1. The question in dispute in this second appeal is one of the right of succession to the estate of a Hindu child widow who died at the age of nine years on July 9, 1913, and without issue. She belonged to the Kadwa Kunbi caste and had been married as a child to the plaintiff in the suit. Her father predeceased her leaving no male issue, and consequently she succeeded to his property.
2. But a question that has arisen on her death is, does this property go to the plaintiff as the heir of his deceased wife Kamla, or does the property pass to her own blood relations on her father's side It common ground that under ordinary Hindu law the plaintiff would take as her husband, but a special custom is set up by the defendant who claims to be her heir on her father's side, that in this particular caste where a married woman dies under such circumstances without issue, the property reverts to her father's family and does not pass to her husband, The onus of proving such a custom, being as it is a departure from the ordinary Hindu law which would otherwise govern the parties, rests clearly on the person who alleges it, viz., the defendant. Moreover, it is equally well-established that in order to prove such a custom, it must be shown to be ancient and invariable, and also be such that there is nothing unreasonable or contrary to public policy in the Court giving effect to it.
3. Both the Judges in the lower Courts were members of the Hindu community, and in the trial Court the learned Extra Joint Subordinate Judge dealt at great length and with great care with the voluminous evidence that was brought before him. I appreciate to the full the following observation he has made, viz.: ' The evidence is voluminous and rather likely to hypnotise and be tedious and monotonous, as it involves a detailed investigation of the devolution of property in this community which is by no means an insignificant proportion in this province. There is considerable risk of confusion.' I also in similar cases of custom have felt as a trial Judge the ' difficulty of giving to others a clear analysis of the evidence put before the Court. But the judgment of the learned trial Judge appears to me to be particularly lucid in this case. He has given us summaries of the various instances. He has given us certain cross reference to show from which particular town or district the various witnesses come He has also divided up the evidence into two main portions, viz. , one summary which relates to property which the girl inherited from her father, and another summary which related to cases where the girl was given presents of ornaments and clothes by her father or relations in her lifetime and where those ornaments and clothes or some portion of them went on her death not to her husband, but to her father or her relations in her father's family.
4. Then the learned Judge has also analysed the evidence in another way. There was also a large body of general evidence adduced by leading citizens in this particular caste whom the learned Judge particularises and shows to be men whose respectability and reliability cannot be impeached. The witnesses are very numerous and amongst them was one of the learned Judge's own Subordinate Judges. But the trial Judge has recognised that merely a general statement by members of the caste, unaccompanied by positive instances in which the alleged custom was actually exercised, would be by itself insufficient. Accordingly he has dealt with the instances in the two main divisions I have mentioned, viz., the one where the girl inherited property from her father, and the other where the property merely consisted of ornaments and clothes which had been given to her by her father or relations.
5. The former class is naturally much more important, because after all as regards ornaments and clothes, particularly in the case of one who dies as a mere child, it may very well be that the child husband or the adult husband, would not necessarily claim those articles, but might allow the girl's own relatives to retain them. But as regards the succession to the property itself, that stands on a different, footing. The learned Judge very rightly attaches more importance to that body of evidence than to the corresponding evidence about the ornaments. As regards the instances under the first branch, the learned Judge found that some seven in all were proved to his satisfaction out of some thirty or forty which were placed before him. Before us, counsel for the appellant has based his main contention on this, that seven instances are not enough to prove a custom, and, secondly, that the instances given are of too recent a date to justify the Court in arriving at the conclusion that the custom is an ancient one. That of those seven, some four were only two to nine years before the date when the suit was brought in 1916, and that only the remaining three are about twenty-five years old. In support of that proposition Bhagvandas Tejtmal v. Rajmal (1873) 10 B. H. C. R. 241 was relied on. That was a case of adoption amongst Jains and as to whether a certain custom was or was not proved. The Court, after pointing out that there were no men of learning and no books of the sect in support of the alleged custom, proceeded as follows : ' There are, in the whole body of evidence to which our attention has been directed, only four specified instances of such adoption, and of these the most ancient is one which occurred about twenty-two years ago, and one of the four breaks down, inasmuch as the widow of the adoptive father was living when the adoption is alleged to have taken place.' That was a case that related to the adoption of an orphan.
