Teja Singh, J.
1. This is a first appeal from a decree of the Senior Subordinate Judge, Kangra at Dharamsala, dismissing the plaintiff's suit for a declaration that he was the lawful heir of Mt. Ram Piari, his deceased wife, and as such was entitled to the suit property left by her and also for possession of the movable property, the lands, the house and the khola mentioned in Caluse 1 to S of the heading of the plaint.
2. The suit property belonged to Mt. Ram Piari mother of Parwin Kumari alias Usha Rani minor,defendant 1. Sh. Raj Kumari defendants, is not in any way related to Usha Rani or plaintiff Gokal Chand, but the father of Mt. Ram Piari was in her employment as a Chaukidar and lived at Holta Tea Estate near Palampur which belongs to Sh. Raj Kumari. The plaintiff is a Rajput and hails from a village in the district of Hoshiarpur. He is now employed in the office of the District and Sessions Judge, Hoshiarpur, and resides in Hoshiarpur town.
3. His allegations in brief were that, he was married to Mt. Ram Piari according to Hindu rites at Holta Tea Estate in 1920-21, that after the marriage he and Mt. Ram Piari lived together as husband and wife till 1932, when Mt. Ram Piari was taken away by Sh. Raj Kumari to Palam. pur, that Mt. Usha Rani was begotten by Ram Piari of him and she is his legitimate daughter and that on Mt. Ram Piari's death the property left by her descended to him as her heir according to the custom by which his family was governed. It was also alleged by the plaintiff that though Mt. Ram Piari came to him at Hoshiarpur for a few days in 1936, she practically spent the whole period from 1932, when she went away with Sh. Raj Kumari, to a short time before her death, which took place in 1941 at Palampore. The reason why Sh. Raj Kumari was impleaded as a defendant in the suit was, that according to the plaintiff, she had taken possession of the movable and immovable property of Mt, Ram Piari and in the course of the proceedings that he started under Section 192, Succession Act she put forward the plea that Mt. Ram Piari had made a will whereby she had appointed Sh. Raj Kumari the guardian of her minor daughter.
4. The plaintiff contended that the will was a forged document and was inoperative, because according to the custom Mt. Ram Piari had no power to make it. The defendants besides objecting to the value and the form of the suit resisted the plaintiff's claim on almost all the grounds. They denied that Mt. Ram Piari waa his lawfully wedded wife or that she acquired the suit property with the money supplied by him. They also denied that the plaintiff was governed by custom or that according to the custom his right of succession was superior to that of defendant 1 or Mt. Ram Piari was incompetent to make a will.
5. As many as 14 issues were framed by the learned trial Subordinate Judge. With the first two, which related to the technical objections, we are not concerned in the appeal. As regards the others, the trial Subordinate Judge decided that Mt. Ram Piari was the lawful wife of the plaintiff, and though no part of the consideration for which she had acquired the suit property was supplied by the plaintiff, because he was governed by custom and according to the custom the property left by a wife descended to her husband in preference to her daughter the suit property must devolve upon the plaintiff. As regards the will, the finding of the trial Subordinate Judge was that it was a genuine document and had been validly executed by Mt. Ram Piari, but it was not binding upon the plaintiff, because the custom did not permit the making of such a will. In the result the plaintiff was granted a decree for possession of the suit property excepting the two motor cars. The defendants now appeal.
6. I shall first take up the question of marriage between the plaintiff and Mt. Ram Piari which appears to me to be the most important point involved in the appeal. It is admitted that Mt. Ram Piari's father was a Gorkha and not a Punjabee. The plaintiff's native place is Ajnoha, tahsil Garhshankar in the Hoshiarpur district, and there can be no denying the fact that it is far away from Palampur. There is no evidence whatsoever to show who introduced the plaintiff to Mt. Ram Piari's parents and how the latter were persuaded to give the hand of their daughter to him. The direct evidence relating to the marriage ceremony consists of the statements of Babu Ram, P.W. 7, AnantRam, P. W. 11, Babu, P. W. 12, and Asa Ram, P.W. 13. [After discussing their evidence, his Lordship proceeded: The next set of witnesses produced by the plaintiff in support of his marriage consists of Dr. Shadi Lal, P.W. 4, Mukhi Ram, P.W. 6, Sham Lal, P.W. 9 and Har Narain, P.W. 10. It was urged that their evidence is admissible under Section 50, Evidence Act. Dr. Shadi Lal is a private medical practitioner. He deposed that he had been going to Gokal Chand's a house for many years on professional visits and knew that the people of the locality considered him and Mt. Ram Piari as husband and wife. He further deposed that Paras Ram, a younger brother of Mt. Ram Piari, was residing with her in Gokal Chand's house and he used to address the plaintiff as Jija which means sister's husband. According to him he saw Mt. Ram Piari for the last time in 1930 or 1932. The witness was not able to corroborate his testimony by any document such as outdoor register or register relating to visits, which are usually kept by medical practitioners. Nor did he produce arly prescriptions issued by him mentioning the name of Gokal Chand or Mt. Ram Piari. The explanation for this omission that he gave was that he started keeping the record of his patients and visits only in 1939 and before that he had none. This considerably detracts from the value of his evidence and I do not think that much reliance can be placed upon him. But even if we assume that what the witness stated was true, the question is whether it can come within the purview of Section 50, Evidence Act. The relevant words of the section are:
When the Court hag to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact.
