1. This is a Letters Patent Appeal against the judgment of a learned single Judge of this Court dismissing the plaintiff's second appeal against an appellate decree of the District Judge M. R. Bhatia confirming the decree of the trial Court by whom the suit of the plaintiff was dismissed.
2. The land in suit originally belonged to Badaman and Mussammat Kahni. They made a gift of it to Bam Sarup the husband of Mussammat Chameli. Bam Sarup died on 26-6-1931 and on 23-2-1944 Atma Ram brought a suit for possession of the land in dispute alleging that he was entitled to the land as Mussammat Chameli had married one Phul Singh by whom she had a child who was born on the 11th of March 1943. Mussammat Chameli denied the 'karewa' marriage with Phul Singh but admitted that she gave birth to a child alleging that this was the result of a rape committed on her by a person unknown when she was returning from Railway Station to her house. The learned District Judge held that there was illicit connection between Phul Singh and Mussammat Chameli. The question which was raised before the learned District Judge was whether the widow should be divested of her estate because of this unchastity and reliance was placed on question No. 39 of the Customary Law of the Ambala District, the parties being Kambohs of Jagadhri Tahsil of that District. This plea was negatived by the learned District Judge which on appeal to this Court, was confirmed by a learned Judge of this Court.
3. In appeal reliance was placed on question No. 39 of the Riwaj-i-Am of the Ambala District which is as follows:
'Question 39. -- What is the effect of unchastity or re-marriage on the rights of the widow?
1887. -- All tribes agree that re-marriage destroys the widow's rights and the majority state that the same result follows from unchastity. The general sense of the replies is however that secret immorality is not visited with penalties. A widow must show open and scandalous immorality, as, for instance, where she becomes the mother of an illegitimate child, in order to justify ejectment. Given notorious immorality of this kind, the unanimous opinion of the people is that she loses all rights.
It may be noted that this view has not found acceptance with the Chief Court. In the decision NO. 107 of 1888 the Court has held quoting previous decisions No. 78 of 1869, No. 158 of 1883, No. 118 of 1884 and No. 105 of 1885, that there is no general custom of the Punjab by which mere unchastity 'badchalni') of a Hindu widow is a sufficient reason for declaring her right to her husband's estate to be forfeited. The entries to the contrary in the Sirsa Code of Customary Law are set aside on the ground that no instances are quoted. It may be pointed out that this is a somewhat hard ruling, besides being distinctly against the universal feeling of the people. It is almost impossible that instances should be openly quoted in a matter so intimately affecting the family honour of the people by whom the custom is attested.
1918. -- As before. The Ludhiana Code mentions a Chief Court Ruling, -- 'Mt. Sobhi v. Bhana', 25 Pun. Re. 1891 (A), by which it was held that mere unchastity was, by custom, sufficient to deprive a Jat widow of her husband's estate.'
4. In -- 'Hardayal v. Mt. Dakhan', AIR 1953 Punj 209 (B), a connected appeal, I have at great length discussed the law in regard to forfeiture of estates by widows on account of their unchastity. It is not necessary to repeat that here, but I have held there that the general custom of the Punjab is not in favour of such forfeiture and the onus is therefore on the person who asserts in favour of this custom to prove it. I have quoted various rulings which deal with this question. But in the present case there is the further fact that there are instances given in Appendix I to question. No. 39 which go against what is recorded in question No. 39. These instances are Nos. 408, 411 and 412. In the first case it was held that in spite of the birth of an illegitimate child, the widow did not lose her right by unchastity and in the next two cases she was not divested in spite of the fact that she was living in adultery with another person.
5. Mr. Kundan Lal Gosain for the appellant has relied upon instance No. 416 at. page 93 which was a compromise decree for possession of land passed by a Subordinate Judge on 3-4-1903. In the first place it is not clear what the facts of this case were and why there was a compromise. Compromise decree can be a very good instance and it may also be a useless instance. It is not clear from this entry alone as to what value can be attached to this instance. In any case the onus was on the plaintiff and he has not discharged it. Palshaw J., in his judgment under appeal has observed:
'It does not seem to me however that this answer can, in the absence of specific instances, have more force in the case of Kambohs than it has in the case of Jats, who, according to the table contained at page (ill) of the work, number 14 per cent, of the population, whereas the Kambohs are only 1 per cent, and in the case of Jats it has clearly been rebutted by the instances cited. No instance is cited one way or the other in the case of Kambohs.'
6. I am of the opinion that the learned Judge rightly held against the plaintiff and I would therefore dismiss this appeal, but in the circumstances of this case would leave the parties to bear their own costs of the Letters Patent Appeal.
7. I agree.