6. It is accordingly said that there are only seven cases here, and therefore on the authority o4f Bhayvandas Tejmal v. Rajmal (1873) 10 B. H. C. R. 241 the present evidence is insufficient. But it must be borne in mind that in addition to what I will call the general body of evidence in this case there was a large amount of evidence on the second branch of the case, and a large number of instances there were given with reference to the ornaments and clothes. Therefore, quite apart from the fact that the number of instances here were nearly double those in the case cited, we have other instances as regards ornaments and clothes.
7. Moreover, we have to consider the likelihood of there being any large number of these cases happening. Before it could happen, one must first of all have a father who dies without male issue and his daughter succeeding to his property. Then next you must find that the daughter in her turn dies without issue. We are told that this caste has very largely increased in numbers in recent years, but. I think the learned Judges in the Courts below are quite right in saying that these two contingencies which I have mentioned would be contingencies of a comparatively rare occurrence. So when you get the seven clearly proved instances, to say nothing of the numerous instances as regards the ornaments and clothes, that seems to me to be a body of evidence which would in law justify the learned Judges in arriving at the conclusion which they did.
8. I do not overlook the fact that the learned appellate Judge differed somewhat in the instances which he held proved. But in the result he arrived at the same number of instance;-) as did the trial Judge in the lower Court. The following instances were held proved, viz., Nos. 30, 32A, 11, 46, 47, 83 and 84. One other instance relied on in the trial Court would seem probably the same as the one already dealt with by the appellate Court, viz. , instances Nos. 78 and 83. So, too, there was one instance which the appellate Court rejected, viz., No. 14, which is the same as instance No. 25. The learned appellate Judge did not deal with instance No. 15, but that was an instance which the trial Judge thought was a doubtful one, though he was prepared to accept it.
9. I have also not overlooked the fact that the lower appellate Court did not go specifically into the instances relied on by the trial Court with regard to the ornaments and clothes But the general nature of the judgment of the lower appellate Court must I think be taken to signify that the appellate Court saw no reason to differ from the conclusions of the trial Judge in this respect.
10. I should explain that we have not thought it necessary to call upon counsel for the defendant in the present case. It may be that if we had, he would have been able to urge upon us that in law some instances which were rejected by the lower Court ought to have been really accepted. But as to that I feel strongly the limitations under which we must hear this case in the appellate Court. Objections based on the ground of insufficient evidence, or improper rejection of evidence, or as to the evidence taken as a whole amounting to insufficient proof in law of local custom, that we may properly go into. But whether a specified instance is properly proved or not, that I take it is a question of fact, the decision of which properly lies with the lower appellate Court and which at any rate under the normal circumstances governing our work here we should not inquire into but accept as accurate. And in a case with great mass of detail like the present, it is plain that if once the Court began investigating the detailed evidence as regards one particular instance, it would be difficult to resist applications to go into evidence in other instances.
11. The practice in this respect has recently been considered in Parshotam v. Venirchand (1930) 23 Bom L. R. 227 -another case of an adoption amongst Jains. There the Court dealt with the description of evidence which might fairly be accepted in cases of this nature. The Chief Justice said (p. 232) :-
If, than, the evidence shows that for a certain number of year, and some cases appear to lay down as a useful guide a period of twenty years, there have been a number of instances in which the alleged custom has been recognized, the presumption arises that the parties concerned have acted in that manner, not from a desire to set up a new custom, but because they are acting in accordance with the tradition of immemorial usage.
12. Then at p. 235 Mr. Justice Fawcett said:-
In the case before us the two lower Courts have held the alleged custom permitting the adoption of orphans to be established as a valid one, The main question is whether there is sufficient ground for our interfering with this finding in second appeal. The Privy Council have more than once held that, whether a custom is proved, is mainly a question of fact...Accordingly in Kailash chandra Datta v. Padmakishore May I. L. R. (1917) Cal. 285 it was held, on a review of all the authorities, that the question whether the facts found in any given instance prove the existence of the essential attributes of the custom or usage is a question of law which might be discussed is second appeal, while the question whether such a state of facts has been proved by the evidence is merely a question of fact.
