Thakur Gokalchand Vs. Parvin Kumari
[1952] INSC 29 (16 May 1952)
FAZAL ALI, SAIYID BOSE, VIVIAN
CITATION: 1952 AIR 231 1952 SCR 825
CITATOR INFO :
R 1971 SC1398 (6) RF 1991 SC1654 (15,35)
ACT:
Punjab custom--Principles to be observed in
dealing with customary law stated--Essentials of valid custom.
HEADNOTE:
The plaintiff, a Rajput belonging to Tehsil
Garhshankar in the District of Hoshiarpur (Punjab), instituted a suit against
the defendant for the recovery of the properties which belonged to a deceased
Gurkha woman R and which she had acquired by way of gift from a stranger,
alleging that he was the lawfully wedded husband of Rand that according to
custom which applied to the parties with regard to succession he was entitled
to succeed to the moveable and immoveable properties of R in preference to the
defendant who was his daughter by R. Held, that even if it be assumed that R
was lawfully married to the plaintiff, the question to be decided would be
whether succession to property which R had received as a gilt from a stranger
and which she owned in her own right would be governed by the custom governing
her husband's family and not her own. Such marriage as was alleged to have been
contracted by the plaintiff being evidently an act of rare occurrence, the rule
of succession set up by the plaintiff cannot be said to derive its force from
long usage and the plaintiff was not, in any event, entitled to succeed.
Their Lordships laid down the general
principles which should be kept in view in dealing with questions of customary
law as follows:
(1) It should be recognised that many of the
agricultural tribes in the Punjab are governed by a variety of customs, which
depart from the ordinary rules of Hindu and Muhammadan law, in regard to
inheritance and other matters mentioned in section 5 of the Punjab Laws Act,
1872.
(2) In spite of the above fact, there is no
presumption that a particular person or class of persons is governed by custom,
and a party who is alleged to be governed by customary law must prove that he
is so governed and must also prove the existence of the custom set up by him.
(See Daya Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410;
Abdul Hussein Khan v. Bibi Song Dero, L.R. 45
I.A. 10).
(3) A custom, in order to be binding, must
derive its force from the fact that by long usage it has obtained the force of
law, but the English rule that "a CUstOm, in order that it may be legal
and binding, must have been used so long that the memory of man runneth not to
the contrary" should not be strictly 826 applied to Indian conditions. All
that is necessary to prove is that the usage has been acted upon in practice
for such a long period and with such invariability as to show that it has, by
common consent, been submitted to as the established governing rule of a
particular locality. (See Mt. Subhani v.
Nawab, A.I.R. 1941 P.C. 21 at 32).
(4) A custom may be proved by general evidence
as to its existence by members of the tube or family who would naturally be
cognizant of its existence and its exercise without controversy, and such
evidence may be safely acted on when it is supported by a public record of
custom such as the Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v. Mt.
Channi Bibi, A.I.R. 1925P.C. 267 at 271).
(5) No statutory presumption attaches to the
contents of a Riwaj-i-am or similar compilation, but being a public record
prepared by a public officer in the discharge of his duties under Government
rules, the statements to be found therein in support of custom are admissible
to prove facts recited therein and will generally be regarded as a strong piece
of evidence of the custom. The entries in the Riwaj-i-am may however be proved
to be incorrect, and the quantum of evidence required for the purpose of
rebutting them will vary with the circumstances each case. The presumption of
correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it
affects adversely the rights of females or any other class of persons who had
no opportunity of appearing before the revenue authorities. (See Beg v.
Allah Ditta, A.I.R. 1916 P.C. 129 at 131
;Saleh Mohammad v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v. Nawab,
A.I.R. 1941 P.C. 21 at 25).
(6)When the question of custom applicable to
an agriculturist is raised, it is open to a party who denies the application
custom to show that the person who claims to be governed by it has completely
and permanently drifted away from agriculture and agricultural associations and
settled for good in urban life and adopted trade, service, etc., as his
principal occupation and means and source of livelihood, and does not follow
other customs applicable to agriculturists.
(See Muhammad Hayat Khan v. Sandhe Khan and
Others, 55 P.R.
(1906) 270 at 274; Muzaffar Muhammad v. Imam
Din, I.L.R.
(1928) 9 Lab. 120, 125).
