JUDGMENT : A.K. Sharma, J.:- 1. This appeal has been preferred by the appellant -defendant under Section 100 of CPC being aggrieved by the judgment and decree dated 17/02/2007 passed by learned First Additional District Judge Ashok Nagar, Guna in Civil Appeal No. 21-A/06 whereby the judgment and decree dated 21/3/2006 passed by learned Civil Judge, Class-I, Guna in Civil Suit No. 108- A/04 has been reversed. 2. This Court vide order dated 12/02/2009 admitted this appeal on the following substantial question of law: "Whether impugned judgment and decree is not sustainable in law on account of non consideration of effect of Section 2 of the Hindu Widows Remarriage Act, 1956, despite finding in para 18 that Godawari Bai had made Kanhaiyalal as husband after death of Ratan Singh?" 3. The brief facts giving rise to the appeal are that respondents-plaintiffs No. 1 to 3 have filed a suit for declaration of title and partition in respect of agricultural land survey No, 103, 104, 105, 106, 109, and 110 having total area of 5.529 hectare situated in village Shadhora, Tahsil and District Ashok Nagar. At the time of Zamidari, Bhagwan Singh was the owner of the above said land. He breathed his last leaving behind two sons Laxman Singh and Ratan Singh, who became owner of half share .each of the suit land. Laxman Singh died about 30 years prior to filing of the suit. Wife of Laxman and her children are owner of the share of the property of the Laxman. Ratan Singh died about 27 years before filing of the suit. Plaintiffs and defendant-Ram Singh are owner of the share of property belonging to Ratan Singh. Without knowledge of the plaintiffs, name of Ram. Singh was recorded in revenue record. On 29/07/2004, when plaintiffs came to know about this fact, they filed a suit for declaration of possession stating that they are co-owners and possession holder of the suit land. 4. The appellant-defendant in his written statement submitted that plaintiffs Ushabai and Gulab Singh are not the children of late Shri Ratan Singh. During last time of Ratan Singh, plaintiff Godawari left the house of Ratan Singh and thereafter she was residing with Kanhaiyalal. Plaintiffs Ushabai and Gulab Singh are the children of Kanhaiyalal, therefore, they have no right in the property. Father of defendant Ratan Singh had executed a Will in favour of defendant Ram Singh. During last time of Ratan Singh, plaintiff Godawari left the house of Ratan Singh and thereafter she was residing with Kanhaiyalal. Plaintiffs Ushabai and Gulab Singh are the children of Kanhaiyalal, therefore, they have no right in the property. Father of defendant Ratan Singh had executed a Will in favour of defendant Ram Singh. It has also been contended that Godawari Bai is not legally wedded wife of Ratan Singh. She was married to Hazari and thereafter live with Ratan Singh and in the last time of Ratan Singh, she was residing with Kanhaiya at Rajasthan since 1973, therefore, plaintiffs are not entitled to any share in the property. 5. Learned trial Court rejected the suit holding that it is not proved that suit land is of co-ownership of plaintiffs and defendant and that the plaintiffs are not entitled for partition and separate possession of the suit land. The finding of the learned trial Court has been reversed by learned appellate Court holding that Godawari Bai is legal wife of late Ratan Singh and she has remarried with Kanhaiyalal after the death of Ratan Singh. Therefore, Godawari is widow of Ratan Singh and plaintiffs No. 2 and 3 are children of Ratan Singh. They are not the children of Kanhatyalal. Learned lower appellate Court has also held that no will has been executed by Ratan Singh in favour of defendant Ram Singh and both the plaintiffs and defendant are having 1/4 share each in the suit land and plaintiffs are entitled to get possession of their share after partition. 6. For decision of this appeal and substantial question of law, the main question for consideration is whether Godawari Bai married Kanhaiyalal in the lifetime of Ratan Singh or not? There is no dispute that Godawari married Karhaiyalal of village Faliya, District Baran, Rajasthan. 