PREM DAS AND ANOTHER Vs. UTTAM DAS

JUDGEMENT

(1.) This second appeal raises an interesting question as regards the validity of a custom prevailing in tire community of Domes in the district of Tehri Garhwal. It arises in this way. The plaintiff respondent is admittedly the son of one Smt. Thumma who was the widow of one Som Das. The appellants are collaterals of Som Das being the grandchildren of one Kaldo who was the uncle of Som Das aforesaid. Som Das died young leaving behind a young issueless widow namely Smt. Thumma aforesaid. In accordance with the custom prevailing amongst the members of tire community to which the parties belonged, Smt. Thumma took one Kamal Das as her Kathala. Kathala is a person who is taken by a widow after the death of her husband for procreating children for her deceased husband. Commentators say that the widow is permitted by the custom to do this in order to continue to remain in the home of her deceased husband with a view to procreating children for her deceased husband as also for the purpose of preventing the property of her deceased husband from being claimed by others. According to the custom which is also known as "Tekwa" or "Tikwa" sometimes even during the lifetime of the husband a woman with the consent or at the instance of the husband, takes another man for procreating children for her husband. This latter practice was followed, where the husband was found impotent or otherwise infirm or incapable.

(2.) Out of the union of Smt. Thumma and Kamal Das, Uttam Das, the plaintiff was admittedly born. Uttam Das filed the present suit against the appellants and claimed that under the custom mentioned above he had become entitled to all the rights of Som Das and was, therefore, entitled to the agricultural property which belonged to Som Das.

(3.) The suit was contested by the appellants who questioned the existence of the custom and the right of the plaintiff to inherit the property of Som Das. They also alleged that Smt. Thumma had left her deceased husbands home and gone over to live with Kamal Das aforesaid and that consequently the plaintiff was not entitled to rely on the custom of Kathala mentioned above, even if it be assumed that such a custom did exist.