(7) The opinions expressed by the compiler of
a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and
investigation of the subject, are entitled to weight which will vary with the
circumstances of each case. The only safe rule to be laid down with regard to
the weight to be attached to the compiler's remarks is that if they represent
his personal opinion or bias and detract from the record of long standing
custom, they will not be sufficient to displace the custom, but if they are the
result of his inquiry and investigation as to the scope of the 827
applicability of the custom and any special sense in which the exponents of the
custom expressed themselves in regard to it, such remarks should be given due
weight. (See Narain Singh v. Mr. Basant Kaur A.I.R. 1935 Lah. 419 at 421,422;
Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 98S;
Khedam Hussain v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79).
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 158 of 1951. Appeal from the judgment and decree dated 24th March, 1948, of
the High Court of Punjab at Simla (Teja Singh and Khosla JJ.) in Regular First
Appeal No. 133 of 1945 arising out of judgment and decree dated 25th November,
1944, of the Court of the Senior Subordinate Judge, Kangra, at Dharmsala in
Suit No. 86 of 1,943.
Daryadatta Chawla for the appellant.
Gurbachan Singh (Jindra Lat, with him) for the
respondent.
1952. May 16. The Judgment of the Court was
delivered by FAZL ALl J.--This is an appeal against the judgment and decree of
the High Court of Punjab at Simla reversing the judgment and decree of the
Senior Subordinate Judge of Kangra in a suit instituted by the appellant for a
declaration that he was the sole lawful heir of one Musammat Ram Piari, whom he
alleged to be his wife, and as such was entitled to the properties left by her,
and for possession of those properties. The suit was instituted against 2
persons, namely, Parvin Kumari, who was alleged to be the daughter of the
plaintiff by Ram Piari, and Shrimati Raj Kumari, who were respectively
impleaded as defendants Nos. 1 and 2.
The case of the plaintiff as set out in the
plaint was that he was married to Ram Piari, the daughter of an employee of Raj
Kumari (defendant No. 2) about 22 years before the institution of the suit,
that after marriage she lived with him at Hoshiarpur and gave birth to a
daughter, Parvin Kumari (defendant No. 1), on the 4th March, 1929, and that Ram
Piari died in 828 April, 1941, leaving both movable and immovable properties
which she had acquired in her own name with the aid of his money and which had
been taken possession of by Raj Kumari.
He further alleged that he was a Rajput by
caste belonging to tehsil Garhshankar in the district of Hoshiarpur, and was
governed by custom in matters of succession, and, according to that custom, he,
as the husband of the deceased Ram Piari, was entitled to the movable and
immovable properties left by her to the exclusion of Parvin Kumari, her
daughter.The suit was contested by both Parvin Kumari and Raj Kumari, and both
of them denied that the appellant had been married to Ram Piari. Their case was
that the properties in suit were acquired by Raj Kumari with her own money for
Ram Piari, that the latter had made a will bequeathing them to her daughter,
Parvin Kumari, that the appellant was not governed by custom, and that in any
event the alleged custom could not apply to the personal and self-. acquired
property of Ram Piari, As regards 2 cars which were also included in the list
of properties claimed in the plaint, the case of Raj Kumari was that they
belonged to her and that the deceased was only a benamidar.
The trial court decreed the plaintiff's suit
with respect to all the properties excepting the 2 cars which were held to
belong to Raj Kumari. The court held that Ram Piari was the legally married
Wife of the appellant, that he was governed by customary law applicable to
Rajputs of Hoshiarpur district in matters of succession, and that according to
that customary law he was the preferential heir to the estate of Ram Piari. The
court further held that the will of Ram Piari was invalid as she had no power
under the customary law to make a will.
Both the defendants appealed to the High
Court against the judgment of the trial court, and the appeal was ultimately
allowed and the plaintiffs suit was dismissed. The High Court held that though
there 829 was evidence of long cohabitation of the plaintiff and Ram Piari
giving rise to a presumption of marriage, yet that presumption had been
completely rebutted and the proper conclusion to be arrived at on the evidence
on record was that the plaintiff had not been able to prove that Ram Piari was
his lawfully wedded wife. As to custom, the findings of the High Court were as
follows :-(1) that the appellant belonged to an agricultural tribe of
Hoshiarpur district and was therefore governed by the custom prevailing among
the Rajputs of that district;
(2) that there was no local or general custom
allowing the plaintiff to succeed in preference to the daughter to the property
left by Ram Piari which had been given to her by a stranger, namely, Raj
Kumari, and (3) that the parties were governed by Hindu law under which Parvin
Kumari being the daughter of Ram Piari was entitled to succeed to the
properties left by the latter in preference to the plaintiff.
