Kishori Lal vs Pannu Ram

Passey, J.—This second appeal by Kishori Lal Defendant is directed against the decree of the District Judge, Patiala dated 4-3-06 affirming that of the trial Court decreeing the plain-tills'' suit for declaration. Jiwa Ram, a Gaur Brahman, of village Hassanpur, Tehsil Rajpura, District Patiala, by a registered deed dated 5-8-1990 appointed Kishori Lal as his heir. In that document it was specified that the appointee would succeed to the estate of the appointer on the latter''s death. On 4-6-2000 Punnu Ram and Ganga Ram residents of village Lochwan, collaterals of Jiwa Ram in the 5th degree, sued for a declaration that the appointment of Kishori Lal (loosely called adoption) would not affect their reversionary rights. Dhani Ram and Babu Ram who had been originally arrayed as ''pro forma'' defendants were transposed to the Plaintiffs'' side as they were also collaterals of Jiwa Ram and disputed the adoption of Kishori Lal.

Both the Courts below have held that the property which would be affected by the adoption is non-ancestral qua the Plaintiffs and that the adopter was not governed by custom but by his personal law. Shri Puran Chand, learned Counsel of the respondents, has candidly admitted that the Plaintiffs have failed to prove the property left by Jiwa to be ancestral. The case, as mentioned above, involves the question of custom versus personal law and it has to be seen if the decision of the Courts below is founded on facts established by evidence. I would have accepted their conclusion if I had not found that material evidence both documentary and oral had been ignored or misread. The parties being of the highest caste amongst Hindus would have been, but for the dubious assertion of the Plaintiffs themselves, presumed to be governed by Hindu Law and the burden of proving to the contrary must have lain upon the person pleading to the contrary. In the plaint it was not specifically urged that Jiwa Ram and the Plaintiffs were governed by Hindu Law. It was stated in para (3) that the adoption of Kishori Lal was invalid according to custom and law. In similar words was the reply of the Defendant couched as he said in his written statement that his adoption was valid according to custom and law. The trial Court in view of these pleadings struck the issue as to ''whether the parties were governed by Hindu Law or custom in matters of adoption'' and cast the burden of proving it on the parties.

The Plaintiffs examined four witnesses, namely, Hira Singh, Telu Ram, Basdev and Nasurddin Patwari. and produced two documents being certified copies of the judgments of the Naib Nazims of Rajpura and Patiala., The proof adduced by the Defendant consists of the statements of four oral witnesses including that of Nasurddin Patwari and certified copies of Revenue records and two judgments of the High Court of Patiala. The Courts below have dealt with the evidence as if Jiwa Ram belonged to village Lochwan. In fact, he was a resident of Hassanpur. No doubt he owned land in Lochwan as well. What is required to be determined is whether the Gaur Brahmans of village Hassanpur follow their personal law or they have abandoned that law in favour of custom. The Kaifiat Dehi of village Hassanpur pre pared during the last regular Settlement shows that Bakhsu and Jantu, founders of the village, had run into arrears of the State. Nazrana due from them and that the ancestors of the Brahman landowners in the village had acquired the founders proprietray rights on payment of that Nazrana. The Brahman landowners of this village are all of the Gaur sub-caste and they own 1/4th of the village area.

The Kaifiat Dehi of village Lochwan also shows that the Brahmans had settled in that village along with its founder. It is clear from the statement of Nasiruddin Patwari that the Brahmans have a share in the village Shamlat proportionate to their proprietary holdings and that they belong to a notified agricultural tribe. In matters of succession the family of Jiwa Ram has been following custom. There have been instances of'' widows succeeding to collaterals of their husbands along with their (collaterals of their husbands) collaterals. On the death of Raja Ram mutation of his land was sanctioned on 2.2-8-1964 in the names of his surviving collaterals and the widows of his collaterals representing their husbands. Similarly on the death of Sawan Ram his property was mutated in the name of the widows of his collaterals along with his surviving collaterals. These instances make it manifest that in matters of succession the Brahmans of Hassanpur have deviated from the rules of Hindu Law.

The defendant, as observed above, has placed on the file two judgments of the Patiala High'' Court. In both these cases adoptions by male owners were challenged and it was held by the High Court that Gaur Brahmans of village Bathonia were governed by custom. Bathonia is only a couple of miles from Hassanpur Out of the judgments relied upon by the Plaintiffs one is by the Naib Nazim Rajpura dated 26-10-1986 in - ''Bir Bhan v. Mohan lal'' and the other by the Naib Nazim, Patiala dated 32-4-1984 in - ''Rulia v. Baru''. The former case related to Gaur Brahmans of Khaspur and the latter to Gaur Brahmans of village Sonolian Both Khaspur and Sonolian are in the Rajpura Tehsil. Sonolian is only 11/2 miles distant from Hassanpur while Khaspur is nine miles away. In these two cases also Gaur Brahmans were held to be governed by custom. Babu Ram, Jai Ram, Ram Dial and Nasiruddin Patwari produced by the Defendant have proved that the Gaur Brahmans of villages Hassanpur and Lochwan cultivate land with their own hands and that they live upon agriculture.

The first three witnesses have also stated that custom prevalent amongst Brahmans permits the appointment of heirs and widow remarriage. There is another aspect of the case which has its own significance and importance. Jiwa Ram adopter had died issueless before the present suit was brought. He had left no widow either. The Plaintiffs were in that case entitled to the relief for possession but they brought a declaratory suit only stating that they could not ask for possession as Mst. Parbhi, widow of Jiwa Ram''s brother, was alive. Obviously if they were governed by their personal law, the existence of Mst. Parbhi could not stand in their way to obtain possession of Jiwa''s estate immediately. Mst. Parbhi''s presence could not postpone their right to immediate succession. The defendants have produced three witnesses, one out of whom does not belong to their tribe and the other Telu Ram comes from a different village Shukalpur while the third witness Basdev is a Brahman of Lochwan who has described himself as agriculturist by profession.

From the facts and evidence described above the conclusions are irresistible that in villages Hassanpur and Lochwan customary law generally prevails, that the Gaur Brahmans of these villages settled there with the founders not in the capacity of priests but as owners by purchase, that in Hassanpur they are owners of 1/4th of the area and in Lochwan they own about three Hals of land, that in both the villages they have a proportionate share in the Shamlat, that they cultivate land themselves and their main occupation is agriculture, that they have been long associated with and are primarily dependent on agriculture, that they form a compact village community or at least an important compact section of the village community and that they are notified agriculturists in the Rajpura Tehsil. There is no evidence that they wear the sacred thread or regard widow re-marriage with disfavour. There is again no evidence that they are connected with non-agricultural Brahman families or that they follow non-agricultural vocations. The Kaifiat Dehi of village Lochwan shows that the Brahmans have been residing and owning land in that village for the last one thousand years.

In face of the above stated material on the record it must be held that the Gaur Brahmans of Hassanpur follow custom in matters of alienation and adoption and that since the property in the hands of Jiwa Ram was non-ancestral qua the Plaintiffs, he could validly appoint Kishori Lal as his heir. I consequently accept the appeal and dismiss the Plaintiffs'' suit. The parties will, however, bear their own costs.