Now so far as the people of the locality are concerned, the witness did not depose to any conduct on their part. All that he said was that they considered Gokal Chand and Mt. Ram Piari as husband and wife. At the utmost this amounts to an expression of opinion. But according to the words of the section only that opinion is relevant which is expressed by conduct and no conduct having been proved by the witness this part of his evidence is irrelevant. The respondent's counsel also relied upon the averment of the witness that Mt. Ram Piari called herself as the wife of Gokal Chand, but this also must be ignored, because he had to admit in cross, examination that whatever talk he had with Mt. Ram Piari was confined to professional matters, i.e. to the ailments in connexion with which he was consulted. So far as Paras Ram is concerned, the fact that he resided with Gokal Chand and Mt. Ram Piari and called the former his Jija is covered by the words of Section 50 and is admissible. Whether by itself or taken along with other facts and circumstances it was sufficient to prove the factum of the marriage is a matter to which I shall advert later.
7. Mukhi Ram is a Municipal Commissioner. His evidence is similar to that of the previous witness. Apparently he was a respectable witness and the appellants were not able to make out that he had any interest in giving false evidence but he could not satisfactorily explain the sources of his knowledge. He admitted in cross-examination that he had no social relations with the plaintiff that the latter did not reside in his mohalla or ward that he never visited his house, that Mt. Ram Piari never came to him and that he had had no occasion to talk to her. He stated that the plaintiff visited his shop every now and then, but why he did so is not clear from his statement. So I am disposed to disregard his evidence altogether.
8. Sham Lal is the Reader to the District and Sessions Judge, Hoshiarpur. He said that since both he and the plaintiff were working in the same office he had social relations with him and he had been seeing him living with Mt. Ram Piari in the same house. He also stated that the couple treated each other as husband and wife and so did the people of the locality. In spite of the fact that I believe the statement of this witness I must refuse to use it as evidence in the case, because it does not satisfy the requirements] of Section 50 and is, therefore, irrelevant. It was held in Lakhmichand v. Mt. Anandi A.I.R. 1 1933 All. 130, that the evidence of witnesses that a certain man and a woman were regarded as man and wife by the members of the community does not come within the purview of Section 50, not being an opinion expressed by conduct as to existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject, and if Section 50 does not apply, there is no other statutory provision either in the body of the Evidence Act or outside the said Act under which such evidence could be let in to prove marriage. Reference should also be made to Secy. of State v. Mt. Mariam A.I.R. 1937 Sin 126 where it was held that mere statements that a person is or is not married are not admissible under Section 50, Evidence Act. What the Court wants under Section 50 is opinion expressed by conduct of any person who as a member of the family or otherwise has special means of knowledge of the relationship.
9. Har Narain is a Clerk of Court to the Senior Subordinate Judge, Dharamsala. He was working at one time at Hoshiarpur and was the plaintiff's colleague. His evidence that the people among whom the plaintiff and Mt. Ram Piari lived treated them as husband and wife stands on the same footing as that of previous witnesses and is not admissible. The witness also deposed to Paras Ram's behaviour towards the plaintiff. This, as I have already observed, is legal evidence.
10. Next we turn to Lala Bishan Das, teacher of the D.A.V. High School, Hoshiarpur. His evidence was that Paras Ram son of Chandar Vir, was admitted to his school on 29th April 1930 and his admission form was signed by Gokal Chand as his guardian. The boy was struck off the rolls because of absence on 15th April 1931. On 24th February 1932, Gokal Chand made an application for re-admission of Paras Ram and described him as his wife's brother. On the strength of this application, Paras Ram was readmitted but was again discharged, on 17th October 1932. His name remained on the school register till 20th July 1934, when he was finally discharged because of absence. The witness also deposed that because the plaintiff's house adjoined that of his sister he used to visit him and hence came to know Mt. Ram Piari who was regarded by everybody as the plaintiff's wife. He saw Paras Ram living in the plaintiff's house and heard him addressing the plaintiff by the term 'Jija.' This part of the statement of the witness is no doubt legal evidence. As regards the application and admission form submitted by the plaintiff to the school they must be regarded as proved by the testimony of this witness, but the statement contained in one of them that Paras Ram was the wife's brother of the plaintiff amounts to an admission in plaintiff's own favour and cannot, therefore, be admitted in evidence. The rest of the witness's evidence deals with a matter which for reasons mentioned above is not provable. So the position is this. There is no satisfactory evidence that the plaintiff was married to Mt. Ram Piari.
