• '.· ' >

., -·

_,,

S.C.R.

SUPREME COURT REPORTS 825

THAKUR GOKALCHAND

ti.

PARVIN KUMAR!

[SAIYID FAzL Au and VMAN BosE JJ.]

Punjab custom-Principles to be observed in dealing with .customary law stated-Essentials of valid custom.

The plaintiff, a Rajput belonging to Tehsil Garhshankar in the District of Hoshiarpur (Punjab), instituted a suit against the defendant for the recovery of the properties which belonged to .a deceased Gurkha woman R and which she had acquire~ by way .of gift from a stranger, alleging that he was the lawfully wedded husband of R and that according to custom which applied to the parties with regard to succession he was entitled to succeed to the move, able and immoveable properties of R in preference to the defendant who was his daughter by R.

Held, that even if it be .assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property which R had received as a gift from a stranger and which she .owned in her own right would be governed by the custom governing her husband's family and hot her own.

Such marriage as was .alleged to have been contracted by the plaintiff being evidently an act of rare occurrence, the rule of succession set up by the plaintiff cannot be said to derive its force from long usage and .the plaintiff was not, in any even~, entitled to succeed.

Their Lordships laid down the general principles which should be kept in view in dealing with questions of customary law as follows :

(1) It should be recognised that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, :in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872.

(2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must . prove that he is so governed and must also prove the existence of the custom set up by him. (See Daya Ram v. Sohel Singh and Others, 110 P.R. (1906) 390 at 410; Abdul Hussein Khan

v. Bibi So.na Dero, L.R. 45 I.A. 10).

(3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used sci long that the memory .of man runneth not to the contrary" should not be strictly

~952

May 16.

Thakur Gokal Chand v.

Parvin Kumari.

applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariabjlity as to show that it has, by com111on consent, been submitted to as the established governing rule of a particular locality. (See Mt. Subhani v. Nawab, A.LR. 1941 P.C. 21 at 32). .

( 4) A custom may be proved by general evidence ns to its. existence by n1embers of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy., and such evidence n1ay be safely acted on when it is: supported by a public record of custom such as the Riwaj-i-am, or Manual of Custo!Jlary Law. (See Ahmad Khan v. Mt. Channi Bibi, A.LR. 1925 P.C. 267 at 271).

(5) No statutory presumption attaches to the contents of at Ri\vaj-i-atn or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and' will generally be regarded as a strong piece of evidence of the custotn.

The entries in the llhvaj-i-am may however be proved' to be incorrect, and the quantum of evidence required for the purpose of rebutting them wilL vary with the circumstances of each case.

The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. (Sec Beg v. Allah Ditta, A.LR. 1916 P.C. 129 at 131; Saleh Mohammad

v. Zawar Hussain, A.LR. 1944 P.C. 18 ; Mt. Subhani v. Nawab• A.LR. 1941 P.C. 21 at 25).

{ 6} When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation anc; I" means and source of livelihood, and does not follow other custo1ns applicable to agriculturists. (See Muhammad Hayat Khan

v. Sandhe Khan and Others, 55 P.R. (1906) 270 at 274; Muzafjar Muhammad v. Imam Din, I.L.R. (1928) 9 Lah. 120, 125).

(7) The opinions expressed by the compiler of a Riwaj.i.am or Settlement Officer as a result of his intimate knowledge and' investigation of the subjec~ are entitled to weight which will vary with the circu1nstances of each case. The only safe rule toe be laid down with regard to the weight to be attached to the· con1piler's re1narks is that if they represent his personal opinion or bias and detract from the record of. long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry a"nd investigationas to the scope of. the~

' -

' _,

applicability of tbe custom and any special sense in which tbe 1952 exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. (See N"rain Singh v. Thakur Gokal Mt. Basant Kaur, A.I.R. 1935 Lah. 419 at 421, 422; Mt. Chinto v.

Chand Thelur, A.I.R. 1935 Lah. 985; Khedam Hussain v.

Mohammad v.

Hussain, A.I.R. 1941 Lah. 73 at 79).

Parvin Kumari.

