JAI DATT TEWARI Vs. DAYA RAM PANT

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. The vendor was one Bhola Datt, son of Trilochan, born admittedly of a wedded wife of Triloehan. The vendee is a stranger to the family, and the plaintiff is Jai Datt, who is the son of Trilochan born of a dhanti woman. Both the plaintiff and the vendee are co-sharers on an equal footing, both apparently residing in the same village. The plaintiff claimed preference over the vendee on the ground that he was the brother of the vendor. The defendant in his written statement did not admit this fact and specifically pleaded that the plaintiff is not a legitimate son of Triloehan who belonged to a caste in which sons by a dhanti wife had no right of inheritances and that the plaintiff being the son of a dhanti wife could not claim kinship with the vendor. The trial Court framed an issue as to whether the plaintiff was a legitimate brother of the vendor and also as to whether, if not so, the plaintiff was entitled to claim pre-emption, being a relative of defendant 2 within three degrees. The Court also notes that the burden of proving this was on the plaintiff. The plaintiff neither went into the witness-box himself nor produced any witness to show either that he was the legitimate son of Triloehan born of a recognised wife, or that under the customary law he was entitled to preference on account of his being a brother though born of a dhanti wife. He merely produced copies of revenue papers showing that in the village Pajena his name was entered against the share apparently left by Triloehan in equal shares along with his other brothers. He however got certain facts elicited from the cross-examination of the defendant's witnesses on which reliance was placed. The defendant produced one Lachhimi Datt, about 68 years of age, who is a cousin of the vendor by relation.

(2.) This witness distinctly stated that Bhola Datt (vendor s) mother was the wedded wife and Jai Datt's mother was not a wedded wife, and stated that among his people sons from kept wives did not get a right in the ancestral property, but they can be given rights in the self-acquired property at the will of the father. He asserted that the status of his people was like that of high caste Brahmins and that these Tewaris were considered to be the descendants of Sah Chand Tewari. He further stated that Jai Datt acquired rights in some other villages by a will. The share in dispute is situated in village Pajena which appears to have been divided among the three sons equally in the lifetime of Trilochan. In cross-examination Lachmi Datt Tewari merely admitted that a deed of partition had been drawn up which had been prepared between the three brothers and that they got equal shares. Another witness for the defendant, namely, Bagh Singh stated that although he did not know where Jai Datt's mother came from, but he knew that she was a dhanti wife, and that Bhola Datt and others did not inter-dine with Jai Datt and that Bhola Datt was a high caste Brahmin Tewari. In cross-examination , he admitted that Trilochan had given equal shares to his three sons in village Pajena during his life time and that Trilochan had considered Jai Datt as his son and had treated him as such, and that others also had treated Jai Datt as the son of Trilochan. One of the witnesses for the plaintiff who was produced for another purpose admitted in cross-examination that Jai Datt was the son of a Dhanti wife, that his father Trilochan was a good high caste Brahmin, but he did not know whether dhanti wives sons inherit amongst the Tewaris or not.

(3.) The learned Subordinate Judge has held that on this evidence it is not established that the plaintiff was the legitimate son of Trilochan and that in fact it is proved that he was the illegitimate son of Trilochan, and accordingly is not a brother or relation of Bhola Datt vendor, entitled to preference over the vendee. In appeal reliance is also placed on certain statements contained in Mr. Panna Lal's book on Kumaun local customs. It is a reprint of the report submitted by him to the Commissioner of the Kumaun Division. Mr. Panna Lal was employed as a special officer to make enquiries and report. The book as printed does not show that it has been accepted by Government as an authoritative collection of the local customs in Kumaun. At p. 2 of this book it is stated that sons by a woman kept as wife (whether married or not) inherit fully like legitimate sons-Standing by itself it would be too sweeping a statement. There is however an exception added that sons by dhanti, or other wives with whom no marriage ceremony has been gone through get no share in the inheritance in castes mentioned in list A. By implication it is argued that sons of dhanti or other wives with whom no marriage ceremony might have been gone through would get shares in every other case. At p. 5 several kinds of conjugal relationships are mentioned which include a dhanti wife, i.e., the widow or the relinquished wife or another kept as a concubine, as well as a ploughman kept as a husband by a widow in her old home. At pp. 6 to 8 different forms of marriages, no less than 12 in number, are mentioned. Apparently this would indicate that these various forms of conjugal relationships are to be found in the Kumaun Division. It does not necessarily follow that all these forms of marriages would necessarily be allowed among all castes, much less among the high caste Brahmins. Now list A contains a list of certain special sections of Brahmins, Kashatriyas and Vaishyas, among whom Tewaris, who are the legitimate descendants of Sah Chand Tewari, are also mentioned.