7. So far as the question of marriage of Godavari Bai with Kanhaiyalal during lifetime of Ratan Singh is concerned, Ex. D/17 is a document "Will" (Panchnama), executed by Ratan Singh which it has been mentioned that Ram Singh is his only son aged two years and his first wire aad died and he had got married with Godawari Lodhi. But when he suffered from Cancer, Godawari left his house six months back. It is also mentioned that if Godawari comes back then she will get maintenance from the property of Ratan Singh. But when he suffered from Cancer, Godawari left his house six months back. It is also mentioned that if Godawari comes back then she will get maintenance from the property of Ratan Singh. So far as plaintiffs evidence is concerned, some of the documents from the record of criminal case ST No. 271/02 including the judgment of the year 2004 have been filed which has been registered on the report of plaintiff Gulab Singh showing name of his father as Ratan Singh and age 24 years on the day of incident i.e. 3/7/2002. In the statement of Ram Singh also, certified copy of which is Ex. P/24, it has been stated by Ram Singh that complainant Gulab Singh is his younger brother. But in cross-examination, he has admitted that Gulab Singh does not lived at Shadhora, he lives at Rajasthan. Sometimes in a year or in six months he used to come to Shadhora. Statement of Gulab Singh (PW/2) shows that he is living at Shadhora but in cross-examination he has admitted that his mother took him along with Ram Singh and sister Ushabai to village Faliya, District Baran, Rajasthan and at that time his age was 10-12 years. His mother took him at about 25 years back. But he also admitted that in voter list his name alongwith the name of his mother is there in village Faliya as he was young, therefore, his name has been inserted in the voter list of village Faliya. But he has also admitted that he tender his vote at village Faliya. At the time of statement, he mentioned his age 35 years on 27/11/2005. But in the FIR lodged by him he has mentioned his age 24 years in the year 2002, on the other hand defendant has filed record of another criminal case No. 89/02, which was registered against Gulab Singh resident of village Faliya and in the final report, father's name of Gulab Singh is mentioned as Kanhaiyalal in which his age has been shown as 27 years on the date of arrest i.e., 27/8/2002. Further voter list Ex. D/2 also shows that father's name of Gulab Singh is Kanhaiyalal in the voter - list of the year 1998 in which his age has been shown as 28 years. 8. Further voter list Ex. D/2 also shows that father's name of Gulab Singh is Kanhaiyalal in the voter - list of the year 1998 in which his age has been shown as 28 years. 8. Considering the fact that Will was executed in the year 1970 and Godawari left Ratan Singh about six months prior to that, the age of Gulab Singh as 28 years in the year 1998 as per document Ex. D/1 and 24 years according to document Ex.D/2, which was FIR lodged by Gulab Singh himself, both these documents appears to be contradictory and shows that Gulab Singh born after 1970 when his mother left the house of Ratan Singh. 9. Learned trial Court while giving finding against the plaintiffs regarding issue No. 2 has considered the fact that Ram Singh is in possession of the suit land after the death of his father Ratan Singh and his name is also mutated in the revenue records. Trial Court further while considered the fact that according to plaintiffs Ratan Singh died about 27 years back and according to defendant, Ratan Singh died about 35 years back has given a finding that during lifetime of Ratan Singh, Godawari Bai has married Kanhaiyalal and plaintiffs Ushabai and Gulab Singh are the children of Kanhaiyalal and Godawari Bai and believe the will dated 4/6/1970. 10. The findings of the learned trial Court seems to be proper and reasonable because learned lower appellate court while considering the fact of execution of Will (Ex. D/17), has failed to consider the fact that Will is a 30 years old document when tendered in evidence and therefore is to be looked into. This fact has been mentioned in the Will that Godawari Bai left Ratan Singh before execution of Will i.e. during lifetime of Ratan Singh, therefore, the question whether the marriage of Godawari Bai took place with Kanhaiyalal during lifetime of Ratan Singh or after his death is to be read with the contents of Will (Ex D/17). Learned appellate Court has erred in believing the plaintiffs witnesses Gulab Singh (PW/1), Godawari Bai (PW/2), Amar Singh (PW/3) and Pahalwan Singh Bhadoria (PW/4) by non-considering their evidence in light of Will (Ex. D/17). 