CrvrL

APPELLATE JurusorcrroN : Civil Appeal No. 158 of 1951. Appeal from the judgment and decree dated 24th March, 1948, of the High Court of Punjab at Simila (Teja Singh and Khosla JJ.) in Regular First Appf'.al No. 133 of 1945 arising out of judgment and decree dated 25th November, 1944, of the

Court of the Senior Subordinate Judge, Kangra, at Dharmsala in Suit No. 86 of 1943.

Daryadatta Chawla for the appellant.

Gurbachan Singh (Jindra Lal, with him), for the respondent.

1952. May 16. The Judgment of the Court was delivered by

FAZL Au J.-This is an appeal against the judgment and decree of the High Court of Punjab at Simla reversing the judgmeµt and decree of the Senior Subordinate Judge of Kangra in a suit instituted by the appellant for a declaration that he was the sole lawful heir of one Musammat Ram Piari, whom he alleged to be Pis wife, and as 1 such was entitled to the properties left by her, and for possession of those properties •.

The suit was instituted against 2 persons, namely,.

Parvin Kumari, who was alleged to be the daughter of the plaintiff by Ram Piari, and Shrimati Raj Kumari, who were respectively impleaded as defend-· ants Nos. 1 and 2.

The case of the plaintiff as set out in the plaint was: that he was married to Ram Piari, the daughter of an employee of Raj Kumari (defendant No. 2) about 22

years before the institution of the suit, that after marriage she lived with him at Hoshiarpur and gave birth to a daughter, Parvin Kumari (defendant No. 1 ),. on the 4th March, 1929, and that Ram Piari died ia

Thakur Gokal

Chand

.v.

Parvin KumOri.

Faz/ Ali].

April, 1941, leaving both movable and immovable properties which she had acquired in her own name with the aid of his money and which had been taken possession of by Raj Kumari. He further alleged that he was a Rajput by caste belonging to tehsil Garhshankar in the district of Hoshiarpur, and was governed by custom in matters of uccession, and, according to that custom, he, as the husband of the deceased Ram Piari, was entitled to the movable and immovable properties left by her to the exclusion of Parvin Kumari, her daughter.

. The suit was contested by both Parvin Kumari and Raj Kumari, and both of them denied that the appellant h)ad been mart1ied to Ram Piar~. Their case was that the properties in suit were acquired by Raj Kumari with her own money for Ram Piari, that the latter had made a will bequeathing them to her <laughter, Parvin Kumari, that the appellant was not governed by ctom, and that in any event the alleged custom could not apply to the personal and selfacquired property of Ram Piari. As regards 2 cars which were also included .in the list of properties daimed in the plaint, the case of Raj Kumari was that they belonged to her and that the deceased was only a benarnidar.

' The trial court decreed the plaintiff's suit with respect to all the properties excepting the 2 cars which were held to belong to Raj Kumari. The court held that Ram Piari was the legally married wife of the appellant, that he was governed by customary law applicablle . to Rajputs . of Hoshiarpur disttict i'n matters .of succession, and that according to that customary law he was the preferential heir to the estate of Ram Piari. J:'he court further held. that the will of Ram Piari was invalid as. she had no power under the

.ustomary law to make a will.

Both the . defendants appealed to the High Court against the judgment of the trial court, and the appeal was ultimately allowed and the plaintiff's suit was .clismissed. The High Court held that though there

was evidence of long cohabitation of the plaintiff and Ram Piari giving ris, e to a presumption of marriage, yet that presumption had been completely rebutted .and the proper conclusion to be arrived at on the evidence on record was that the plaintiff had not been able to prove that Ram Piari was his lawfully wedded wife. As to custom, the findings of the High Court were as follows:-

( 1) that the appellant belonged to an agricultural tribe of Hoshiarpur district and was therefore govern- ed by the custom prevailing among the Rajputs of that district;

(2) that there was no local or general custom allowing the plaintiff to succeed in preference to the daughter to the property left by Ram Piari which had been given to her by a stranger, namely, Raj Kumari; .and

(3) that the parties were governed by Hindu law ci:ider which Parvin Kumari being the daughter of Ram ' Piari was entitled to succeed to the properties left by the latter in preference to the plaintiff.

