RATILAL NATHALAL Vs. MOTILAL SANKALCHAND

JUDGEMENT

(1.) The question in dispute in this second appeal is one of the right of succession to the estate of a Hindu child widow who died at the age of nine years on July 9, 1913, and without issue. She belonged to the Kadwa Kunbi caste and had been married as a child to the plaintiff in the suit. Her father predeceased her leaving no male issue, and consequently she succeeded to his property.

(2.) But a question that has arisen on her death is, does this property go to the plaintiff as the heir of his deceased wife Kamla, or does the property pass to her own blood relations on her father's side ? It common ground that under ordinary Hindu law the plaintiff would take as her husband, but a special custom is set up by the defendant who claims to be her heir on her father's side, that in this particular caste where a married woman dies under such circumstances without issue, the property reverts to her father's family and does not pass to her husband, The onus of proving such a custom, being as it is a departure from the ordinary Hindu law which would otherwise govern the parties, rests clearly on the person who alleges it, viz., the defendant. Moreover, it is equally well-established that in order to prove such a custom, it must be shown to be ancient and invariable, and also be such that there is nothing unreasonable or contrary to public policy in the Court giving effect to it.

(3.) Both the Judges in the lower Courts were members of the Hindu community, and in the trial Court the learned Extra Joint Subordinate Judge dealt at great length and with great care with the voluminous evidence that was brought before him. I appreciate to the full the following observation he has made, viz.: " The evidence is voluminous and rather likely to hypnotise and be tedious and monotonous, as it involves a detailed investigation of the devolution of property in this community which is by no means an insignificant proportion in this province. There is considerable risk of confusion." I also in similar cases of custom have felt as a trial Judge the difficulty of giving to others a clear analysis of the evidence put before the Court. But the judgment of the learned trial Judge appears to me to be particularly lucid in this case. He has given us summaries of the various instances. He has given us certain cross reference to show from which particular town or district the various witnesses come He has also divided up the evidence into two main portions, viz. , one summary which relates to property which the girl inherited from her father, and another summary which related to cases where the girl was given presents of ornaments and clothes by her father or relations in her lifetime and where those ornaments and clothes or some portion of them went on her death not to her husband, but to her father or her relations in her father's family.