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Ram Kishan and ors. Vs. Medh Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in1Ind.Cas.141
AppellantRam Kishan and ors.
RespondentMedh Singh
Excerpt:
hindu law - jat widow--karao marriage divests widow's estate by custom--evidence of custom--whether custom should be immemorial in the sense of english common law. - - first, that the plaintiff failed to establish by clear evidence that the property once vested in a jat widow would go but of her possession on her remarriage, and secondly that the court should have found that the advance was made in good faith, to meet a legal necessity......finding. but as the custom set up is a question of law, four objection have been taken to the finding on custom. the point that has been strenuously argued before me is to the effect that the finding to the existence of that custom is not based upon evidence which may be regarded as a satisfactory basis for that finding. in order to show what would be regarded as a satisfactory evidence for arriving at the conclusion that the custom contended for exists the learned advocate has referred to the following cases ramalakshmi ammal v. sivanatha peruml sethurayar 14 m.i.a. 570 at p. 585; 17 w.r. 553;12 b.l.r. 396, where their lordships said 'but it is the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is farther.....
Judgment:

Karamat Husain, J.

1. This was a suit by the next reversioner of one Bansi Jat for possession of the property which was mortgaged by the widow of Bansi on the 8th of August 1891 to the defendant No. 2 and the father of the defendants Nos. 3 to 5. In a suit on that mortgage the property was sold and purchased by the mortgagees. The plaintiff prayed to have it declared that the mortgage made by the widow was not binding on him. He also claimed immediate possession He alleged in the plaint that the widow had contracted a Karoo marriage in consequence of which, according to the custom prevailing in the family of the plaintiff she was divested of the property which she had inherited from her first husband. The Court of First Instance granted the prayer for declaration but rejected that for immediate possession. The Court of first appeal granted the prayer for immediate possession an disallowed that for declaration holding that it was barred by time. The defendants came in second appeal to this Court on two grounds:

First, that the plaintiff failed to establish by clear evidence that the property once vested in a Jat widow would go but of her possession on her remarriage, and

Secondly that the Court should have found that the advance was made in good faith, to meet a legal necessity. I, by my order dated the 20th June 1908, referred two issues to the court below for trial. They were:

1 Is there a custom among the Jats in the village that a widow on contracting a Karao marriage is divested of the property inherited by her from her husband.2.Did the defendants-appellants advance the money after making proper enquiry that the money was required for a legal necessity.

2. The lower appellate Court has returned its findings on both the points. Its finding on the first point is follows:

3. 'I, therefore, find that a custom divesting the widow of her first husband's estate on her remarriage is proved '. On the second point it finds that there is no proof that the defendants-appellants made any enquiry as to the necessity be fore giving the loan.' No objection is taken to the second finding. But as the custom set up is a question of law, four objection have been taken to the finding on custom. The point that has been strenuously argued before me is to the effect that the finding to the existence of that custom is not based upon evidence which may be regarded as a satisfactory basis for that finding. In order to show what would be regarded as a satisfactory evidence for arriving at the conclusion that the custom contended for exists the learned Advocate has referred to the following cases Ramalakshmi Ammal v. Sivanatha Peruml Sethurayar 14 M.I.A. 570 at p. 585; 17 W.R. 553;12 B.L.R. 396, where their Lordships said 'but it is the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable and it is farther essential that they should be established by clear and unambiguous evidence' Bhagwandas Tejmal v. Rajmal 10 B.H.C.R. 241. at pp. 260, 261, where the learned Judges say 'we would also express our adherence to the following remarks made in Narayan Babaji v. Nana Manohar 7 B.H.C.B. 153 which was a suit between Hindus. If any person shall aver a custom to the contrary (of the general rule of Hindu Law in this presidency with respect to any particular kind of property the burden of proof of such custom lies upon him, and ample and satisfactory evidence is necessary before the Court ought to admit, as established, any variation from the general rules of law regulating the devolution of property amongst Hindus'. References have also been made to Gopalayyan v. Raghupatiayyan 7 M.H.C.R. 250 at p. 254. There the learned Judges say 'the evidence should be such as to prove the uniformity, continuity of the usage and the conviction of those following it that they were acting in accordance with law, and this conviction must be inferred from the evidence'. With reference to the statement of the witnesses as to the concrete instances of that custom it has been argued by the learned Advocate that they are of recent dates and that all of them are not the cases which took place in the village Noorpore. The evidence of the witnesses in the present case to prove the existence of that custom has been believed by the lower Appellate Court, and I agree with it that it proves the custom in question. Din Dayal one of the witnesses says amongst us, Jats, the widow has a right in the property of the husband but the property is taken away after the karao. This custom exists from before and I have been noticing it since I could remember (apne yad se dekhta hun) 'Anant Ram another witness for the plaintiff says 'if any widow remarry by a karao marriage then she is divested of the property of her husband after the karao and so long as she does not remarry she continues to be the owner. This custom has prevailed in our village for a long time'. In the Wajib-ul-arz of that village for the year 1870 it is stated and the widow of a person who dies without issue is entitled to a life estate in the property of her husband provided she does not marry a second husband'. This to my mind is the record of a custom and the statements of the witnesses for the plaintiff go to show that the custom of the widow being divested of the property of her former husband is a part and parcel of this custom. That being so, I am of opinion that the custom is proved by clear and unambiguous evidence and as the custom is in harmony with the Hindu sentiments about domestic relations, the evidence adduced to support it is rightly believed by the lower Appellate Court. In this view of the case the objections taken by the learned Advocate to the concrete instances of that custom carry no weight. The contention that those individual instances go to show that the custom is not an ancient one has no force. In the first place the evidence of Din Dayal and Anant Ram proves that the custom is an ancient one. Moreover it has been field in Lakhraj Bharthi v. Aurudh Tiwari and others 26 A.W.N. 80 that in order that a custom of pre-emption may be held to be established it is not necessary to show that the custom is immemorial in the sense of the English Common Law'. It has, however, been contended by the learned Advocate that this ruling has no application to such customs as modify any rule of Hindu law of inheritance or succession. Such a custom in order to be binding should, according to the remarks of their Lordships of the Privy Council in Ramalakshmi Ammal 14 M.I.A. 570 at p. 585; 17 W.R. 553;12 B.L.R. 396, be ancient. With reference to the ruling in Lakhraj Bharthi v. Aurudh Tiwari and others 26 A.W.N. 80 I am unable to draw any line of distinction between various kinds of custom and to hold that a custom of pre-emption need not be immemorial while a custom divesting a Hindu widow of the estate of her former husband on her remarriage should be established to be immemorial in the sense of the English common law. The result is that I agree with the learned additional Judge in holding that the custom divesting the widow of her first husband's estate on her remarriage is proved by clear and satisfactory evidence. I, therefore, dismiss the appeal with cost including fees in this Court on the higher scale.


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