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TMI Blog1952 (5) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Parvin Kumari (defendant No. 1), on the 4th March, 1929, and that Ram Piari died in April, 1941, leaving both movable and immovable properties which she had acquired in her own name with the aid of his money and which had been taken possession of by Raj Kumari. He further alleged that he was a Rajput by caste belonging to tehsil Garhshankar in the district of Hoshiarpur, and was governed by custom in matters of succession, and, according to that custom, he, as the husband of the deceased Ram Piari, was entitled to the movable and immovable properties left by her to the exclusion of Parvin Kumari, her daughter. 3. The suit was contested by both Parvin Kumari and Raj Kumari, and both of them denied that the appellant had been married to Ram Piari. Their case was that the properties in suit were acquired by Raj Kumari with her own money for Ram Piari, that the latter had made a will bequeathing them to her daughter, Parvin Kumari, that the appellant was not governed by custom, and that in any event the alleged custom could not apply to the personal and self acquired property of Ram Piari. As regards 2 cars which were also included in the list of properties claimed in the plaint, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kangra district who owned a tea estate in tehsil Palampur and occasionally visited Hoshiarpur, and through her good office was married to Ram Piari, who was the daughter of one Chandar Bir, an employee of Raj Kumari working in her tea estate. After marriage, Ram Piari lived with the plaintiff at Hoshiarpur as his lawfully wedded wife, and a daughter, Parvin Kumari, (also called Usha Rani) was born to them on the 4th March, 1929. Raj Kumari had great attachment towards Ram Piari and often used to pay visits to Hoshiarpur to meet her. In the year 1934-35 (no date is mentioned in the plaint; but this year is mentioned in the plaintiff's evidence), Raj Kumari took Ram Piari from the plaintiff's house with belongings of every description on the pretext of taking her out for recreation. Ram Piari did not like going round with Raj Kumari and though she wanted to come back to the plaintiff she had not the courage to disobey Raj Kumari, and in fact Ram Piari and Raj Kumari in hardly hated one another during the last years the former's life. In the year 1941, Ram Piari died may Hospital at Lahore, leaving the properties dispute which had been acquired by her by good management wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, care of plaintiff in 1932 and has been receiving correspondence, care of the plaintiff which shows that she approved of the plaintiff's alliance with Ram Piari,..... Paras Ram, a younger brother of Ram Piari, lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija-a common name for sister's husband. From 1930 to 1934 Paras Ram read in the D. A. Y. High School at Hoshiarpur and Exhibits P. W. 6/1 to 6 are copies of entries in the registers of the school regarding applications which were given by Gokal Chand, plaintiff, for admission of his ward Paras Ram, son of Chandar who was described as his sala (wife's brother). R. W. 6 Lala Bishan Das, teacher, has filed these copies. His sister's house was adjacent to the house of the plaintiff and he had occasions to see Ram Piari giving and being treated as wife by the plaintiff during those years". 10. Upon the evidence to which reference has been made, the trial court came to the conclusion that Ram Piari was the legally married wife of the appellant. 11. The learned judges of the High Court however found the evidence of the 4 witnesses who claimed to have been presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari. In the first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajonha, or any co-villagers whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him. He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show. It was suggested in the courts below that since defendant No. 2 is an influential person, no local witnesses would be available to support the plaintiff's case, but the High Court has very fully death with this aspect aspect and pointed out firstly that Raj Kumari had litigation with a number of person belonging to Palampur and such persons would not be under her influence, and secondly that no good reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Piari, should take a completely hostile attitude towards him. Then again, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut should take in marriage a Gurkha girl who was born of very poor parents and belonged to a place far away from where he himself lived. 14. The fact that Paras Ram lived with the plaintiff for some time and addressed the latter as jija, and that the plaintiff described himself as guardian and brother-in-law of Paras Ram, is as consistent with the defence version as with the plaintiff's. If Paras Ram's parents had been in affluent circumstances so as to be able to maintain and educate him, the case would have been different, but there is evidence to show that Chandar Bir was very poor and both his wife and daughter had to work as servants of Raj Kumari to earn their living. 15. In our opinion, the conclusion arrived at by the High Court has not been shown by the plaintiff to be incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence the plaintiff has not succeeded in establishing that Ram Piari was his legally wedded wife. 16. In the view we have taken, it is not necessary to deal with the question whether succession to the properties in dispute will be governed by customary law or by Hindu law, but since it was argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that if affect adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See Beg v. Allah Ditta A.I.R. 1916 P.C. 129 at 131., Saleh Mohammed v. Zawar Hussain; Mt. Subhani v. Nawab. (6) When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principle occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists See Muhammad Hayat Khan v. Sandhe Khan and Others (1906) 55 P.R. 270, Muzaffar Muhammad v. Imam Din. I.L.R. (1928) Lah. 120 (7) The op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the "Riwaj-i-am" upon which the plaintiff relies. If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife in regard to the wife's self-acquired property may not be very grab. But even if it be assumed that Ram Piari was law-fully married to the plaintiff, the serious question to be decided would be whether succession to the property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her husband' family and not her own. Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to device its force from long usage. As we have pointed out, a custom in order to be binding must derive its forced from the fact fact that by long usage it has obtained the force of law; and if an occasion never arose to apply the rule of succession invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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