11. Learned appellate Court has erred in believing the plaintiffs witnesses Gulab Singh (PW/1), Godawari Bai (PW/2), Amar Singh (PW/3) and Pahalwan Singh Bhadoria (PW/4) by non-considering their evidence in light of Will (Ex. D/17). 11. Learned trial Court has also taken into consideration the fact that even if during lifetime of Ratan Singh, Godawari Bai left him, her marriage with Kanhaiyalal cannot be treated as legal because her first husband was alive and there was no evidence that in the society of plaintiffs and defendant, there is a custom of second marriage while first husband is living. Gulab Singh (PW/1) son of Godawari Bai admitted in his cross-examination that before Ratan Singh, Hazari Lodhi was husband of Godawari Bai. Amar Singh (PW/3) has discarded the evidence of Godawari in respect of the fact that when she (Godawari) left the house of Ratan Singh, she leave Ram Singh with Shankar Singh. While according to Amar Singh after six years of Ratan Singh's death, Godawari Bai left the village with all her three children including Ramsingh, Pahalwan Singh (PW/4) admitted in his cross-examination that Godawari Bai has been kept by Ratan Singh, which means that she was not married wife of Ratan Singh. He has further admitted that she was fourth wife of Ratan Singh. Therefore, it is an admitted fact by witnesses of both the sides that Godawari Bai was not legally wedded wife of Ratan Singh. 12. Gulab Singh (PW/1) in his cross-examination has also admitted that Shankar Singh has fostered Ram Singh under the writing i.e. Will (Ex. D/17). 13. Godawari Bai (PW/2) in her examination-in-chief has avoided to mention the fact that how she became the wife of Ratan Singh? In para 3, she has only stated that during lifetime of Ratan Singh, she was living with him and serving him. At the time of evidence, in the affidavit she has mentioned Ratan Singh as her husband. It is an undisputed fact that she married to Kanhaiyalal and he was his last husband. Further during evidence nothing has been mentioned by her about her first husband Hazari Lodhi. In her examination -in-chief she has also admitted that in the voter list and ration card, her husband's name has been mentioned as Kanhaiyalal. She has also admitted that Ratan Singh was suffering from Cancer of throat due to which bad smell was experienced while sitting near him. 14. In her examination -in-chief she has also admitted that in the voter list and ration card, her husband's name has been mentioned as Kanhaiyalal. She has also admitted that Ratan Singh was suffering from Cancer of throat due to which bad smell was experienced while sitting near him. 14. Therefore, considering the above facts, the finding of learned lower appellate Court by stretching the evidence with imagination regarding custom of second marriage etc cannot be said to be legal without there being any evidence in support. The marriage of Godawari Bai with Kanhaiyalal took place during the lifetime of Ratan Singh and Plaintiffs-respondents No. 2 and 3 Usha Bai and Gulab Singh are children of Kanhaiyalal and Godawari Bai. Since at the time of marriage of Godawari Bai with Kanhaiyalal, she was not widow of Ratan Singh, therefore, it cannot be held that she was enjoying the status of widow of Ratan Singh at the time of her marriage with Kanhaiyalal. 15. Learned counsel for the appellant has submitted that the property of Ratan Singh has been inherited by Ram Singh on the basis of Will (Ex. D/17). In support of his this argument, he has drawn attention of this Court towards the Hindu Widow's Remarriage (Repeal) Act, 1983 by which the Hindu Widows Remarriage Act, 1856 has been repealed. Learned counsel for the appellant has cited the judgment of this Court in the case of Tatu Vs. Ful Bai, 1990 (II) MPWN 85 in which it has been held that widow inheriting estate of husband under Section 14 of Hindu Succession Act, 1956, her remarriage thereafter does not divest her of that property. It has also been held that inheritance by widow to her husband's property, widow should be chaste at the time of husband's death, subsequent unchastity not relevant. It means that she must have the status of wife till the death of husband. 