11. There is, however, evidence to show that both lived together as man and woman for a number of years at Hoshiarpur. It is also proved that with them lived Paras Ram the younger brother of Mt. Ram Piari and he treated the plaintiff as Mt. Ram Piari's husband. The respondent's counsel contended that these two facts were sufficient by themselves to raise a presumption that the plaintiff was lawfully married to Mt. Ram Piari and the presumption could only be rebutted by a very strong evidence of conclusive nature. The counsel relied inter alia upon Indar Singh v. Thakar Singh A.I.R.1921 Lah. 20 where it was held by a Division Bench of the Lahore High Court that
there is in law a presumption in four of marriage and against concubinage when a man and woman have cohabited continuously for a number of years and this presumption of law can be repelled only by strong, distinct and conclusive evidence.
While referring to this presumption, Woodroffe and Ameer Ali in their well-known Law of Evidence observe as follows:
The mere cohabitation of a man and woman or their behaviour in other respects as husband and wife always affords an inference of greater or less strength that a marriage has been solemnized between them. Their conduct being susceptible of two opposite explanations, the Court, giving effect to the presumption of innocence is bound to assume it to be moral rather than immoral.
I entirely agree with this proposition, but my opinion is that the answer to the question whether the presumption raised by cohabitation of a man and woman for a number of years is so strong that it can be rebutted only by evidence of conclusive nature or it can be rebutted by a slight evidence or even by circumstances, must depend upon the facts of each care. If the dispute is between one of the parties to the alleged marriage or their offspring on one side and the people who claim adversely to them on the other, the amount of evidence required to dislodge the presumption must by the very nature of things be very strong. All the cases relied upon by the respondent's counsel were of this kind. Where, however, the dispute is between the man and the woman or between one of them and a child alleged to be the offspring of the marriage, it would not be proper to insist upon strict proof. The case of Abdul Bazaak v. Aga Mahomed 21 I.A. 56 appears to be in point. Unfortunately, I have not been able to get hold of the full report of this case but according to Woodroffe and Ameer Ali (Law o Evidence, Edn. 9, p, 830) it was held therein that the presumption which ought to be made in favour of marriage where there has been a lengthened cohabitation, is rebutted by showing that the conduct of the parties is inconsistent with the relation of husband and wife.
12. Let us now turn to the facts of the present case and see what do they lead to in the light of the observations made above. The plaintiff's 'counsel urged that he and Mt. Sam Piari came to Hoshiarpur in 1920 or 1921 and lived there together continuously up till 1932. The evidence relating to the marriage having been rejected as worthless it cannot be said with certainty that the plaintiff brought Mt. Ram Piari to Hoshiarpur in 1920 or 1921. None of the Hoshiarpur witnesses is definite as regards the year when they first saw Mt. Ram Piari in the plaintiff's house. The documentary evidence is confined to the birth of a daughter to the plaintiff and the earliest application made by him to the D.A.V. High School, Hoshiarpur, for the admission of Paras Earn. The date of the first is 4th March 1928 and that of the second 21th February 1932. I am aware that some of the witnesses stated that they saw Mt. Ram Piari living with the plaintiff for 10-11 years, but these are vague statements and I am not prepared to accept them at their face value. This means that we cannot fix duration of the living together of the plaintiff and Mt. Ram Piari with certainty at more than or 5 years. It is significant that during this period and even after Mt. Ram Piari is alleged to have borne a daughter to the plaintiff either she was not welcome by other people or she did not herself like to visit the families of the plaintiff's friends and colleagues. I would refer particularly in this connection to the statements of P. Ws. Sham Lal and Har Narain mentioned above. Sham Lal said ' I have got social relations with the plaintiff: Ram Piari never came to my house, though I was married since 1922.' Further on he said:
My wife also never visited the house of Ram Piari. 1 had no direct talk with Bam Piari, so I do not know to which caste she belonged.
Har Narain's evidence was:
I was married in 1920. Mt. Ram Piari never came to my house, nor my wife ever went to my (her?) house. I used to go to the house of plaintiff to see him and never Ram Piari. I never had any occasion to talk with Ram Piari. The plaintiff was and is my friend, I cannot give any reason why my wife never visited Bam Piari at her house or why Bam Piari never came to visit my house.
