TULA RAMSAH JAGATI Vs. SHYAM LAL SAH THULGHARIA

JUDGEMENT

(1.) This is a Reference under Rule 17 of the Kumaun Rules by the Local Government for the opinion of this Court.

(2.) The facts, which have given rise to this Reference, are briefly these: A Hindu resident of Kumaun, by caste a Vaisa, namely, Lachi Ram, died and he was succeeded by his wife Musammat Nimja. He left him surviving, besides the wife, a daughter and two daughter's sons. The daughter's sons were the defendants in this suit out of which this Reference has arisen. At the time when Nimja died, three of the brothers of Lachi Ram were living, namely, Tula Ram, the plaintiff, and Parsi and Gangi, the respective fathers of the two other plaintiffs. The plaintiffs claimed that by the custom obtaining in Kumaun they were entitled to the property of Lachi Ram to the exclusion of his daughter's sons. To this claim the defendants filed a written statement and denied the existence of the custom. They pleaded that they were entitled under the Hindu Law to succeed to the grandfather. They never stated that they had come from any other part of the country or that they had carried with them any local law or local custom.

(3.) The learned District Judge of Almora heard the evidence, discussed it and came to the conclusion that the evidence produced by the plaintiffs was not sufficient to establish the custom which they had pleaded. There was an appeal to the High Court of Kumaun, and the learned Commissioner, who presided over that Court, was of opinion that the plaintiff ought to succeed. It appears that the Local Government deputed Mr. Panna Lal, I.C.S., to enquire into and collect the customs that were prevailing in Kumaun. Mr. Panna Lal has accordingly written a book in which he has stated the different customs which he found prevailing in that area. The learned Commissioner was of opinion that in view of the fact that a record of custom was made by Mr. Panna Lal after an elaborate enquiry, he was entitled to accept the statements in the book as affording good prima facie evidence of the law prevailing in Kumaun, in preference to the law as found in the Hindu text books. He accordingly threw the burden of proof on the defendants to establish that they were entitled to succeed in the teeth of the Kumaun custom, namely the custom which excluded a daughter or daughter's son from inheritance. The learned Commissioner also examined the evidence on record, and was satisfied that a custom had been established to his satisfaction.