S GOBIND SINGH Vs. KESHO RAM

JUDGEMENT

(1.) This second appeal has arisen under the following circumstances:

(2.) One Panna Lal obtained a money decree against Gurbachan Singh in the year 1934. After the judgment-debtor's death execution was taken by Chaudhri Kesho Ram, a transferee of the original decree-holder against Lalji his son and one-half of a house situate in Sangrur representing the share of the deceased judgment-debtor was attached. S. Gobinder Singh father of Gurbachan Singh objected to the attachment and his objection petition being dismissed he brought the suit giving rise to this appeal for a declaration that the house could not be proceeded against, because under custom which his family followed, his son Gurbachan Singh who predeceased him or his grandson Lalji could not claim any interest in it. An alternate plea was also taken that oven under the personal law the house or any share in it could not be attached or sold in execution of a personal decree against his deceased son even though the latter had left a son. The decree- holder contested the suit on all the grounds. Lalji who was then a minor was represented by a guardian appointed by the Court. He resisted the suit on the ground that under Hindu law by which they were governed, the grandson was entitled to one half share in the house. It may be mentioned here that Lalji has now attained the age of majority and is represented by a separate counsel B. Dalip Chand. He now falling in line with his grand father, wants to go back from the plea taken by his Court guardian and supports the present appeal. An application for this purpose has also be on his behalf, But in the light of the decision arrived at in the case it is of no importance and no further reference need be made to it. The trial Sub-Judge found that the family of the Plaintiff was governed by Hindu law, according to which share of Lalji in the house must be deemed to be property of the deceased in his hands, arid that the presence of the Plaintiff, the father of the deceased did not create any difference. He was further of the opinion that oven if the Plaintiff be held to be governed by custom, it had not been proved what that custom was or that under it a son had no share in the ancestral property of his father in the latter's life-time. The suit was consequently dismissed. On appeal by the decree. holder, the learned District Judge, Sangrur agreed with the trial Sub Judge that the plain. tiff was governed by Hindu law and that under it the attachment was unassailable. He accepted the proposition that the Plaintiff being a lat originally belonging to a village in Ludhiana District; would be presumed to be governed by custom of the place; but on facts he found that the presumption had been rebutted and that it had been proved that the Plaintiff had abandoned that custom and had adopted his personal law by migrating to Sangrur and by taking up service which was his main source of livelihood. He, however, did not agree with the trial Sub- Judge that under custom also the house was validity attached, because he was of the opinion that the general custom of the Punjab would be presumed to apply unless any special custom to the contrary was alleged and proved. He further found that under the general custom, a son or a grandson had no interest in the property of his father or grand-father in the latter's life-time, Holding the Plaintiff to be governed by Hindu law he dismissed the appeal with costs. This is Plaintiffs' second appeal.

(3.) It is vehemently contended by Rai Bahadur Anant Ram the learned Counsel for the Appellant that there was an initial presumption in favour of the Plaintiff being governed by custom and that the presumption was in no way rebutted by the facts relied upon by the District Judge. After a careful consideration of all the facts on record, I am of the 6pinion that the contention must be accepted.