After he had said all this the witness probably thought that a word of explanation was necessary for such an extraordinary state of affairs and then he added, 'It is not necessary that the ladies should also be on visiting terms where the husbands are on visiting terms.' Of course, it is not necessary but usually when people form friendship with one another and they happen to be working in the same office social relations grow up as a matter of course between their respective families and visits are frequently exchanged by ladies of the families. More significant than this is the plaintiff's own conduct towards Mt. Ram Piari and Mt. Parwin Kumari. If it be true that Mt. Parwin Kumari is the girl to whom Mt. Ram Piari gave birth on 4th March 1929, she could not have been more than three years when Ram Piari left the plaintiff's protection. It is alleged that she went back to him for a few days in 1936, but the evidence on this point is very meagre and I do not believe that it is true. From 1932 till her death in 1941, Mt. Ram Piari remained under the protection of Sh. Raj Kumari. The plaintiff did not allege that during all these long years he made the slightest effort to take Mt. Ram Piari back to his house or he visited her even once. There is no evidence that he ever wrote to her or got a tetter from her. If the plaintiff is to be believed 8th Raj Kumari took away his wife against his wishes and the wife was not happy at being separated from him, and yet he did not move a little finger of his to get her restored to him. Ordinarily I should think that if a man is deprived of his wife and a child he would move heaven and earth to get them back and to have the seducer or the abductor brought to book. For the plaintiff, who is employed in the office of the highest judicial officer of the district, this should have been more natural and probably easier. Why he took no step whatever remains unexplained. His counsel said he was perhaps too timid and too self-respecting to proclaim the disgrace to which he had been subjected by filing an action or lodging a complaint. Let us assume that this was the case but what prevented him from writing to his wife or going to Palampur to see her and his infant daughter or seeking the intervention of his parents-in-law or some other persons. But be did nothing of the kind. To me the explanation appears to be that he was all along conscious that no legal tie bound Mt. Ram Piari to him and though he had the advantage of her company for some time, after she had gone away he had no right in law to compel her to come back to him. This also explains his conduct towards Parwin Kumari whom he now claims to be his legitimate daughter.
13. Along with this, we must take into consideration the evidence of Mt. Ganga, Ram Piari's mother who denied that she or her husband gave Mt. Ram Piari in marriage to the plaintiff. Then there is the will, Ex. D-3, executed by Mt. Ram Piari. The respondent's counsel tried to show that the evidence relating to the execution of the will was not satisfactory and it should be rejected as a forged document. The finding of the Court below, as I have already mentioned, is against the plaintiff on this point and after referring to the evidence of the scribe of the will (Mr. Charan Das Puri, Pleader) and one of its attesting witnesses I am of opinion that that finding must be accepted as correct. Mr. Charan Das has no doubt admitted that he was standing counsel of Sh. Raj Kumari for a number of years, but I do not agree that he should be disbelieved for this reason. The argument addressed before us was that Sh. Raj Kumari got the will forged after Mt. Ram Piari's death, but the contents of the will belie this contention. It will be remembered that the will contained two provisions: (i) that Sh. Raj Kumari would be the guardian of Mt. Ram Piari's minor daughter after her death and (ii) that in case the minor did not conform with the wishes of Sh. Raj Kumari the property left by Mt. Ram Piari would go to Sh. Raj Kumari. Had Sh. Raj Kumari got the will prepared, and she did it with a view to benefit herself, what was there to prevent her from having the whole property bequeathed to hen unconditionally? I, therefore, agree with the Subordinate Judge that the will was a genuine document and it was executed by Mt. Ram Piari. In para, 1 of the will occurs the following statement:
I have no issue other than one daughter Usha Rani. Moreover, I have no other heir. I never married any one. But the said daughter was born to me from the seed of a certain parson with whom I had friendship.
This statement coming from Mt. Ram Piari is of great value and should by itself demolish the plaintiff's case. I must repeat here what I have said before that the plaintiff never alleged any kind of ill will with Ram Piari, and if the allegations contained in his plaint are believed that he and Ram Piari were devoted to each other, why would she deny, her marriage with him if they had been regularly married? I believe that they did live together as husband and wife, but this was because they had contracted illicit connection and they liked each other. It is in the evidence of Sh. Raj Kumari that Ram Piari when she was still very young eloped with a motor driver and did not return to Palampur thereafter for many years. When she returned she was accompanied by Parwin Kumari. To the same effect is the evidence of Ram Piari's mother.
