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Musammat Nihali Vs. Kanak Singh and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All310; 25Ind.Cas.617
AppellantMusammat Nihali
RespondentKanak Singh and anr.
Cases ReferredRam Kishan v. Medh Singh
Excerpt:
hindu law - jat widow--re-marriage, effect of--property of husband, 'whether divested--custom. - .....case related to a village the wajib-ul-arz of which laid down that a widow was entitled to her husband's property provided that she did not marry again. on that and other evidence the court held that the custom now in question had been proved. it is not suggested that the parties to that case are in any way connected with the parties to the present case. several wajib-ul-araiz have been produced in this case which lay down the custom in unmistakeable terms, but the wajib-ul-arz of the village in which the property in suit lies is silent as regards the custom and in the opinion of the courts below at least four instances are proved in which widows married again in this village and did not lose their husband's property. the waijb-ul-arz relied upon by the defendants relate to families.....
Judgment:

Chamier, J.

1. The only question in this appeal is whether the marriage of a Jat widow named Amin Koer divested her of her interest in the property of her first husband. If this question is answered in the negative this appeal must be dismissed.

2. It is common ground that Amin Koer was entitled to contract a second marriage. According to the decision of Mula v. Pariah 6 Ind. Cas. 116 : 32 A. 489 : 7 A.L.J. 417 where the rules of her caste allow a Hindu widow to re-marry, the second marriage does not under-the Hindu Law 'divest her of the property of her first husband.

3. But a custom to the contrary may, of course, be proved and the defendants essayed to prove such a custom in this case. Both Courts below have held that the custom has not been proved. In second appeal one of the defendants contends that the decisions of the Courts below are erroneous and they rely on the decision in Ram Kishan v. Medh Singh 1 Ind. Cas. 141. That case related to a village the Wajib-ul-arz of which laid down that a widow was entitled to her husband's property provided that she did not marry again. On that and other evidence the Court held that the custom now in question had been proved. It is not suggested that the parties to that case are in any way connected with the parties to the present case. Several Wajib-ul-araiz have been produced in this case which lay down the custom in unmistakeable terms, but the Wajib-ul-arz of the village in which the property in suit lies is silent as regards the custom and in the opinion of the Courts below at least four instances are proved in which widows married again in this village and did not lose their husband's property. The Waijb-ul-arz relied upon by the defendants relate to families and villages with which the parties to the present case are not shown to have any connection whatever. In the circumstances I am not prepared to hold, as 'a matter of law, that the custom has been proved even if it is open to me to do so. The appeal is dismissed with costs, fees on the higher scale.


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