1. This is a plaintiff's appeal arising out of a suit for pre-emption. The vendor was one Bhola Datt, son of Trilochan, born admittedly of a wedded wife of Triloehan. The vendee is a stranger to the family, and the plaintiff is Jai Datt, who is the son of Trilochan born of a dhanti woman. Both the plaintiff and the vendee are co-sharers on an equal footing, both apparently residing in the same village. The plaintiff claimed preference over the vendee on the ground that he was the brother of the vendor. The defendant in his written statement did not admit this fact and specifically pleaded that the plaintiff is not a legitimate son of Triloehan who belonged to a caste in which sons by a dhanti wife had no right of inheritances and that the plaintiff being the son of a dhanti wife could not claim kinship with the vendor. The trial Court framed an issue as to whether the plaintiff was a legitimate brother of the vendor and also as to whether, if not so, the plaintiff was entitled to claim pre-emption, being a relative of defendant 2 within three degrees. The Court also notes that the burden of proving this was on the plaintiff. The plaintiff neither went into the witness-box himself nor produced any witness to show either that he was the legitimate son of Triloehan born of a recognised wife, or that under the customary law he was entitled to preference on account of his being a brother though born of a dhanti wife. He merely produced copies of revenue papers showing that in the village Pajena his name was entered against the share apparently left by Triloehan in equal shares along with his other brothers. He however got certain facts elicited from the cross-examination of the defendant's witnesses on which reliance was placed. The defendant produced one Lachhimi Datt, about 68 years of age, who is a cousin of the vendor by relation.
2. This witness distinctly stated that Bhola Datt (vendor's) mother was the wedded wife and Jai Datt's mother was not a wedded wife, and stated that among his people sons from kept wives did not get a right in the ancestral property, but they can be given rights in the self-acquired property at the will of the father. He asserted that the status of his people was like that of high caste Brahmins and that these Tewaris were considered to be the descendants of Sah Chand Tewari. He further stated that Jai Datt acquired rights in some other villages by a will. The share in dispute is situated in village Pajena which appears to have been divided among the three sons equally in the lifetime of Trilochan. In cross-examination Lachmi Datt Tewari merely admitted that a deed of partition had been drawn up which had been prepared between the three brothers and that they got equal shares. Another witness for the defendant, namely, Bagh Singh stated that although he did not know where Jai Datt's mother came from, but he knew that she was a dhanti wife, and that Bhola Datt and others did not inter-dine with Jai Datt and that Bhola Datt was a high caste Brahmin Tewari. In cross-examination , he admitted that Trilochan had given equal shares to his three sons in village Pajena during his life time and that Trilochan had considered Jai Datt as his son and had treated him as such, and that others also had treated Jai Datt as the son of Trilochan. One of the witnesses for the plaintiff who was produced for another purpose admitted in cross-examination that Jai Datt was the son of a Dhanti wife, that his father Trilochan was a good high caste Brahmin, but he did not know whether dhanti wives' sons inherit amongst the Tewaris or not.
3. The learned Subordinate Judge has held that on this evidence it is not established that the plaintiff was the legitimate son of Trilochan and that in fact it is proved that he was the illegitimate son of Trilochan, and accordingly is not a brother or relation of Bhola Datt vendor, entitled to preference over the vendee. In appeal reliance is also placed on certain statements contained in Mr. Panna Lal's book on Kumaun local customs. It is a reprint of the report submitted by him to the Commissioner of the Kumaun Division. Mr. Panna Lal was employed as a special officer to make enquiries and report. The book as printed does not show that it has been accepted by Government as an authoritative collection of the local customs in Kumaun. At p. 2 of this book it is stated that sons by a woman kept as wife (whether married or not) inherit fully like legitimate sons-Standing by itself it would be too sweeping a statement. There is however an exception added that sons by dhanti, or other wives with whom no marriage ceremony has been gone through get no share in the inheritance in castes mentioned in list A. By implication it is argued that sons of dhanti or other wives with whom no marriage ceremony might have' been gone through would get shares in every other case. At p. 5 several kinds of conjugal relationships are mentioned which include a dhanti wife, i.e., the widow or the relinquished wife or another kept as a concubine, as well as a ploughman kept as a husband by a widow in her old home. At pp. 6 to 8 different forms of marriages, no less than 12 in number, are mentioned. Apparently this would indicate that these various forms of conjugal relationships are to be found in the Kumaun Division. It does not necessarily follow that all these forms of marriages would necessarily be allowed among all castes, much less among the high caste' Brahmins. Now list A contains a list of certain special sections of Brahmins, Kashatriyas and Vaishyas, among whom Tewaris, who are the legitimate descendants of Sah Chand Tewari, are also mentioned.