Against the decision of the High Court, the plaintiff has now preferred this appear, after obtaining a .certificate from the High Court under sections 109 and,

110 of the Code of Civil Procedure.

The first question which arises in this appeal is whether the plaintiff has succeeded in proving that Ram Piari was his legally wedded wife. The plaintiff was admittedly employed as a copyist in the District Judge's court at Hoshiarpu.r and was living in that town. His case was. that he gained the acquaintance of Raj Kumari (defendant No. 2), a wealthy lady of Kangra district who owned a tea estate in tehsil Palampur and occasionally visited Hoshiarpur, and through her good offices was married to Ram Piari, who was the daughter of one Chandar Bir, an em- :ployee of Raj Kumari working in her tea estate. After marriage, ' Ram Pfari live~ w:iith -the plainitiff at Hoshiarpur as his lawfully wedded wife, and a daughter, .Parvin Kumari, (also called Usha Rani), was born to

Thakur Gok.al

Chand

".· Parvin, 11:.um, ari.

Fazl 4li /.

Thakur Gokal

Chand

Parvin Kumari.

Faz/Ali].

them on the 4th March, 1929. Raj Kumari had great attachment towards Ram Piari and often used to pay visits to Hoshiarpnr to meet her. In the year 1934-35 (no date is mentioned in the plaint; but this year is mentioned in the plaintiff's evidence), Raj Kumari took Ram Piari from the plaintiff's house with belongings of every description on the pretext of taking her out for recreation. Ram Piari did not like going round with Raj Kumari and though she wanted to come back to the plaintiff s; he had not the courage to disobey Raj Kumari, and in fact Ram Piari and Raj Kumari inwardly hated one another during the last years of the former's life. In the year 1941, Ram Piari died at Mayo Hospital at Lahore, leaving the properties in dispute which had been acquired by her by good management with the plaintiff's own money.

As against this version of the paintiff, ithe case of Raj Kumari was that Ram Piari had peen enticed away by a motor driver sometime in 1921, that she returned to Holta estate after about 11 years with.

Parvin Kumari who was; then about 3 years old, and after her return both she and her daughter remained' with her (Raj Kumari) till Ram Piari died in 1941..

Raj Kumari, being a widow, felt very lonely and so brought up Ram Piari as a companion and all the properties in dispute had been acquired by her with, her own money for the benefit of Ram Piari. Parvin Kumari had been educated and brought up at her ex-· pense, and it was entirely false that she and Ram Piari inwardly hated each other, the truth being that they liked and were attached to each other.

The evidence adduced by the plaintiff to prove that Ram Piari was his lawfully wedded wife consists partly of the evidence of a number of witnesses and partly of circums1tantial evidence. The direct evidence of marriage is furnished by Babu Ram, P. W. 7, Arrant Ram, P. W. 11, Babu, P. W. 12, and Asa Ram,.

P. W. 13. Babu Ram claims to be the family priest and alleges to have officiated as priest at the time of the plaintiff's marriage. Anant Ram and Asa Ram are

jaswal Rajputs residing in village Bham, which 1s near the plai, ntiff's village, Ajnoha, and Babu is a barber.

These four persons have said that they accompanied the marriage party and that the marriage of the plaintiff with Ram piari was celebrated in their presence.

The evidence of the other witnesses and the circumstantial evidence upon which reliance has been placed by the plaintiff have been summarized by the learned Subordinate Judge in his judgment in these words:-

"P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshiarpur. P. W. 4 Doctor Shadi Lal is a leading Medical Practitioner of Hoshiarpur. P. W. 9 Lala Sham Lal and P. W. 10 Lala Har Narain have been co-employees with the plaintiff in the same office; though these persons (except P. W. 9) have no social relations with the plaintiff and his family, yet they have been seeing Ram Piari living with plaintiff as his wife. She was proclaimed as such by the plaintiff and both of them were treated as husband and wife by the people of the Mohalla and by the brotherhood in the village of plaintiff. Exhibits P-18 and P-19 show that defendant No. 2 has been addressing Ram Piari, care of plaintiff in 1932 and has heen receiving correspondence, care of the plaintiff which shows that she approved of the plaintiff's alliance with Ram Piari