14. Reading this evidence together, the conclusion to which I arrive is that the plaintiff came to know Mt. Ram Piari after her elopment from home and having won her attentions he kept her in his house as his wife. The story that he took a marriage party to Palampur and Ram Piari's parents gave her hand to him is a myth. As regards Paras Ram's living with him, the explanation appears to be that he must have been invited by Mt. Ram Piari, probably with a view to mollify her parents and to persuade them to let by-gones be by-gones, and when he was once there he had no option but to treat him and even call him as his sister's husband, as he was in fact. After all long cohabitation of a man and woman and their treatment of each other as husband and wife does not constitute marriage. It can only give rise to a presumption of marriage. Such a presumption is rebut table and my opinion is that in the present case it has been completely rebutted. Accordingly I hold that the plaintiff was not able to prove that Mt. Ram Piari was his lawfully wedded wife.
15. The next question is whether the plaintiff, even if he was really the lawful husband of Mt. Ram Piari, was entitled to succeed to the property left by her in the presence of her daughter, Parwin Kumari. For the decision of this question we shall first have to determine whether the plaintiff and his family were governed by Hindu law or custom. It is not denied that the plaintiff is a Rajput and the Rajputs are one of the predominant statutory agricultural tribes of the District. By referring to the manual of the customary law of the Hoshiarpur district we find that the Rajputs were consulted at the time of the preparation of; the riwaj-i-am. Relying upon these facts the plaintiff's counsel argued that the presumption was that the plaintiff was governed by customs and not by his personal law. The appellants' counsel on the other hand argued that in spite of the fact that the plaintiff was a Rajput and his original home was in a village, he had ceased to be governed by custom, because (i) he no longer belonged to the village, (ii) there was no evidence to show that he depended upon agriculture as his main source of livelihood or event owned land and (iii) he and his father both had: taken up nonagricultural occupations. In support of his contention the learned Counsel relied upon the observations made by Lal Ghand, J. in Mahomed Hayat Khan v. Sandke Khan 55 P.R. 1908. In that case the parties were Mohammadan Rajputs of the Ferozepore district and the question was whether one of them, namely Munshi Kadar Bakhsb who rose to some eminence in Government service and had acquired property possessed unrestricted powers of alienation. The learned Judge answered the question in the affirmative and held that the presumption in favour of a restricted power of alienation of ancestral immovable property, as laid down in Gujar v. Sham Das applied only to members of agricultural tribes who were members of village communities and whose main occupation was agriculture, but not to those who had altogether drifted away from agriculture as their maim occupation, and had settled for good to urban life and had adopted trade, industry or service as their principal occupation and means and source of livelihood. My opinion is that that case is distinguishable from the present case for two reasons: (1) that it was a case of alienation and before it could be held that the powers of a proprietor in this respect were restricted it had to be proved that the conditions therein were similar to those on the strength of which Gujar v. Sham Das was decided and, (2) that the evidence in the case left no doubt that the persons with whom the Court, was dealing had drifted away from agriculture, had settled for good to urban life and had adopted service etc., as their principal occupation and means and source of livelihood. The learned Judge after referring to the special position of the Mohammadan Rajputs and after remarking that even in the case of tribes which are more predominantly agriculturists than the Rajputs it does not follow that they are bound by agricultural, custom, in case the family has severed, all connection with agriculture as its hereditary occupation, made the following observations:
I do not affirm for a moment that if a member of an agricultural family casually takes to Government service or some other profession as an additional source of living or emoluments, that the family thereby cases to be agriculturist or to be bound by agricultural customs, or in the reverse case, if a member of the mercantile class buys lands as an investment, be thereby becomes an agriculturist and bound by customs of agriculturists. But it seems to me equally clear that if a member of an agricultural family settles in a town, takes to Government service or some lucrative profession, trade or industry, and thus settles to urban life permanently thereby severing all connection with agriculture and its associations, that such family or the descendants of such family in the third or fourth generation are not governed by agricultural customs, simply because some of their ancestors at one time were agriculturists, or that the family belongs to one of the agricultural tribes.
16. It will thus be seen that according to the learned Judge before a person belonging to a predominant agricultural tribe can be held to have given up custom, which governed his tribe, it must be shown that he had severed his connection with agriculture and had adopted trade, industry, service or any other non agricultural occupation as the main source of his livelihood. The appellants have not been able to prove these facts in the present case*One of the witnesses stated that the plaintiff's family were Sahukars and that his father was a lawyer's Munshi. The plaintiff himself is in Government service and because of this he has taken up residence in Hoshiarpur. It is also in evidence that the plaintiff has sold his land, but it is not clear whether the land that he has sold consisted of the entire land that he owned or he has still some land left. In my opinion these facts are not sufficient to show that he has ceased to be an agriculturist or that he has severed all connection with his village and his community.