4. In the first place it would be difficult to accept this statement as any authoritative opinion that all classes of Brahmins-throughout the Kumaun Division, except the few groups mentioned in list A, are necessarily such, that all the twelve forms-of marriages are recognised among them and sons born of all such marriages are legitimate and inherit the estate of their fathers equally with sons born of legally wedded wives. No express distinction is drawn in the book between the hill families who have remained settled there for centuries and other Brahmin families who might have migrated from the plains and settled in Kumaun a few generations ago. Furthermore the statement if taken in its widest scope is in conflict with the opinion expressed by Stowell in his Manual of Land Tenures of the Kumaun Division (1907 Edition). At pp. 51 to 53 he has noted that the question of the right of illegitimate sons to inherit is a particularly vexed question,, and his conclusion at p. 52 is that
The children of a dhanti woman are admittedly illegitimate. This being so the normal trend of decisions is to apply the above mentioned rules of Hindu law regarding the higher castes without due consideration of the class of people to whom the rule is being applied.
5. At p. 53 some cases are quoted in which conflicting decisions were given; but the latest decision of 1894 was to the effect that the claims of sons of dhantis in the case of Brahmins cannot be allowed. Stowell's conclusion is:
It thus appears that there is no important variation in Kumaun of the normal Hindu law an respect of this custom. Genuine Brahmin and Rajput castes follow the regular custom whereby illegitimate sons have no claim upon their father's estate for anything more than maintenance.
6. It seems to us that the ordinary presumption in the case of high caste I Brahmins must be that they are governed i by the ordinary Hindu law in which sons born of kept mistresses are not considered legitimate. Any person who wishes to establish that such sons are legitimate must establish the particular custom at variance with the Hindu law. It is impossible to make a presumption that throughout the division of Kumaun all classes of Brahmins, except those in list A given in Mr. Panna Lal's book are governed by this peculiar custom which is repugnant to the Hindu law, as now in force in British India. There is a further difficulty in the way of the plaintiff. As already pointed out Lachhmi Datt Tewari has directly stated that Tewaris (and he claims to be a relative of Bhola Datt Tewari) are considered to be the descendants of Sah Chand Tewari. There is no reason to suppose that Trilochan was an illegitimate descendant of Sah 'Chand Tewari as there is no suggestion that his mother or any female ancestor was a dhanti woman. Thus Trilochan would come expressly within the list A given by Mr. Panna Lal as that includes all legitimate descendants of Sah Chand 'Tewari.
7. As to the circumstance that the plaintiff got a share in the villages belonging to Trilochan it must be remembered that so far as the village Pajena is concerned the division took place during the life-time of Trilochan which in itself might suggest that Trilochan might have feared that after his death Jai Datt might not get a share. As regards the other two villages Lachhmi Datt Tewari distinctly stated that they were the self-acquired property of Trilochan and a share in them had devolved on Jai Datt under his will and the partition took place in accordance with it. The circumstance that the plaintiff got shares in these villages does not therefore amount to much. The plaintiff also did not lead any evidence to show that a dhanti's son is regarded as a relative within the meaning' of the custom which entitles a relative to pre-empt as against a co-sharer who is not a relative. As Jai Datt is proved to be an illegitimate son of Trilochan we cannot presume that he is a relative of Bhola Datt so as to be entitled to pre-empt. The learned Counsel for the plaintiff appellant asks for a further opportunity to produce evidence on these points. On the pleadings the issue clearly arose, the Court framed such issues and noted that the burden of proof was on the plaintiff. The plaintiff had every opportunity of producing evidence on such issues and it would not be fair to the defendant vendee now to send this case back to the trial Court in order to give an additional opportunity to the. plaintiff for producing further evidence. We accordingly cannot grant this request We accept the finding of the lower Court and we dismiss this appeal with costs.