.... Paras Ram, a younger brother of Ram Piari~ lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija-a common name for sister's husband. From 1930 to 1934 Paras Ram read in the D.A.V. High School at Hoshiarpur and Exhibits P. W. 6/1 to 6 are copies • of entries in the registers of the school regarding applications which were given by Gokal Chand, plaintiff, for admiss.ion of his ward Paras Ram, son of Chandar

Bir who was described as his sal.a (wife's brother).

P. W. 6 Lala Bishan Das, teacher, ha~ filed these copies. His sister's, house was adjacent to the house of the plaintiff and he had occasions to see Ram Piari

living and being treated as wife by the plaintiff during those years."

Thakur Gokal"

Chand

v.

Parvin Kumari.

Fazl Ali f.

Thakur Gokal Chand v. 'f'arvin Kumari.

]?azl Ali/.

Upon the evidence to which ll"eference has been )Ilade, the trial court came to the conclusion that Ram Piari was the legally married wife of the appellant.

The learned judges of the High Court however found the evidence of the 4 witness.es who claimed to have been present at the marriage of the plaintiff to be quite unconvincing, and they pointed out that the case of the plaintiff being that his marriage had been performed with great pomp and show, it was surprising that the evidence . relating to . it should be confined to 4 persons one of whom appeared to be a 'hired witness' and the other 3 were interested persons.

As io the evidence of the 4 pers, ons who claim to have been present at the plaintiff's marriage, we find ourselves in agreement with the view taken by the High Court. The evidence of the other witnesses undoubtedly establishes the fact that for some years the plaintiff and Ram Piari lived together as husband and wife and were treated as such, that Paras Ram, brother of Ram Piari, addres.sed the plaintiff as jija (a common name for sister's husband), and that the plaintiff acted as Paras Ram's guardian when the latter. was admitted to D.A.V. School and was described as his brother-in-law in some of the entries in the school register. The learned Judges of the High Court considered that the evidence of .certain witneses who deposed to some of the facts on which the lower court relied, did not strictly comply with the requirements of section 50 of the Indian Evidence Act, firstly because the witnesses had no special means of knowledge on the subject of relationship between the plaintiff and Ram Piari, and secondly because what section 50 made relevant was not mere opinion but opinion "expressed by conduct" of persons who as members of the family or otherwise, had special means; of knowledge. It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-s.ettled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari

lived and were treated as husband and :wife for a number of years, and, in the absence of any material pointing to the contrary conclusion a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them. We -agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting, and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram Piari. In the .first place, the plaintiff has not examined any of his near relations such as his brother, or collaterals living in Ajnoha, or any co-villagers, whose presence at the marriage would have been far more probable than the presence of the witnesses examined by him. He has also not examined any of the witnesses residing in or round about Holta estate in spite of the fact that his own case is that the marriage was celebrated with great pomp and show. It was suggested in the courts below that since defendant No. 2 is an influential person, no local witnesses would be available to support the plaintiff's case, but the High Court has very fully dealt with this aspect and pointed out .firstly that Raj Kumari had had litigation with a number of persons belonging to Palampur and such persons would not be under her influence, and secondly that no good reason has been shown why Raj Kumari, who is alleged to have brought about the marriage between the plaintiff and Ram Piari, should take a completely hostile attitude towards him. Then again, neither the parents nor any of the relations of Ram Piari have been examined to support the plaintiff. - On the other hand, Ram

Piari's own mother, Ganga, has deposed that the former was never married to the plaintiff, and the statement made by Ram Piari in her will, which is a very valuable piece of evidence, . is to the same effect. It is also incredible that in spite of the love which Ram Piari is said to have had for the plaintiff, she left him

.1952

Thakur Gokal'

Chand

•. v.

Parvin Kumari. ,

, Faz/ Ali/.

:Thakur Gokal Chand . v.