16. Learned counsel for the appellant has also cited the judgment of this Court in the case of Khumna and another Vs. Govind Das and others, 2000 (II) MPJR 599 in which it has been held that if a widow remarrying before 1956, her rights in the property of her late husband ceases and as per the law already settled by Supreme Court, any question relating to such legal point cannot be termed as substantial question of law. Govind Das and others, 2000 (II) MPJR 599 in which it has been held that if a widow remarrying before 1956, her rights in the property of her late husband ceases and as per the law already settled by Supreme Court, any question relating to such legal point cannot be termed as substantial question of law. Learned counsel for the appellant has also cited judgment of this Court in the case of Ramkali and another vs. Mahila Shyamwati and others, 2000 (3) MPLJ 361 in which it has been held that "widow" means and implies "female" who was united in marriage recognised by law and and who survives husband without remarriage. This also means that if a wife remarriages during lifetime of her husband, she cannot be treated as widow of earlier husband on his death. Learned counsel for the appellant has also cited the judgment of this Court in the matter of Punna Chammar and others vs. Baldua and others, 2005 (2) MPLJ 146 , in which it has been held that under Section 2 of Hindu Widows' Remarriage Act, 1856 second marriage by Hindu widow forfeits interest taken by her in her husband's estate and her right passes to the next heir of her husband as if she was dead. 17. On the other hand, learned counsel for the respondents has submitted that Godawari Bai inherited the property of her husband as absolute owner under the provision of Sections 14 and 15 of Hindu Succession Act, 1956 and learned lower appellate court has based its judgment on material available on record, therefore, view taken by the first appellate Court cannot be re-appreciated in second appeal. He has cited the judgment of Hon. Apex Court in the matter of Navaneethammal vs. Arjuna Chetty, AIR 1996 SC 3521 in support of his argument. 18. Learned lower appellate Court has based its finding with regard to the fact that Godawari was widow of Ratan Singh when she married Kanhaiyalal by overlooking the Will (Ex D/17) executed by Ratan Singh, which is a 30 years old document which mentions that Godawari Bai has left Ratan Singh during his lifetime before his death and she married Kanhaiyalal during his lifetime. Godawari Bai's marriage with Kanhaiyalal cannot be treated as illegal as held by learned lower appellate Court, because in the same manner she married Ratan Singh also, therefore, if the findings arrived at by the lower appellate Court on the basis of hypothetical or erroneous observation, it can be considered in second appeal and for arriving at such finding by learned lower appellate Court, there must be a clear finding that the finding arrived at by the trial Court was erroneous, but there is no such finding in the judgment of learned lower appellate Court that the findings arrived at by the trial Court were wrong or erroneous. 19. Since Godawari Bai married Kanhaiyalal before the death of her husband Ratan Singh, she was not widow of Ratan Singh at the time of her second marriage with Kanhaiyalal. She was never having status of widow of Ratan Singh, as before the death of Ratan Singh she had already married with Kanhaiyalal in the same manner as she married with Ratan Singh, therefore, she cannot claim any right in the property of Ratan Singh as widow of Ratan Singh. Further plaintiffs-respondents No. 2 and 3 Usha Bai and Gulab Singh are not children of Ratan Singh, therefore, they also have no right in the property of Ratan Singh. 20. Under these circumstances, the impugned judgment and decree passed by learned appellate Court is not sustainable in law on account of effect of Section 2 of Hindu Widow's Remarriage Act, 1956. Ratan Singh died after the marriage of Godawari Bai with Kanhaiyalal, therefore, finding of lower appellate Court in para 18 that Godawari Bai had made Kanhaiyalal as husband after death of Ratan Singh is also not sustainable, therefore, the substantial question of law is answered in favour of appellant-defendant. resultantly, the appeal is allowed. The impugned judgment and decree of learned lower appellate Court is set aside. Respondents 1 to 3 to bear the cost of their appeal as well as appellant-defendant. Counsel fee as per schedule if already certified.