13. I respectfully adopt what the learned Judge states there He then proceeds to deal with the sort of evidence that one might fairly require, and how far back one might reasonably expect it to go. He states at p. 236:-
Similarly in the cases of Manohar Lal v. Banarsi Das I. L. R. (1907) All. 495 and Aaharjl Kunwar v. Rup Chand I. L. R. (1908) All. 197 where the custom of adoption of a married man was held established, the instances adduced do not appear from the judgment to have gone back beyond some thirty to thirty-five years In Chiman Lal v. Sari Chand I. L. R. (1913) Cal. 879 where the adoption of the plaintiff who was an orphan and married was held valid, the evidence is stated in their Lordships' judgment to be 'somewhat limited.' Halsbury's Laws of England, Vol. X, Article 442, at p. 234 says that as a general rule proof of the existence of the custom, as far back As living witnesses can remember, is treated, in the absence of any sufficient rebutting evidence, as proving the existence of the custom from time immemorial, and that evidence of the existence of the alleged custom for a period of twenty years may be sufficient to warrant a Court in finding as a fact the existence of the custom from time immemorial. A similar rule was applied to Hindu usages by Gray C. J. in a judgment delivered so long ago as 1831.
14. Then as regards the proper course to take in second appeals, I may refer to Bai Shirinbai v. Kharshedji I. L. R. (1896) 23 Bom. 430 which was a case of an alleged child marriage amongst Parsis. There Sir Charles Farran says at p. 487 :-
The difficulty in this case is to ascertain what the Parsi law on the subject of infant marriage is...In the present case, however, we are met by the finding of the lower Courts that there has grown up in India a custom amongst Parsis which validates and renders binding marriages between Parsis though contracted between children of tender age, and that that custom was in full force as a custom in 1869. Sitting as we are in second appeal we feel that it is not open to us to arrive at an independent finding as to whether the evidence establishes the existence of such a custom, as there is indisputably a large body of evidence upon the record in support of it.
15. I think the judgment which I have just cited shows what our proper course is, viz., that generally speaking we should not investigate the details of the evidence in support of the various instances, but should merely consider whether taken as a whole it is sufficient in law to support the custom alleged. That indeed is the course which counsel for the appellant quite properly has adopted before us. Some application was I think made to us to go into the details of evidence, but we did not see our way to comply with that request, even as regards instances which the lower appellate Court held to be proved.
16. Then as regards the question of the number of instances, I have already dealt with one answer that could be made to Bhagvandas Tejmal v. Rajmal (1873) 10 B. H. C. R 241 on the present materials As regards the antiquity of the various instances, similar observations to some degree apply. We have at any rate three instances going back over twenty-five years, In this respect I may refer to the Halai Memon case (Khatubai v. Mahomed Raji Abu (1917) 20 Bom. L. R. 389 which involved a question whether the Halai Memons of Porebunder who were Mahomedan converts had retained on their conversion the Hindu customs of succession, as is the case with the Khojas and Cutchi Memons, or whether, as was undoubtedly the case with the Halai Memons of Bombay, they had acquired the same rights of succession as ordinary Mahomedans. The exact point there turned on whether daughters were entitled to succeed along with their brothers, as is the case under the Koran, or whether as under Hindu law the daughters took no aliquot share but were only entitled to marriage expenses if still unmarried.
17. As far as Bombay Halai Memons were concerned, there was documentary evidence in the Probate and other records of this Court going back over hundred years to show that invariably in this city a Halai Memon's succession was an ordinary Mahomedan succession. But there was no documentary evidence like that as regards the Porebunder Memons, who were the subject of the suit. As regards the latter, the number of instances held proved by the trial Court were I think some sixteen or so out of the fifty tendered in support of a Hindu succession. In the appellate Court it was held that the number should be increased from sixteen to twenty-five. But the trial Court was pressed, as we have been pressed here, with the argument that the instances were not of sufficient antiquity to justify proof of the custom, and the trial Judge stated in Khatubai v. Mahomed Haji Abu (1917) 20 Bom. L. R. 389: at p, 310 'I have the following general criticisms to pass on the thirty-seven instances relied on by Mr, Setalvad In the first place, they are all recent or comparatively recent. Only four of them, viz., Nos. 25, 26, 36 and 39 are shown to be instances of deaths prior to 1900.' The date of the trial was 1917, and the evidence was almost entirely commission evidence, and thus there were only four instances shown older than say some seventeen years before the trial of the suit.