Parvin Kumari.

Faz/ AU/.

and went away to live with Raj Kumari, and that during the long period when Ram Piari was away, the .plaintiff should never have visited her or made enquiries -about her and hisi alleged daughter, Parvin Kumari. This is all the more strange, since it is stated hy the plaintiff that Ram Piari continued to love him and that she and Raj Kumari inwardly hated each other. Parvin Kumari says in her deposition .that she had never seen her father and -that when she

•eached the age of discretion she found herself living at :Palampur. The conduct of the plaintiff -in showing such complete indifference to his wife and daughter as is disclosed in his evidence is most unnatural, and .no less unnatural is his conduct in instituting a suit to .deprive :her of properties which had come into her hands not by reason of anything done by him but as a result of the generosity shown towards her by a stranger. The plaintiff's case that the properties in dispute were acquired by 'Ram 'Piari iwlth the aid of his money is wholly untrue, and it has been rightly found by both the courts that they were acquired for her by Raj Kumari. The plaintiff's witnesses have tried to exaggerate his means to support his case, but the truth appears to be that he had hardly any means of his own beyond the somewhat meagre salary which he .us.ed to draw as a court typist.

Several of the witnesses including and Advocate and Ram Piari's own mother have deposed that Ram Piari had eloped with a driver and had remained away from Holta .estate for a number of years. Even the Subordinate Judge has not rejected the story of elopement, and though there is no reliable evidence as to when and how she met the plaintiff, the possibility of her having lived with him for some years. even though they were not legally married, cannot be ruled out.

The plaintiff claims ta be a Rajput of high caste, and it appears ta us rather unusual that he should not marry in _his own tribe but should take in marriage a Gurkha girl who was born of very poor parents and belonged tci a place far away from where he himself lived.

_,__

The fact that Paras Ram lived. with the plaintiff for .some time and addressed the latter as jija, and that the plaintiff d<!S!Cribed himself as guardian and brother-in-law of Paras Ram, is as consistent with the . defence version as with the plaintiff's. If Paras Ram's parents had been in affluent circumstances so as to be :able to maintain and educate him, , the case would have been different, but there is evidence to show that -Chandar Bir was very poor and both his wife and -daughter had to work as servants of Raj Kumari to .earn their living.

In our opinion, the conclusiGn arrived at by the High Court has not been shown by the plaintiff to be 'incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence rhe plaintiff has not s.ucceeded in establishing that am Piari was his legally wedded wife.

In the view we have taken, it is not necessary to deal with the question whether succession to the properties in dispute will be governed by customary law

•Of by Hindu law, but since it was argued before us at very great length, we think that we might state the contentions of the parties and the difficulties which in our opinion arise in dealing with those contentions on the material before us. Before doing so, however, we wish to set out briefly certain general principles which we think should be kept in view in dealing with questions of customary law. They may be summarized as follows:-

(1) It should be recognized that many of the agricultural tribes in the Punjab are governed by a -:variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in seetion 5 •of the Punjab Laws Act, 1872.

(2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed nd must also prove the existence of the

Thakur Gokal

Chand

v ..

Parvin Kumari.

Fazl Ali].

Thakur Gktil

Chand

v~ .

Parvin Kumar;.

Fazl Ali/.

custom s.et up by him. See Daya Ram v. Sahel Singh and' Others('), Abdul Hussein Khan. v. Bibi Sana Dero(2).

(3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a. custom, in order that it may be legal and binding,. must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is. necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as. to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See Mt. Subhani v. Nawab(3).

( 4) A custom may be proved by general evidence as to its exil;, tence by members of the tribe or family who woul:<l naturallyi be cogniiant Of ilts existence and its exercise without controversy, and such evidence may he safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. See Ahmad Khan v.

Mt. Channi Bibi(').

(5) No statutory presumption attache11 to the con. tents of a Riwaj-i-am or similar compilation, hut being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authoritiei;. See Beg v. Allah Ditta('), Saleh.

(1) llO P.R. (1906) 390 at 410. (4) A.I.R.1925 P.C. 267 at271. ·

(2) L.R. 45 I.A. 10.

