1. This is a reference under the Kumaun Rules. The plaintiff brought a suit for a declaration relating to a certain deed of gift. It appears that Puran Singh died leaving him surviving a widow and a daughter and a daughter's son. The widow made a deed of gift in favour of her daughter and her daughter's son. The suit was for a declaration that this deed of gift was not binding upon the plaintiff (who alleged himself to be the nearest reversioner) and that he was the heir after the death of the widow. The defence was that the plaintiff was not entitled to maintain the suit, that after the death of the widow her daughter (who was a defendant to the suit) would be entitled to the property for her life and after the death of the daughter her son would be entitled, The plaintiff replied to this that there was a custom prevailing in Kumaun under which the daughter and daughter's son were excluded from inheritance. The Court of first instance decided that the custom set up by the plaintiff existed and granted the plaintiff a decree. The Deputy Commissioner held that there was not sufficient evidence to prove the existence of a custom, and that being so the ordinary rules of Hindu Law must prevail, in which case the daughter and daughter's son would succeed, and dismissed the plaintiff's suit. The learned Commissioner simply made a decree in favour of the plaintiff declaring that the gift to the grandson would not bind the plaintiff beyond the lifetime of the donor, the widow.
2. We have been asked by Government to advise as to the correctness of the decision of the learned Commissioner and say whether he should not have decided the issue of the existence of the custom, and further to give Government an expression of our opinion on the case in general.
3. Had the question arisen outside of Kumaun we think that the Commissioner was bound to have accepted the finding of the Deputy Commissioner that the custom did not exist. So far as this question was a question of fact the Deputy Commissioner was the Court to decide it. The Commissioner as the Court of second appeal could only interfere upon a question of law, and the only possible question of law which could have arisen was the question upon whom the onus lay, that is to say, whether in Kumaun it can be said that a general rule of law prevails excluding daughters and a daughter's son in such a way as would throw the onus on the defendants of showing that there was an exception in their case. We have no hesitation in saying that if the question had arisen outside Kumaun, the onus of proving a custom different from the ordinary Hindu Law would undoubtedly have lain on the plaintiff who came into Court on the basis of a custom of that description. The learned Commissioner has given a very guarded decree. He has only declared that the gift to Jaint Singh, that is the daughter's son, as a gift will not bind the plaintiff after the death of the donor. Even on the assumption that the ordinary rules of Hindu Law prevailed and governed the parties, such a decree might be granted as against the daughter's son as was done in the case of Raja Dei v. Umed Singh 13 Ind. Cas. 632 : 31 A. 207 : 9 A.L.J. 158. On the same assumption no decree can be given against the daughter, because she would be entitled under the ordinary Hindu Law to succeed on the death of her mother. We think therefore that we cannot say that the decree of the Commissioner was wrong. As to whether he ought or ought not to have decided the question of the existence of the custom is more difficult and raises a very important question in Kumaun. There seems to be little doubt that the custom of the exclusion from inheritance of daughters and daughter's sons does, at least to some extent, prevail in Kumaun, and having regard to the decree which the Commissioner made it was not strictly necessary for him to decide this issue, involving as it did a question of very great difficulty. We think under all the circumstances the decree of the Commissioner may be affirmed and we think that the parties ought to bear their own costs in all Courts.