Against the decision of the High Court, the
plaintiff has now preferred this appeal, after obtaining a certificate from the
High Court under sections 109 and 110 of the Code of Civil Procedure.
The first question which arises in this
appeal is whether the plaintiff has succeeded in proving that Ram Piari was his
legally wedded wife. The plaintiff was admittedly employed as a copyist in the
District Judge's court at Hoshiarpur and was living in that town. His case was
that he gained the acquaintance of Raj Kumari (defendant No. 2), a wealthy lady
of Kangra district who owned a tea estate in tehsil Palampur and occasionally
visited Hoshiarpur, and through her good offices was married to Ram Piari, who
was the daughter of one Chandar Bit, an employee of Raj Kumari working in her
tea estate. After marriage, Ram Piari lived with the plaintiff at Hoshiarpur as
his lawfully wedded wife, and a daughter, Parvin Kumari, (also called Usha
Rani) was born to 830 them on the 4th March, 1929. Raj Kumari had great
attachment to wards Ram Piari and often used to pay visits to Hoshiarpur to
meet her. In the year 1934-35 (no date is mentioned in the plaint; but this
year is mentioned in the plaintiff's evidence), Raj Kumari took Ram Piari from
the plaintiff's house with belongings of every description on the pretext of
taking her out for recreation. Ram Piari did not like going round with Raj
Kumari and though she wanted to come back to the plaintiff she had not the
courage to disobey Raj Kumari, and in fact Ram Piari and' Raj Kumari inwardly
hated one another during the last years of the former's life. In the year 1941,
Ram Piari died at Mayo Hospital at Lahore, leaving the properties in dispute
which had been acquired by her by good management with the plaintiff's own
money.
As against this version of the. plaintiff,
the case of Raj Kumari was that Ram Piari had been enticed away by a motor
driver sometime in 1921, that she returned to Holta estate after about 11 years
with Parvin Kumari who was then about 3 years old, and after her return both
she and her daughter remained with her (Raj Kumari) till Ram Piari died in
1941. Raj Kumari, being a widow, felt very lonely and so brought up Ram Piari
as a companion and all the properties in dispute had been acquired by her with
her own money for the benefit of Ram Piari Parvin Kumari had been educated and
brought up at her expense, and it was entirely false that she and Ram Piari
inwardly hated each other, the truth being that they liked and were attached to
each other.
The evidence adduced by the plaintiff to
prove that Ram Piari was his lawfully wedded wife consists partly of the
evidence of a number of witnesses and partly of circumstantial evidence. The
direct evidence of marriage is furnished by Babu Ram, P. W. 7, Anant Ram, P.W.
11, Babu, P.W. 12, and Asa Ram, P.W. 13. Babu Ram claims to be the family
priest and alleges to have officiated as priest at the time of the plaintiff's
marriage, Anant Ram and Asa Ram are 831 jaswal Rajputs residing in village
Bham, which is near the plaintiff's village, Ajnoha, and Babu is a barber. These
four persons have said that they accompanied the marriage party and that the
marriage of the plaintiff with Ram Piari was celebrated in their presence. The
evidence of the other witnesses and the circumstantial evidence upon which reliance
has been placed by the plaintiff have been summarized by the learned
Subordinate Judge in his judgment in these words :-"P. W. 5 Mukhi Ram is a
Municipal Commissioner at Hoshiarpur. P.W. 4 Doctor Shadi Lal is a leading
Medical Practitioner of Hoshiarpur. P.W. 9 Lala Sham Lal and P.W. 10 Lala Har
Narain have been co-employees with the plaintiff in the same office; though
these persons (except P.W. 9) have no social relations with the plaintiff and
his family, yet they have been seeing Ram Piari living with plaintiff as his
wife. She was proclaimed as such by the plaintiff and both of them were treated
as husband and wife by the people of the Mohalla and by the brotherhood in the
village of plaintiff. Exhibits P-18 and P-19 show that defendant No. 2 has been
addressing Ram Piari, care of plaintiff in 1932 and has been receiving
correspondence, care of the plaintiff which shows that she approved of the
plaintiff's alliance with Ram Piari ...... Paras Ram, a younger brother of Ram
Piari, lived in the house of Gokal Chand and it is in evidence that he used to
address the plaintiff as jija--a common name for sister's husband. From 1930 to
1934 Paras Ram read in the D.A.V. High School at Hoshiarpur and Exhibits P.W.
6/1 to 6 are copies of entries in the registers of the school regarding
applications which were given by Gokal Chand, plaintiff, for admission of his
ward Paras Ram, son of Chandar Bit who was described as his sala (wife's
brother). P.W. 6 Lala Bishan Das, teacher, has filed these copies. His sister's
house was adjacent to the house of the plaintiff and he had occasions to see
Ram Piari living and being treated as wife by the plaintiff during those
years." 108 832 Upon the evidence to which reference has been made, the
trial court came.to the conclusion that Ram Piari was the legally married wife
of the appellant.
