Shimbhu Nath v. Gayan Chand

Sir John Edge, C.J and Banerji, J.:— The plaintiffs in the suit are appellants here. The suit is brought to obtain a decree for possession of and certain declarations in respect of certain property which was given by one Musammat Gulabi to the defendant. Gulabi died before the suit. Her husband had died before she made the gift. Her husband Sant Lal was a nephew of the plaintiff's. They claim to be entitled to this property as the next reversioners and allege that their right arose on the death of the widow. The parties are Jains, being Agarwala Banias of the Saraogi sect. They live in the district of Saharanpur. The property claimed is immoveable property. The District Judge in appeal found that by the custom of this sect and caste of Jains a widow had an absolute power of disposal over the property left by her husband, whether that property was ancestral or self acquired by the husband. On behalf of the plaintiffs it is contended that there was no evidence on which a Court could come to the findings at which the District Judge arrived. That there was something which may be called evidence appears by the record and his judgment, but we apprehend that a Judge when trying a case by himself is bound to act in a similar way with regard to evidence as he would be bound to act if he were trying the case with a jury: for example, where it would be the duty of a Judge to direct a jury that the evidence before them was, not evidence upon which they could find as to a certain issue, he would be bound, when trying the case by himself, to deal with that evidence as insufficient to enable him to come to a finding on that issue.

Now there was evidence given as to three transactions in this family with the object of showing that a Jain widow of the Agarwala Bania caste and the Saraogi sect had an absolute power to dispose of not only the self acquired but also the ancestral property of her deceased husband to which she had succeeded. The first piece of that evidence was that a member of this family, one Musammat Parmeshri, the widow of one Sujji, had made an alienation; but it appeared that in making that alienation she had been [381] joined as alienors by all her deceased husband's brothers, who were the nearest reversionary heirs. That is no evidence of the custom. It is in fact, so far as it goes, evidence from which it might be inferred that the widow had no power to alienate by herself the property which she alienated in that case. The other two cases had reference to the transactions of one Musammat Hardevi. In one case she sold some property and handed over the proceeds to her son-in-law. In the other case, she made a deed of gift in his favour, but never gave him possession of the subject of the gift. The latter case of course proves nothing, except that the lady did not carry out her intention. The case in which the lady sold the property and handed over the proceeds to her son-in-law affords evidence of so flimsy a kind that it would be the duty of the Judge not to leave it to the jury on a question of custom, particularly when it appears, as was the case there, that the nearest reversionary heir was only seven years old at the time. In our opinion evidence such as that afforded by these three instances was not evidence which could in any sense be considered as sufficient to entitle either a Judge or a jury to find the alleged custom.

We now come to the other evidence in the case, which consisted of judicial decisions. It appears from the judgment of the District Judge that part of this property was ancestral and part was non-ancestral. Now we shall deal with the question of custom as to the part which was non-ancestral first. In the case of Sheo Singh Rai v. Dakho and Murari their Lordships of the Privy Council held on the evidence in that case that there was a custom amongst Jain Agarwala Banias of the Saraogi sect according to which a widow had full power to alienate the self-acquired property of her deceased husband. In our opinion the property which was non-ancestral in the present case must be regarded for the purposes of this suit as subject to that custom.

It was contended by Mr. Ram Prasad for the appellant that the fact that this custom had been established in Sheo Singh Rai's case was not sufficient evidence to support the finding of the District [382] Judge on that part of the case. There was no evidence to the contrary, and the custom which was proved there was not proved as the custom of any particular family, but as the custom, in these Provinces certainly, of that sect of Jains, and in our opinion that ruling was very strong evidence of the custom. We hold that the judgment in question did afford evidence that Musammat Gulabi had power to make a gift of the property which was not ancestral property. We do not regard what was said by their Lordships of the Privy Council in the case of Ghotay Lall v. Chunnoo Loll as meaning that in a case in which the question was merely whether an Agarwala Bania widow of the Saraogi sect could alienate property, the finding in Sheo Singh Rai v. Dakho would not afford sufficient evidence of a custom to support the alienation, but we regard the observations of their Lordships in that passage as an answer to the much wider application by Mr. Cornell in his argument of the judgment in Sheo Singh Rai v. Dakho.

The only judicial decisions to which we have been referred by Pandit Sundar Lal on behalf of the defendant-respondent in support of the proposition that in this sect and division of the Jains a widow can by custom alienate the ancestral property of her deceased husband were two case referred to in the judgment of this Court in Sheo Singh Rai v. Dakho. The first was that of Hoolas Rae v. Bhowani. In that case the Sadr Diwani Adalat had set aside the judgment of the Court below on the ground that it had been arrived at on evidence not taken upon oath. The evidence consisted of the answers of certain hankers of the Saraogi sect resident at Delhi. The Sadr Court remanded the case with an intimation that fresh commissions should issue, not only to Delhi but to Benares and any other place in the North-Western Provinces in which Jains were known to reside. There was in fact no further judicial decision of the matter, as the parties referred their dispute to arbitration, and the arbitrators, on some ground of which we are not in formed, decided in favour of the alienation made by the [383] Jain widow. That case does not in our opinion afford evidence upon which a Court would be entitled to depart from the ordinary rules of Hindu law on such an important matter as a widow's rights in dealing with the ancestral property of the family.

The other case was that of Behari Lal v. Sookbasi Lall. We have looked at the record in that case, and we find that there the Judges expressed a view that families of the Jain sect are not bound by the Hindu Shasters. We may remark that view is only correct where a custom is proved clearly to exist amongst the Jains which is at variance with the Shasters, and that where no such custom is proved the rules of Hindu law apply to them. That was decided by the Privy Council in Chotay Lall v. Chunnoo Lall. We also find that those learned Judges held that the Saraogi widow in that case was entitled to alienate ancestral property, because in the case of Hoolas Rae v. Bhowani, to which we have referred, the persons whose opinions were taken on commission in that case stated that to be the custom. In our opinion there was in this case no evidence which a Judge could leave to a jury or on which he himself could find that there existed a custom in this sect by which Musammat Gulabi was entitled to alienate the ancestral property which had been of her husband.

Under section 566 of the Code of Civil Procedure, we refer to the District Judge the issue as to what portion of the property in dispute was the ancestral property of Sant Lal and what portion of the property in dispute was non-ancestral. Ten days will be allowed for filing objections on the return to the reference.

Issue referred.