17. The appellants counsel also relied upon Mt. Fukar-un-Nisa v. Rahim Bahhsh 23 P.R. 1897, but the facts of that case were also distinguishable. The parties were Punjabi Arains but it had been proved that for many generations they had been living amongst and giving themselves out as Muhammadan Sheikhs of Sabzi Mandi, a suburb of Delhi, and though they owned land they did so rather as market gardners and capitalists than as true agriculturists.
18. Then the learned Counsel relied upon Muzaffar Mahomed v. Iman Din A.I.R. 1927 Lah. 642. Here the parties were Kambohs and the question was whether a Kamboh of Lahore was governed by custom in matters of alienation. The facts found were that the ancestors of the said Kambohs had from time immemorial lived in Lahore City and none of them had actually followed agriculture as a profession and further that the main occupation of the family had for generations been service or trade. The learned Judges held that even though Kambohs are one of the dominant agricultural tribes of the Lahore District, in the circumstances of the case the onus-of proving that the plaintiff's family was governed by agricultural custom was rightly placed upon him.
18. The case that appears to me to be in point is Mohammad Yusaf v. Mohammad Abdullah and Ors. A.I.R.1944 Lah. 117. Here also the parties were Kambohs but they belonged to a suburb of Lahore and the question was whether they were governed by custom in matters of succession. It was held that Muhammadan Law applied and not custom. The following observations made by-Din Mohammad, J., may be quoted with advantage:
No doubt it is open to a family to abandon custom and to adopt its personal law but in order to determine that this has effectively been done unequivocal circumstances must exist which point to that conclusion. The mere fact that a person belonging to a tribe, which is a predominantly agricultural tribe and was consulted at the time of the preparation of the riwaj-i-am, migrates to a town or temporarily ceases to cultivate land would! not be enough to justify the conclusion that he has abrogated customary law altogether. Custom, unlike a cloak, cannot be cast off at one's mere volition.
20. In Ata Mohammad v. Mohammad Shaft and Ors. reported at p. 121 of the same report: (217 I. C. 17) Ram Lall and Mahajan, JJ. applied the principle enunciated in the above case to the Arains of Mozang, which was originally a suburb of Lahore but is now a part of that town. It was held that though it had been, proved that the alienor had been carrying on a fuel shop and his father was living on the rental income, since it was clear from the revenue records that upto the year 1939, tilling the soil was the main occupation of the members of the family it was difficult to reach the conclusion that they had drifted away from agriculture-and that their association with the large body of village Arains had been entirely cut off and they were not governed by custom.
21. The only other case to which I wish to refer is Mumtaz Hussain and Ors. v. Mt. Nek Akhtar and Ors. A.I.R. 1947 Lah. 280 recently decided by a Special Bench of the Lahore High Court. The parties were Sayeds of Gurdaspur district and what the Court was called upon to decide was whether they were governed by custom in matters of inheritance and succession. One of the parties contended that because certain members of the family had taken up service and were living in a town they had given up custom and were governed by Muhammadan Law. The Bench repelled this contention and held that where members of a tribe were consulted at the time of the preparation of the riwaj-i-am, that raises an initial presumption that the tribe was governed [by custom and the onus would lie upon any person alleging the contrary to displace the initial onus. They further held that once it is proved that a certain person was member of the predominant agricultural tribe, the onus of showing that he had abandoned the custom rests on the party alleging the same and the mere fact that a member of such a tribe and his ancestors had taken up service and he was living in another place is not sufficient to discharge the onus.
22. Relying upon these authorities my finding is that it was for the appellants to prove that the plaintiff was not governed by custom and even if the onus initially rested upon the plaintiff it was shifted to the other side when it was shown that the plaintiff belonged to a predominant agricultural tribe which was consulted at the time of the preparation of the riwaj-i-am. It is conceded that the appellants adduced no evidence to establish that the plaintiff had ceased to be governed by Customary Law.
22. In order to prove that according to the custom the husband of a deceased woman succeeds to the property left by her in preference to her daughter the plaintiff relied upon the answer to question 83 of the riwaj-i-am prepared at the time of the Settlement of 1911-12. The question and answer read as follows:
Question:-Chapter IX, Istridhan.
What power has a husband over the Istridhan ol bis wife? To whom the said Dhan (property) descends after the death of the wife? Answer by Rajputs,
Same answer as that of Jats.
The husband has no power over the Istridhan of his 'wife, but has power of user with her consent. After the death of the wife her said Dhan (property) descends to her male issue and in the absence of male issue, to her husband. But the wife has no power of alienation.
In the Manual of Customary Law of the Hoshiarpur district compiled by R. Humphreys Esq., Edition 1914 the question and answer read as follows:
What power has a husband over the special property of his wife, can he sell, mortgage or gift it? If he has such power, under what circumstances?
