MUL CHAND Vs. SMALL TOWN COMMITTEE

JUDGEMENT

(1.) The principal point for decision in the present case is whether a certain debt contracted by the father of the contesting defendant is of the nature of an avyavaharika debt that is a debt which a Bon is under no legal obligation to pay. It appears that one Churanji Lal was unable to account for certain sums of money which came into his hands in his capacity as the treasurer of the Small Town Committee of Dharamkot. The Committee brought a suit against him for the recovery of the moneys which were said to have been misappropriated and obtained a decree in a sum of Rs. 8663-5-0 on account of principal and Rs. 1088- 14-0 on account of costs. This was on 28 August 1939. The house of Churanji Lai was attached on 31 May 1941 and his land was attached on 13 June 1941. Mul Chand a son of Churanji Lai thereupon preferred an objection to the attachment on the ground that the property in dispute had been bequeathed to him by his grandfather Daya Ram and consequently that he and not his father Churanji Lai was the owner thereof. This objection was allowed and the property released from attachment on 20 December 1942. The Committee were dissatisfied with the order and brought the present suit for a declaration that the house and the land in dispute are liable to attachment and sale in the execution of their decree against Churanji Lal.

(2.) The Committee alleged that Daya Ram, his two sons Churanji Lai and Kishori Lal and his grandson Mul Chand were the members of a joint Hindu family, that the property in dispute along with certain other property belonged to the members of this joint family, that though Daya Ram had died some time ago the remaining three persons continued to be members of the said family, and that the Committee were entitled to proceed against the undivided interest of Churanji Lai in the property held jointly by him, his brother and his son. The defendants controverter these allegations by stating that Day a Ram and the members of his family were governed by custom; that they were not members of a joint Hindu family; that even if they were members of a joint Hindu family at one time, Churanji Lai had been separated several years before and Kishori Lal in the year 1939; that the property had been bequeathed to Mul Chand by his grandfather Daya Ram that the debt in respect of which a decree had been passed against Churanji Lal was illegal and immoral and consequently that the rule of pious obligation of a son to pay his father's debts does not apply in the present case. The trial Court found in favour of the Committee and granted the decree prayed for. This decision was affirmed by the Additional District Judge in appeal. Mul Chand has come to this Court in second appeal and the question for this Court is whether the Courts below have come to a correct determination in point of law.

(3.) The first point of law arising in the present case is whether the defendants who are Brahmins of Dharamkot are governed by custom in matters of succession. The initial presumption in the case of Brahmins is that they are governed by their personal law, and the burden of proving that they are regulated by custom lies heavily upon them. The defendants have sought to rebut this presumption by stating, (a) that the family depends almost exclusively on agriculture and (b) that the village in which the land is situate has a Brahmin lambardar. These two facts are, in my opinion, wholly insufficient to establish that the defendants are governed by custom. As many as twelve tests have been laid down for determining whether a tribe not primarily agricultural follows custom or personal law and one of the most important tests to be applied in such cases is whether the particular caste does or does not form a compact village community. The defendants in this case have fulfilled only two conditions. Not a single instance has been cited in support of the allegation that this family is governed by custom. It is true that in the case of Ram Ditto V/s. Bishen 123 P.R. 1879 which relates to this family, certain observations were made that agricultural Brahmins in the Punjab are not governed by strict Hindu law, but this judgment cannot be regarded as binding on this Court. The Courts below have come to the conclusion, with which I find myself in complete agreement, that the defendants are governed by Hindu law. Assuming for the sake of argument that the Customary law is applicable to the facts of the case, it seems to me that even under the provisions of that law Daya Ram had no power-to transfer the property to Mul Chand by means-of a testamentary disposition.