remarriage is, by custom, permissible without entailing forfeiture of the widow's estate and that S.3, Hindu Widow' s Remarriage Act does not apply to the case of those widows who are entitled, under the custom of their caste, to remarry. In support of his contention, learned Counsel for the appellant referred us to - 'Bhola Umar v. Mt. Kausilla', AIR 1932 All 617 (FB) (A) and - 'Narain v. Mohan Singh', AIR 1937 All 343 (B). 2. On behalf of the respondent, it was contended by Mr. In support of his contention, learned Counsel for the appellant referred us to - 'Bhola Umar v. Mt. Kausilla', AIR 1932 All 617 (FB) (A) and - 'Narain v. Mohan Singh', AIR 1937 All 343 (B). 2. On behalf of the respondent, it was contended by Mr. Anand Bihari Mishra that the finding of the learned District Judge that Mahila Gumano remarried Kunji was correct; that S.3, Hindu Widow's Remarriage Act applies not only to widows who could not remarry before the passing of the Act but also to those who were not so precluded from remarrying by the custom of their caste. Counsel for the respondent relied on - 'Gajapathi Naidu v Jeevammal', AIR 1929 Mad 765 (C); - 'Mahomed Umar v. Mt. Man Koer', AIR 1918 Cal 699 (D); - 'Vithu v. Govinda', 22 Bom 321 (FB) (E) and - 'Suraj Pal v. Uttim Pandey', AIR 1922 Pat 378 (F). It was further said that the defendant was not entitled to say in this court that the remarriage, if any, was under the custom of her caste as she had not pleaded or proved any such custom. 3. On a consideration of the arguments of the learned Counsel for parties and the evidence on record, I think the plaintiff's suit must be dismissed as, in my opinion, the plaintiff has failed to establish that Mahila Gumano contracted a second marriage with Kunji. The plaintiff sought to prove the remarriage by the evidence of his witnesses Kalyan and Mathuri. (After discussing the evidence of these witnesses the judgment proceeds as follows:) In these circumstances, the bare statement of Kalyan that Mahila Gumano remarried Kunji, can have very little evidentiary value to prove the fact of remarriage. 4. It is noteworthy that the plaintiff-respondent's claim to the property in suit is based mainly on the provisions of the Hindu Widow's Remarriage Act of Gwalior State. Section 8 of this Act is to the effect that whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female, who has not been previously married, are sufficient to constitute a valid marriage shall have the same effect if spoken, performed or made on the marriage of a Hindu widow. Section 8 of this Act is to the effect that whatever words spoken, ceremonies performed or engagements made on the marriage of a Hindu female, who has not been previously married, are sufficient to constitute a valid marriage shall have the same effect if spoken, performed or made on the marriage of a Hindu widow. It is perfectly clear from this provision that in order to establish the fact of remarriage of Manila Gumano the plaintiff should have shown that in the case of Gumano's remarriage, the same ceremonies and rites were observed which are necessary to constitute the marriage of a maiden in the Teli community. Section 8, Gwalior Hindu Widow's Remarriage Act is analogous to S.6, Hindu Widow's Remarriage Act of 1856 in force in Part A States. With reference to S.6 of the Act of 1856 it has been held in - Ram Pearey v. Mt. Kailasha', AIR 1930 Oudh 426 (G) that to prove the remarriage of a Hindu widow the same religious rites and ceremonies that are necessary to constitute her first marriage valid should be shown to have been observed in her remarriage. In the present case there is no evidence, whatsoever, of any such ceremonies or rites. The plaintiff's claim, therefore, based on the alleged remarriage must fail. 5. In this view of the matter, it is unnecessary to consider the question whether S.3, Hindu Widow' s Remarriage Act applies to the case of those widows who are entitled under the custom of their caste to remarry. Indeed, even if it had been held in this case that the remarriage was established, the question of the applicability of S.3, Hindu Widow' s Remarriage Act Gwalior to communities in which remarriage is, by custom, permissible, would not have arisen for consideration. For, the defendant denies altogether the fact of remarriage. She did not plead that the remarriage, if any, was under a custom of her community quite independent of the Hindu Widow' s Remarriage Act. Unless such a custom is specifically pleaded and proved, the plaintiff cannot be called upon to prove a custom in rebuttal involving forfeiture of the widow's estate and the question, whether a custom permitting a widow to retain her first husband' s property after remarriage can be allowed to prevail and override the provisions of S.3, Hindu Widow' s Remarriage Act, cannot arise. In the absence of any pleading or proof of the custom, any remarriage if proved, must be held to be one under the statutory provisions of the Hindu Widow's Remarriage Act. See 'Bhola Umar v. Mt. Kausilla' , AIR 1937 All 230 (H). As the plaintiff has not succeeded in proving the remarriage of Mahila Gumano and as she herself has not pleaded or proved any custom of remarriage in her community, I do not think I would be justified in expressing any opinion on the very controversial question as to the applicability of S.3 of the Act to widows of the community in which remarriage is permissible. Any such expression of opinion would, in the circumstances and facts of the case, be obiter. 6. For the above reasons, I would set aside the decision of the learned District Judge of Bhind and restore the judgment and decree of the learned Munsif Bhind dismissing the plaintiff's claim. The defendant's appeal must, therefore, be allowed with costs throughout. 7. SHINDE, J. :- I agree.