The learned judges of the High Court however
found the evidence of the 4 witnesses who claimed to have been present at the
marriage of the plaintiff to be quite unconvincing, and they pointed out that
the case of the plaintiff being that his marriage had been performed with great
pomp and show, it was surprising that the evidence relating to it should be
confined to 4 persons one of whom appeared to be a hired witness' and the other
3 were interested persons.
As to the evidence of the 4 persons who claim
to have been present at the plaintiff's marriage, we find ourselves in
agreement with the view taken by the High Court. The evidence of the other
witnesses undoubtedly establishes the fact that for some years the plaintiff
and Ram Piari lived together as husband and wife and were treated as such, that
Paras Ram, brother of Ram Piari, addressed the plaintiff as jija (a common name
for sister's husband), and that the plaintiff acted as Paras Ram's guardian
when the latter was admitted to D.A.V. School and was described as his brotherin-law
in some of the entries in the school register. The learned Judges of the High
Court considered that the evidence of certain witnesses who deposed to some of the
facts on which the lower court relied, did not strictly comply with the
requirements of section 50 of the Indian Evidence Act,firstly because the
witnesses had no special means of knowledge on the subject of relationship
between the plaintiff and Ram Piari, and secondly because what section 50 made
relevant was not mere opinion but opinion "expressed by conduct" of
persons who as members of the family or otherwise, had special means of
knowledge. It seems to us that the question as to how far the evidence of those
particular witnesses is relevant under section 50 is academic, because it is
well-settled that continuous cohabitation for a number of years may raise the
presumption of marriage. In the present case, it seems clear that the plaintiff
and Ram Piari 833 lived and were treated as husband and wife for a number of
years, and, in the absence of any material pointing to the contrary conclusion
a presumption might have been drawn that they were lawfully married. But the
presumption which may be drawn from long cohabitation is rebuttable, and if
there are circumstances which weaken or destroy that presumption, the court
cannot ignore them. We agree with the learned Judges of the High Court that in
the present case, such circumstances are not wanting, and their cumulative
effect warrants the conclusion that the plaintiff has failed to prove the
factum of his marriage with Ram Piari. In the first place, the plaintiff has
not examined any of his near relations such as his brother, or collaterals
living in Ajnoha, or any co-villagers, whose presence at the marriage would
have been far more probable than the presence of the witnesses examined by him.
He has also not examined any of the witnesses residing in or round about Holta
estate in spite of the fact that his own case is that the marriage was
celebrated with great pomp and show. It. was suggested in the courts below that
since defendant No. 2 is an influential person, no local witnesses would be
available to support the plaintiff's case, but the High Court has very fully
dealt with this aspect and pointed out firstly that Raj Kumari had litigation
with a number of persons belonging to Palampur and such persons would not be
under her influence, and secondly that no gold reason has been shown why Raj Kumari,
who is alleged to have brought about the marriage between the plaintiff and Ram
Hari, should take a completely hostile attitude towards him. Then again,
neither the parents nor any of the relations of Ram Piari have been examined to
support the plaintiff. On the other hand, Ram Hari's own mother, Ganga, has
deposed that the former was never married to the plaintiff, and the statement
made by Ram Piari in her will, which is a very valuable piece of evidence, is
to the same effect. It is also incredible that in spite of the love which Ram
Piari is said to have had for the plaintiff, she left him 834 and went away to
live with Raj Kumari, and that during the long period when Ram Piari was away,
the plaintiff should never have visited her or made enquiries about her and his
alleged daughter, Parvin Kumari. This is all the more strange, since it is
stated by the plaintiff that Ram Piari continued to love him and that she and
Raj Kumari inwardly hated each other. Parvin Kumari says in her deposition that
she had never seen her father and that when she reached the age of discretion
she found herself living at Palampur. The conduct of the plaintiff in showing
such complete indifference to his wife and daughter as is disclosed in his evidence
is most unnatural, and no less unnatural is his conduct in instituting a suit
to deprive her of properties which had come into her hands not by reason of
anything done by him but as a result of the generosity shown towards her by a
stranger. The plaintiff's case that the properties in dispute were acquired by
Ram Piari with the aid of his money is wholly untrue, and it has been rightly
found by both the courts that they were acquired for her by Raj Kumari. The
plaintiff's witnesses have tried to exaggerate his means to support his case,
but the truth appears to be that he had hardly any means of his own beyond the
somewhat meagre salary which he used to draw as a court typist.
