Sir John Edge, C.J and Burkitt, J.:— The appellants in this second appeal are the plaintiffs in a suit brought against one Musammat Surgiani to recover certain immoveable property which the plaintiffs alleged that they became entitled to upon the death of one Chote. Musammat Surgiani is the widow of one Kheri. Kheri [222] had a son named Balak who survived him. As Balak was a separated Hindu, on his death his widow Musammat Chote took the property in suit which had belonged to Balak in his lifetime. There are ten degrees of relationship between the plaintiffs and Balak. Both Balak and the plaintiffs are descended from a common ancestor, one Dharam Singh. Balak was the step-son of Musammat Surgiani, being the son of Kheri by another wife. In the written statement of Musammat Surgiani she denied that the plaintiffs were in any way related to Kheri or Balak. She alleged in the second paragraph that she had a preferential right to hold possession of the property on the ground that sbe was the wife of Kheri, the father of Balak. The third plea in the written statement alleged that the plaintiffs were not of the family of Kheri. There was no suggestion in the written statement that by any custom apart from Hindu law the defendant was entitled to possession as against the plaintiffs.
The first Court, finding the pedigree of the plaintiffs proved, gave them a decree for possession. The Subordinate Judge on appeal also found the pedigree proved, but he referred certain issues for trial under s. 566 of the Code of Civil Procedure. Some of those issues were apparently suggested by a confusion of thought as to the effect of decisions on questions of joint Hindu families and survivorship. The issues to which we have so referred are in our view immaterial. The third issue is as follows:— “What is the custom of the district in which the defendant-appellant lives as to the right of succession of the last female member of a joint Hindu family irrespective of her right of heirship to the last male or female member, i.e, does she take the estate of the joint family or is excluded by the separate living heirs of the propositus?” No one had suggested that any question of local custom apart from the general law of the Hindus affected the rights of the parties. The Subordinate Judge apparently framed that issue of his own motion, and we rather infer that the issue was suggested to him by the decision in a Bombay case in which some reference was made to a custom in that Presidency. Evidence was taken by the Munsif [223] under the order of reference. The Munsif dealt with that evidence exhaustively. As be states the evidence as to ten out of the thirteen cases, they did not in any way support any such custom as would entitle the defendant to possession as against the plaintiffs. As to the other three cases without much more evidence than was put on the record concerning them, they would not afford evidence of a custom. A custom where it is disputed and where it goes to limit or vary well-known rules of law must be clearly proved by evidence. It is not sufficient, for instance, to take the present case, to show that a step-mother took and remained in quiet possession of immoveable property which had been in the possession of her deceased step-son, both being Hindus. Such evidence would be quite inconclusive. It would be consistent with there being no claimant for the property: with there being in fact an heir who could not prove his pedigree; with there being an heir who could prove his pedigree, but who allowed his step-mother to remain in possession of the property for her maintenance. It would be consistent with there being an heir who could prove his title and his pedigree, but who having regard to the small value of the property, did not think it worth his while to enter upon possibly expensive litigation. In such a case the kind of evidence that ought to be regarded is evidence showing that the right claimed by custom was more or less contested and the contest abandoned by some one who, if the custom had not existed, would have been entitled, or evidence showing that generally in the District the custom was followed to the exclusion of persons who, if it had not been for the custom, would presumably have enforced their right under the general law. Evidence which is as consistent, with there being a custom as with there being no custom at all is not evidence of a custom modifying or varying the general law in this case, so far as we can see, there was no evidence of custom in the strict sense to be considered. But beyond that, the Subordinate Judge should not have raised a case on his own motion for the defendant which was not suggested by the defendant in her written statement, and which could not have been omitted from her written statement if she had been relying on a custom so much at variance with the ordinary rule of Hindu law as the custom found by the Subordinate Judge is. [224] In her appeal to the lower Appellate Court the defendant never suggested, any question of custom. It is not therefore necessary to consider what effect this custom might have had if the question had been raised and the custom had been proved.
The Subordinate Judge followed the decision of the Sadr Diwani Adalat of these Provinces in Musammat Bhuganee Daiee v. Gopaljee. He being in ignorance of the later decisions of this Court, considered that decision bound him. His attention was not drawn to the decision of a Division Bench of this Court in Gauri Sahai v. Rukko, in which it was decided that, according to the Mitakshara, none but females expressly named can inherit, and that consequently the widow of the paternal uncle of a deceased Hindu not being so named was not entitled to succeed to his estate. That decision was approved by a Full Bench of this Court in Jagat Narain v. Sheo Das. The decision of the Full Bench of the Calcutta Court in Lala Joti Lal v. Musammat Durani Kower shows clearly that in s. 3 of Chap. II of the Mitakshara the word used for mother does not include stepmother. The same point was decided in Kessserbai v. Valab Raoji. At p. 208 of that report it is said:— “It is clear that the stepmother is not included by the Mitakshara within the term mother.” The same view of the term ‘mother’ as used in the Mitakshara was maintained by the Madras High Court in Kumaravelu v. Virna Goundan(6).
There is no authority for holding, as the Subordinate Judge did, that a stepmother of a deceased son can inherit to him, either along with or to the exclusion of the heirs of the stepson, although they may be as far remote as ten degrees counting ascent and descent. It was a mistake on the part of the Subordinate Judge to imagine that the defendant, her stepson and Musammat Chote, Balak's wife, had any community of interest in the property in question. They did not constitute a joint Hindu family possessed, as such, of this property as joint property. As we have said before, the Sub-ordinate [225] Judge was apparently led astray by the decision in Musammat Bhuganee Daiee v. Gopaljee of the Sadr Diwani Adalat of these Provinces. That decision has been overruled by later cases.
We allow this appeal with costs, and, setting aside the decree of the lower appellate Court, we restore the decree of the first Court with costs. This decision will not militate against such rights of maintenance as the respondent may have.
Appeal decreed.