18. Moreover, the community there was a large one, and in as much as it was a question of the succession of daughters along with sons, it was a class of cases that must occur with great frequency, viz., in every one of the normal cases where a father leaves both sons and daughters, It was, therefore, a very different class of case from the present case, where the instances can at best be only occasional. In the Halai Memon case, I confess I was influenced by the argument as to want of antiquity taken with other circumstances, in coming to the conclusion that the custom had not been made out. But that decision was erroneous, for it was differed from in the appellate Court, and the decision of the appellate Court was afterwards confirmed by their lordships of the Privy Council.
19. So the argument that has been addressed to us by the appellant does not carry with it anything like the same force as it would do if it had come to me as a new point free from any past experience of my own. In my judgment if the High Court considered that merely four instances older than seventeen years were sufficient in the Halai Memon case, then the present three instances are amply sufficient in the present case.
20. Accordingly, in the view I take, the main arguments that have been presented to us by the appellant that the instances were insufficient and that they were not of sufficient antiquity, fall to the ground. Speaking generally, the litigants here have had the advantage of two careful judgments from learned Hindu Judges, who are particularly acquainted with matters affecting the Hindu community. Having read those judgments, I see no reason whatever to arrive at a different conclusion in second appeal from that which the lower appellate Court has arrived at.
21. I will only add in conclusion that, quite apart from the custom as to succession which I have dealt with, there was a totally different custom set up in the trial Court, viz., that the marriage of a child wife was not completed and was not legal until a certain ceremony called Chuda Vidhi had taken place. That custom was advanced by the defendant and if proved would have negatived the right of the plaintiff, for in that case the marriage would not have been validly completed. The learned trial Judge found that the custom was not proved, and there is no appeal to us as regards that finding. I may express a hops that if this case is reported on the question of the custom of this particular caste, it will not be overlooked that there is a careful and interesting judgment from the trial Judge oil this alleged custom of Chuda Vidhi. In the course of that, he discusses not only the alleged custom but enters at length into the details of the ceremonies of marriage in that caste and to some extent amongst Hindus generally. That particular judgment does not concern me as a judge in the present case, but an an individual, I have read it and read it with interest, and I hope others who take an interest in these points which are of so great importance to the large communities in this land, and which ought to be definitely and clearly settled, will also read it.
22. In the result, I would dismiss this appeal with costs,
23. I concur in dismissing the appeal with costs. The learned Judges in the two lower Courts have obviously borne in mind the recognised canons that govern the proof of a special custom, such as that set up in this case, and no error of law has in my opinion been established which would justify our interference in second appeal.
24. I endorse the remarks of my learned brother as regards the great care which the learned trial Judge has shown in dealing with the voluminous evidence, and it is apparent that he has adopted a proper standard of proof in regard to the instances adduced in support of the alleged custom. It does not necessarily follow that many of these instances, which he holds not satisfactorily proved, have not really occurred; and the mere fact that only seven have survived the tests that he submitted them to, does not involve the necessary consequence that there are only a few instances of the kind alleged which have really happened.
25. As regards the point that none of these instances go beyond some thirty or forty years, 1 agree with what my learned brother has said, and think that, in the circumstances which he has referred to, it is unlikely that documentary or other evidence of more ancient instances should be available in cases of this kind. I think the instances show sufficient ground for presuming that this is not a more custom or practice of recent date, but that it has thus come down from ancient times It also is a custom that obviously has a large amount of reason to support it. I think that the finding of the lower appeallate Court on this question of custom is one that must be accepted by us in second appeal, and that there is no legal ground for our refusing to do so.