The husband has no power over the special property of his wife; but has power of user with the consent of liis wife. After the death of the wife her special property descends to her male issue, and in default of such to her husband. But the wife has no power of alienation.
24. The question which deals with succession specifically is 55 and these are the words of the question and answer:
When a woman dies holding property in her own right, is her husband entitled to succeed to it? Answer.
All tribes agree that the husband succeeds to the property left by his wife. The woman's property is considered to be the property of her husband.
The plaintiff for reasons best known to him did not produce a copy of question and answer No. 55 from the riwaj-i-am of 1911-12. In its stead he produced the copy of question 55 from the Settlement of 1884. The words are:
When a woman dies holding property in her own right, does her property devolve on her husband or not? What share devolves on him?
If there is such property her husband is its owner during her lifetime as well as after her death.
The solitary illustration given under the answer relates to a dispute between the husband and parents of a Hindu Jat woman about the jewellery left by her.
25. The appellants' counsel argued that the entries contained in Ex. P-16 should be read together with those contained in the Manual and subject to the remaks of the compiler appearing under the questions concerned. The respondent's counsel on the other hand urged that the vernacular riwaj-i-am, of which Ex. P-16 is the true copy, incorporated the true answer given by the persons consulted at the time of the preparation of the riwaj-i-am and it alone should be looked at in order to find out what the custom was. The counsel further contended that the remarks merely expressed the opinion of the compiler and no importance should be attached to them. The contention of the appellants' counsel is supported by Aishan Bibi v. Allah Ditta A.I.R.1934 Lah. 432 where it was held that if there is a difference in the original vernacular version and the English version, the English version should be preferred on the ground that it is the final draft.
26. The respondent's counsel drew our attention to certain remarks made by Din Moham. mad, J. in Khadam Hussain v. Mohammad Hussain A.I.R. 1941 Lah. 73, that in his opinion whatever weight might be attached to the compiler's remarks, they were not sufficient to rebut the presumption arising from the entries recorded in the riwaj-i-am, especially when they were in accord with the earlier riwaj-i-am. This question was again considered by the same Judge in a later case Mt. Jawali v. Lal Singh A.I.R.1942 Lah. 164 and though he said that he adhered to the opinion expressed by him in the 1941 case, he considered that in the other case there was ample justification for attaching due weight to the remarks made by the compiler. Moreover, it will be seen that the remarks of the compiler in the 1941 case were of a different nature. In the present case, the remarks appended to answers to questions 55 and 83 are not in derogation of the custom referred to in the respective answers but, are explanatory and I do not understand how they can be ignored. For example the words used in question 55 are, when a woman dies holding property in her own right etc., One might ask what did the question mean by the property held by a woman in her own right and whether it included all kinds of property movable as well as immovable. The remark explains this matter and it is stated therein that the question appears to apply to movable property belonging to females rather than to cases where a woman has succeeded by inheritance. There is another reason why the remarks should not be ignored and that is that it gives the opinion of the compiler regarding the scope of the question and since it was he who framed the question and presumably also put it to the tribes, his opinion is entitled to considerable weight. Similarly, the words used in question 83 are: 'Special property of the wife' and there being some difference of opinion as to the exact meaning of the term special property' the author's explanation given in the remark is relevant as well as helpful. He says that the question refers to the Istridhan or property given by her parents to a woman on her marriage. From this, it is clear that the scope of question and answer 55 is limited to movable property and that of question 83 to the property which a woman gets from her parents on her marriage. Now the suit property was partly immovable and partly movable and it is only in respect of the immovable property that the plaintiff was granted the decree. The whole of this immovable property was obtained by Ram Piari from Sh. Raj Kumari and no part of it was given to her by her parents at any time. The local custom, which the plaintiff sought to prove by the riwaj-i-am and the Manual of Customary Law, is silent regarding the rule of succession that is to be followed in respect of this kind of property.
27. What we have now to see is whether there is any general custom bearing on the point prevalent among the agricultural classes of the province. For this we must turn to Chapter 15 of the Rattigan's Digest of Customary Law which deals with special property of females. The following are the relevant paragraphs:
268. The Customary law prevailing amongst agricultural tribes usually regards the wife's personal property as merged in that of the husband, who is also deemed entitled to all the wife's earnings.
270. Upon the death of the wife in her husband's lifetime, the husband usually succeeds to all the property of which she was in possession at the time of her death.
The remark appended to Para. 270 is to the effect that:
It applies to the wife's stridhan; the land inherited by her from her father reverts on her death without direct descendants to her father's collaterals.' Though wife's special property is defined in Para. 272, no definition of the term 'istridhan' is given. Of course the term is well-known in Hindu Law and according to Section 113 of Mulla's Hindu Law, it is of six kinds, namely: (1) Gifts made before the nuptial fire or gifts made at the time of marriage before the fire. (2) Gifts made at the bridal procession, that is, while the bride is being led from the residence of her parents to that of her husband, (3) Gifts made in token of love, that is, those made through affection by her father-in-law and mother-in-law and those made at the time of her making obeisance at the feet of elders, (4) Gifts made by the father, (5) Gifta made by the mother, and (6) Gifts made by a brother.
