MUSAMMAT DHOLA KUAR Vs. MATHURA SINGH

JUDGEMENT

(1.) WE are of opinion, that this appeal should be allowed. The point that was taken in the case was that, in the particular community in question to which the parties belong, the daughter of a Hindu did not inherit any part of the family property. There was a Record of Rights put forward in defence, which contained the following sentence: "Musalman haq duhhtari dete hain: Hindu nahin dete. (The Muhammadans give to their daughters the rights due to them, but Hindus do not)," Mr. Uma Shankar Bajpai has said very fairly that that document is his sheet anchor. Besides that document, four witnesses went into the witness-box and deposed to what they said was a recognised custom, to the effect that a Hindu daughter had no right of inheritance. That custom," if it exists, is, of course, in contravention of the prevailing rule of Hindu Law. A custom is, in our opinion, a matter which has to be proved with more thoroughness and with greater precision than a case which merely affects the parties who are on the record and does not adversely affect parties who themselves are not present in Court, but are nevertheless interested by virtue of belonging to the same community. There is no doubt whatever that the view which has been taken by this Court is that, in second appeal, the Court may, and indeed should, consider whether the evidence, that is brought forward to prove a custom is not only legally admissible evidence, but whether the sum total of that evidence, regarded from the point of quantum, is of sufficient weight to justify the Court coming to a conclusion that the custom has been proved. Now, there is no doubt whatever that if the custom, as set out in the Record of Rights, does prevail amongst this community, there could have been a very much better quality of evidence and a very much greater body of evidence forthcoming and it behoves every person who is alleging a custom, and who is seeking for the first time a judicial decision on that alleged custom, to leave no stone unturned to prove the fact of that custom most definitely, most clearly, and most fully. That has not been done in this case There has been, as we have said, the Wairb-ul-arz and there has also been the evidence of four witnesses; and though every thing that those four witnesses said was admissible in evidence we have come to the Conclusion that, though admissible, it was not of that weight that is necessary in order to prove a custom which will disturb and upset the ordinary presumption of Hindu Law, WE do not say that a custom of this kind does not exist amongst this community: what we are saying is, that in this particular case there has not been such clear, full and cogent evidence as to make it proper for us to dismiss this appeal. WE, therefore, are of opinion that, notwithstanding that the Subordinate Judge came to the conclusion that the alleged custom had been proved and that a Judge of this Court of long experience as a Practitioner of the Bar thought that he ought to affirm the decision of the Subordinate Judge, we feel that it is important from a public point of view that it should be generally recognised that these cases of custom have to be proved with care and thoroughness. For these reasons we allow the appeal, set aside the decree of the Judge or this Court and of the lower Appellate Court, and restore that of the Court or first instance with costs throughout.