Several of the witnesses including an
Advocate and Ram Piari's own mother have deposed that Ram Piari had eloped with
a driver and had remained away from Holta estate for a number of years. Even
the Subordinate Judge has not rejected the story of elopement, and though there
is no reliable evidence as to when and how she met the plaintiff, the possibility
of her having lived with him for some years even though they were not legally
married, cannot be ruled out.
The plaintiff claims to be a Rajput of high
caste, and it appears to us rather unusual that he should not marry in his own
tribe but should take in marriage a Gurkha girl who was born of very poor
parents and belonged to a place far away from where he himself lived.
835 The fact that Paras Ram lived with the
plaintiff for some time and addressed the latter as jija, and that the
plaintiff described himself as guardian and brother-in-law of Paras Ram, is as
consistent with the defence version as with the plaintiff's. If Paras Ram's
parents had been in affluent circumstances so as to be able to maintain and
educate him, the case would have been different, but there is evidence to show
that Chandar Bir was very poor and both his wife and daughter had to work as
servants of Raj Kumari to earn their living.
In our opinion, the conclusion arrived at by
the High Court has not been shown by the plaintiff to be incorrect, and
whatever the true facts may be, we are compelled to hold that in the present
state of evidence the plaintiff has not succeeded in establishing that Ram
Piari was his legally wedded wife.
In the view we have taken, it is not necessary
to deal with the question whether succession to the properties in dispute will
be governed by customary law or by Hindu law, but since it was argued before us
at very great length, we think that we might state the contentions of the
parties and the difficulties which in our opinion arise in dealing with those
contentions on the material before us. Before doing so, however, we wish to set
out briefly certain general principles which we think should be kept in view in
dealing with questions of customary law. They may be summarized as follows :-(1)
It should be recognized that many of the agricultural tribes in the Punjab are
governed by a variety of customs, which depart from the ordinary rules of Hindu
and Muhammadan law, in regard to inheritance and other matters mentioned in
section 5 of' the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no
presumption that a particular person or class of persons is governed by custom,
and a party who is alleged to be governed by customary law must prove that he
is so governed and must also prove the existence of the 836 custom set up by
him. See Daya Ram v. Sohel Singh and Others (1), Abdul Hussein Khan v. Bibi
Song Dero C).
(3) A custom, in order to be binding, must
derive its force from the fact that by long usage it has obtained the force of
law, but the English rule that "a custom, in order that it may be legal
and binding, must have been used so long that the memory of man runneth not to
the contrary" should not be strictly applied to Indian conditions. All
that is necessary to prove is that the usage has been acted upon in practice
for such a long period and with such invariability as to show that it has, by
common consent, been submitted to as the established governing rule of a
particular locality. See Mr. Subhani v. Nawab(3).
(4) A custom may be proved by general
evidence as to its existence by members of the tribe or family who would naturally
be cognizant of its existence and its exercise without controversy, and such
evidence may be safely acted on when it is supported by a public record of
custom such as the Riwaj-i-am or Manual of Customary Law. See Abroad Khan v. Mt.
Channi Bibi(4).
(5) No statutory presumption attaches to the
contents of a Riwaj-i-am or similar compilation, but being a public record
prepared by a public officer in the discharge of his duties under Government
rules, the statements to be found therein in support of custom are admissible
to prove facts recited therein and will generally be regarded as a strong piece
of evidence of the custom. The entries in the Riwaj-i-am may however be proved
to be incorrect, and the quantum of evidence required for the purpose of
rebutting them will vary with the circumstances of each case. The presumption
of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that
it affects adversely the rights of females or any other class of persons who
had no opportunity of appearing before the revenue authorities.
See Beg v. Allah Ditta (5), Saleh (1) 110
P.R. (1906) 390 at 410 (4) A.I.R. 1925 P.C. 267 at 271.
(2) LR. 45 I.A. 10. (5) A.I.R. 1916 P.C. 129
at 131.
(3) A.I.R. 1941 P.C. 21 at 32.
837 Mohammad v. Zawar Hussain(1);Mt. Subhani
v. Nawab(2).
