DHARAM SINGH Vs. HIRA

JUDGEMENT

(1.) The following pedigree will show the right under which the parties to the suit are litigating:

(2.) Baldeo Singh, the grandson of Sahab Rai is stated to have died long ago, leaving him surviving his brother Gopal Singh and his widow Musammat Rukman. She, after the death of her husband, lived with Gopal Singh as his wife by Karao marriage. The parties are Jats, and such a form of marriage is permissible in their community. Gopal Singh died about forty rears ago. After the death of Gopal Singh, the name of Mussmmat Rukman was entered in the revenue papers in respect of the immovable property of the two brothers. She died on the 10 of July, 1915, without leaving any issue. After her death, there was a dispute in the Revenue Court between the descendants of Jaisukh and those of Nathua as to whose names should be entered in respect of the property which at one time belonged to Gopal Singh and Baldeo. The Revenue Court decided in favour of the descendants of Sheo Ram, and their names were accordingly mutated. Thereupon, on the 19 of September, 1917, the suit out of which this appeal has arisen was instituted by Dharam Singh and Kartar Singh, two of the grandsons of Jaisukh, for the recovery of the possession of the entire property of Gopal Singh and Balden Singh as the nearest reversioners. The claim was brought against the descendants of Sheo Ram who had been successful in the Revenue Court. The defendants resisted the suit on various pleas, two of which were that under an arrangement entered into between the descendants of Nathua and Jaisukh on the death of Baldeo Singh half of the property of the two brothers had been allotted to the descendants of Jaisukh and the other half was to go to the descendants of Nathua after the death of Gopal Singh and Musammat Rukman, and, secondly, that under a custom obtaining in the family to which the parties belonged, all the collaterals irrespective of their degree succeed equally to the last male holder. Both parties gave evidence. The court of first instance found that the family arrangement set up by the defence had not been proved. The custom advanced on behalf of the defence, however, was accepted by the court and a decree in favour of the plaintiffs to the extent of l/4 in the property in suit was passed. The plaintiffs have come up in appeal before us and challenge the finding of the court below on the question of custom, whilethe defendants have filed cross-objections impeaching the finding of the lower court with regard to the alleged family arrangement stated in the written statement for the defence. It is contended on behalf of the plaintiffs appellants that the evidence on the record does not establish the custom upon which the defence relies for the proposition that all collaterals irrespective of degree succeed equally to the last male holder. The learned Counsel for the appellants has read to us the evidence on behalf of the defence and has criticized it at length. We find that eleven witnesses were examined on behalf of the defence, all of whom with one voice say that the custom prevailing among the Jats who have migrated to Meerut from the Punjab, as to the succession of collaterals, is that reversioners irrespective of degree, that is, whether near or remote, inherit. They go on to explain in their evidence that when they say that reversioners succeed equally to the last male holder, they mean that each branch takes its share per stirpes. They also give instances, most of which are borne out by the khewats that have been tendered in evidence by the defence. One of the plaintiff s, Dharam Singh, himself had deposed in support of this custom in another case. In the present case he went into the witness-box and tried to explain his previous statement away but he failed. One of the witnesses for the plaintiffs, namely Phul Singh, also supports the case for the defence. On the evidence as it stands on the record we find that the custom stated by the defence stands proved, The oral evidence for the plaintiffs is quite unsatisfactory and does not rebut the evidence for the defence. Moreover, we find that the custom deposed to by the defence witnesses is borne out by the customary law as enunciated in paragraph 25 of Mr. Rattigan's book "Digest of Customary Law for the Punjab." We are, therefore, of opinion that the finding of the lower court on this point is correct.

(3.) As to the cross-objections the arrangement "set up on behalf of the defence is not borne out by any evidence worth the name.