1. This is an appeal against the judgment and decree passed in appeal by the District Judge, Gurdaspur, affirming a decree of the second class Subordinate Judge, Gurdaspur, and the sole point for determination in this appeal is whether the parties who are Sodhis are governed by custom.
2. Sowaran Singh plaintiff is the grandson of Mohan Singh defendant No. 1 against whom there were certain decrees and in execution of those decrees five alienations 'in invitum' were effected. The plaintiff brought a suit for declaration that these five alienations were not binding on him under custom. Both the Courts below held that the parties who were Sodhi Khatris are not governed by custom and that the sales were for consideration and necessity.
3. In appeal both these findings are challenged and I will first take up the' question of custom. Sowaran Singh and Mohan Singh are residents of village Sanowal & they originally belong to village Hoshiarpur which has become 'becharagh' and the land of that village adjoins village Sahowal. The village, J am informed, is still called Hoshiarpur.
4. The Subordinate Judge found that although there were six witnesses produced by the plaintiff in favour of custom there was no oral or documentary evidence giving any instances. The District Judge in appeal has found that village Hoshiarpur wholly belongs to Sodhis, that it was founded by the ancestors of the present Sodhis living in Sahowal, that in 1868 one Sodhi Fateh Singh was a Lambar-dar, that they were consulted at the time of the preparation of the Riwaj-i-am and that in 1890-91 some of them were mentioned as 'khud kasht'. But as against this the evidence in support of custom was, according to the learned Judge, very little as there were neither oral instances nor instances supported by documents. On this evidence it was found that the parties were not governed by custom.
5. The Sodhis are Khatris and are a priestly class and the presumption would be that they are governed by Hindu Law, but to rebut this it was open to the plaintiff to show that they were governed by custom. In this particular case they have failed to do so, In 'SARDAR SINGH v. MAHARAJ DAS', 79 Pun Re 1909, it was held that Sodhi Khatris of Mauza Hardo Jhanda, Tehsil Batala, District Gurdas-pur, were governed by Hindu Law. In GANGU v. KANSHI RAM', 28 Pun Re 1911 it was held that the onus to prove that Sodhi Khatris of Mauza Thathi Khara, Tarn Taran Tehsil of the Amritsar District, were governed by custom had not been discharged, and in 'HAR-NAM SINGH v. MT. HARDEVI', 43 Pun Re 1911, it was again held that it had not been proved that Sodhi Khatris of Mauza Bhami-pura in Tehsil Jagraon, District Ludhiana, were governed by custom in matters of alienation or succession but were governed by Hindu Law. In 'HARCHAND SINGH v. MUNSHI RAM', 35 Ind Cas 471 (Lah), a Division Bench of the Punjab Chief Court held that in matters of succession the Sodhi Khatris of village Samalsar, Tehsil Moga, Ferozepore District, follow Hindu Law and not agricultural custom. Finally, in a Division Bench judgment of the Lahore High Court, 'HARCHARAN SINGH v. SARUP SINGH', AIR (17) 1930 Lah 750, it was held that the Sodhi Khatris of Ferozepore District were a priestly class, and were governed by Hindu Law and not by the Customary Law governing agricultural communities. In that case it had been established that the parties belonged to a family of Jagirdars, that the poor members of the community were tilling soil with their own han'ds, that there were six instances of 'karewa' marriages and that the Sodhis provided Lambardars and other Revenue Officers, but no initial presumption was raised in favour of Sodhis because of the priestly nature of their caste.
6. The learned District Judge also raised a presumption in favour of custom because the Sodhis were consulted at the time of the preparation of the Riwaj-i-am. A Full Bench of this Court in 'PIARA LAL v. ATMA SINGH', R.S.A. No. 340 of 1947 (Punj) has by a majority held that mere consultation does not raise such a presumption and this point is therefore not relevant for the purpose of this inquiry.
7. In view of the fact that the Sodhis belong to a priestly class the initial presumption in their case is that they are governed by Hindu Law and nothing has been shown to rebut that initial presumption. On the other hand, a large number of decided cases have more or less consistently held that Sodhis are not governed by custom but follow Hindu Law. I must therefore hold that it has not been proved in this case that these Sodhis follow custom.
8. It is not necessary to go into the secondpoint of consideration and necessity in viewof my finding on the point of custom. I therefore dismiss this appeal with costs throughout.