(6) When the question of custom applicable to
an agriculturist is raised, it is open *to a party who denies the application
of custom to show that the person who claims to be governed by it has
completely and permanently drifted away from agriculture and agricultural
associations and settled for good in urban life and adopted trade, service,
etc., as his principal occupation and means and source of livelihood, and does
not follow other customs applicable to agriculturists. See Muhammad Hayat Khan v.
Sandhe Khan and Others(3), Muzaffar Muhammad v. Imam Din(4).
(7) The opinions expressed by the compiler of
a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and
investigation of the subject, are entitled to weight which will vary with the
circumstances of each case.
The only safe rule to be laid down with
regard to the weight to be attached to the compiler's remarks is that if they
represent his personal opinion or bias and detract from the record of
long-standing custom, they will not be sufficient to displace the custom, but
if they are the result of his inquiry and investigation as to the scope of the
applicability of the custom and any special sense in which the exponents of the
custom expressed themselves in regard to it, such remarks should be given due
weight. See Narain Singh v.
Mt. Basant Kaur(5), Mt. Chinto v. Thelur (6);
Khedam Hussain v. Mohammad Hussain(7).
Bearing these principles in mind, the
difficulty which appears to us to beset the case of the plaintiff may be
briefly stated as follows :The basis of the plaintiff's case is that the custom
by which he claims to be governed is a "zamindara custom" and he is
governed by it by reason of his belonging to a family of agriculturists. From
the evidence, however, it appears that he Had sold most, if not (1)A.I.R.1944
P.C.18. (5) A.I.R. 1935 Lab. 419 at 421, 422.
(2) A.I.R. 1941 P.C. 21 at 25. (6) A.I.R.
1985 Lah. 985.
(5)55 P.R. (1906) 270 at 274. (7) A.I.R. 1941
Lah. 73 at 79 (4) I.L.R. (1928) 9 Lah. 120, 125.
838 all, of his property in the village to
which he belonged, that his ancestors were bankers or sahukars, that his father
was a clerk of a lawyer practising in Hoshiarpur district and that he himself
was a clerk in the District Judge's court at Hoshiarpur and lived there, and
there is hardly any evidence to show that any of his relations was dependent on
agriculture or that he maintained connection with them. In our opinion. the
witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means
and have not given a correct picture on which the answer to the question as to
whether he would still be governed by the old custom would depend. Again,
though according to the answer to question 11 in the Riwaj-i-am of Hoshiarpur
district, the general custom governing the Rajputs of that district would seem
to be that a marriage within the tribe only is lawful, the plaintiff did not
marry a Rajput of his district but is said to have married a Gurkha woman,
about whose caste and character the evidence is conflicting, and whose family
was admittedly not governed by the "Riwaj-iam" upon which the
plaintiff relies. If both the husband and the wife are shown to belong to the
same tribe and to be governed by the same custom, then the difficulty in deciding
what would be the rule of succession on the death of the wife in regard to the
wife's self-acquired property may not be very great. But even if it be assumed
that Ram Piari was lawfully married to the plaintiff, the serious question to
be decided would be whether succession to the property which Ram Piari received
as gift from a stranger and which she owned in her own right, would be governed
by the custom governing her husband's family and not her own. Such marriage as
is said to have been contracted by the plaintiff being evidently an event of
rare occurrence, the rule of succession set up by him cannot be said to derive
its force from long usage. As we have pointed out, a custom in order to be
binding must derive its force from the fact that by long usage it has obtained
the force of law; and if an Occasion never arose to apply the rule of
succession 839 invoked by the plaintiff, to the property held by a wife in her
own right, the foundation on which custom grows would be wanting. When the
matter is further probed, it appears that the plaintiff relies not only on
custom but partly on custom 'and partly on the rule of Hindu law, namely, that
the law which governs the husband will govern the wife also.
Whether the latter rule can be extended to a
case like the present is a question of some difficulty, on which, as at present
advised, we would reserve our opinion. In the circumstances. we prefer to leave
the issue of custom undecided. and base our decision on the sole ground, which
by itself is sufficient to conclude the appeal, that the plaintiff's marriage
with Ram Piari has not been clearly established.
The appeal therefore fails and it is
dismissed. but in the circumstances of the case and particularly since the
appellant has appealed in forma pauperis, we direct that the parties will bear
their own costs in all the courts.
Appeal dismissed.
Agent for the appellant: S.D. Sekhri.
Agent for the respondent: Naunit Lal.
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