28. At the same time, it is mentioned in the section that the above is not an exhaustive enumeration of 'istridhan' and the following may be added to it: (1) Gifts made by a husband to his wife on supersession, that is, on the occasion of his taking another wife, (2) Gifts subsequent, that is, those made after marriage by her husband's relations or her parent's relations, (3) Sulka, or marriage fee, and (4) Gifts from sons and relations. Gifts made by strangers do not fall within any of these categories but Mulla is definitely of the opinion that they are undoubtedly 'istridhan'. The definition of wife's special property as given in para. 272 of the Rattigan's Digest is as follows:
Immovable property purchased from the proceeds of movable property given to the wife by the husband as a present during marriage or from the proceeds of jewellery belonging to the wife constitutes the wife's special property whioh she can dispose of at pleasure after the husband's death.
The immovable property with which we are concerned in the present case not having been purchased by Mt. Ram Piari from the proceeds of movable property given to her by the plaintiff or from the proceeds of her jewellery, cannot be regarded as her special property within the meaning of the above paragraph, but it would certainly be her istridhan in the sense the term is understood in Hindu Law. The learned Counsel for the appellants contended that even so succession in respect of it cannot be governed by Para. 270, because the very wide rule enunciated therein is not supported by any instances. I am inclined to think that this contention must be upheld. No doubt reference is made under the paragraph to a few cases, but none of them related to succession to property given to a wife by a stranger. Two of the cases, namely, Ghulam Mohamed v. Butta A.I.R.1934 Lah. 355 and Feroz Din v. Mohammed Hussain A.I.R.1932 Lah. 626 were about succession to a dower debt. In Umar Hayat v. Nazar Mahomed A.I.R.1936 Lah. 373 the property in dispute was the self-acquired property of the wife and the Riwaj-i-am of the district to which the parties belonged provided that the persons entitled to succeed were sons, husband and daughters In the fourth case, namely Ghafur v. Shahabuddin A.I.R. 1932 Lah. 397 the husband had predeceased the wife and the contest was between his heirs and the natural heirs of the wife. In Indar v. Rao 4 P.R. 1912, which was a case of Jullundur district, one of the parties relied upon Paras. 270 and 271 of the Rattigan's Digest. Mr. Justice Johnstone, who decided the appeal refused to apply the paragraphs and one of the grounds given by him was that no authorities were quoted under the paragraphs. It may be mentioned that para. 271 lays down the rule regarding the succession to the property left by the wife where the husband has predeceased her.
29. This paragraph was also criticised by Tek Chand, J., in Gurdial Singh and Ors. v. Mt. Bhagwan Devi and Ors. A.I.R. 1927 Lah. 441 and this is what he said:
The statement in Rattigan's Digest of Customary Law, Para. 271, on which Mr. Nawal Kishore relies is not supported by any authority whatever and I am not prepared to follow it. Custom is a matter of proof and not of conclusions based on a priori reasoning or deductions drawn from a comparative study of the laws of distribution prevailing among primitive societies. The learned author of the Digest does not base his remark on any entry in the Riwaj-i-am of any district in the Pun. jab or on any decided case, reported or unreported. I must, therefore, respectfully decline to follow it.
I am of the opinion that these remarks also apply to para. 270 and I am unable to follow it.
30. Now it is well settled that even in case of a party who is admittedly governed by Customary Law if no well-recognized rule of that law can be determined in respect of a particular question we must fall back upon the party's personal law which is Hindu Law in the present case. It is sufficient to refer in this connection to Daya Ram v. Sohel Singh 110 P.R. 1906. According to Hindu Law, as I have already pointed out, the suit property would be described as 'istridhan' and the rule of succession governing this kind of property is 'laid down in Section 147 of Mulla's Hindu Law. It is mentioned that for the purposes of succession, the Mitakshra divides stridhana into two classes, namely, (1) sulka which is defined as a gratuity for which a girl is given in marriage; and (2) other kinds of stridhana. Stridhana other than sulka passes in the following order: (1) Unmarried daughter, (2) married daughter, (3) daughter's daughter (4) daughter's son (5) son (6) son's son. The husband comes after them. Parwin Kumari being the daughter her right is, therefore, superior to that of the plaintiff.
31. In the result I would allow the appeal, set aside the decree passed by the Court below and dismiss the plaintiff's suit with costs through, out.