(5) A.LR .. 1916 P.C. 129 at 131.

(3) A.I.R. 1941 P.C. 21 at 32. ·

Mohammad v. Zawar Hussain(1); Mt. Subhani v.

Nawab(2).

( 6) When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, otc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists.

See Muhammad Hayat Khan v. Sandhe Khan and Others(3), Muzaffar Muhammad v. Imam Din(4).

(7) The opinions expressed by the compiler of a Riwaj-i-am or Settlement Officer a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the compiler's remarks is that if they represent his personal opinion or bias and detract from the record of long-standing custom, they wlll not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight.

See Narain Singh v. Mt. Basant Kaur( 5 ), Mt .. Chinto v.

Thelur( 6 ); Khedam Hussain v. Mohammad Hussain(').

Bearing these principles in mind, the difficulty which appears to us to beset the case of the plaintiff may be briefly stated as follows :- The basis of the plaintiff's case is that the custom by which he claims to be governed is a "zamindara custom" and he is governed by it by reason of his belonging to a family of agriculturists. From the evidence, however, it appears that he had sold most, if not

(1) A.LR. 1944 P.C. 18.

(5) A.LR.1935 Lah. 419 at

(2) A.LR. 1941 P.C. 21 at 25. 421, 422.

(3) 55 P.R. (1906) 270 at 274. ( 6) A.LR. 1985 Lah. 985.

(4) I.LR. (1928) 9 Lah. 120, 125. (7) A.LR. 1941 Lah. 73 at 79. 5-9 S.C. India/71

Thakur Gokal

Chand v.

Parvin Kumari.

Faz/ Ali J.

Thakur Gokal Chand v.

Parvin Kumari.

Fazl Ali/.

all, of . his property in the village to which he belonged, that his ancestors were bankers or sahukars, that his father was a clerk of a lawyer practising in Hoshiarpur d(strict and that he himself was a clerk in the district Judge's court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent on agriculture or that he maintained connection with them.

In our opinion, the witnesses of the plaintiff have tried to grossly exaggerate his pecuniary means and have not given a correct picture on which the answer to the question as to whether he would still be governed by the old custom would depend. Again, though according to the answer to question 11 in the Riwaj-i-am of Hoshiarpur district, the general custom governing the Rajputs of that district would seem to be that a marriage within the tribe only is lawful, the plaintiff did not marry a Rajput of his district but is said to have married a Gurkha woman, about whose caste and character the evidence is conflicting, and whose family was admittedly not governed by the "Riwaj-iam" upon which the plaintiff relies. If both the husband and the wife are shown to belong to the same tribe and to be governed by the same custom, then the difficulty in deciding what would be the rule of succession on the death of the wife in regard to the wife's self-acquired property may not be very great.

But even if it be assumed that Ram Piari was lawfully married to the plaintiff, the serious question to be decided would be w he th er succession to tbe property which Ram Piari received as gift from a stranger and which she owned in her own right, would be governed by the custom governing her husband's family and not her own. Such marriage as is said to have been contracted by the plaintiff being evidently an event of rare occurrence, the rule of succession set up by him cannot be said to derive its force from long usage. As we have pointed out, a custom in order to be binding must derive its force from the fact that by long usage it has obt; i, ined the force of law; and if an occasion never arose to apply the rule of succession

invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting. When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom and partly on the rule of Hindu la:w, namely, that the law which governs the husband will govern the wife , also.

Whether the latter rule can be extended to a case like the present a question of some difficulty, on which, as at present advised, we would reserve our opinion.

In the circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiff's marriage with Ram Piari has not been clearly established.

The appeal therefore fails and it is dismissed, but in the circumstances of the e; ase and particularly since the appellant has appealed in f orma pauperis, we direct that the parties will bear their own costs in all the courts.

Appeal dismissed.

Agent for the appellant: S. D. Sekhri.

Agent for the respondent: Naunit Lal.

LACHMAN SINGH AND OTHERS

THE STATE

[SAIYID FAzL Au and VIVIAN BosE JJ.]

Evidence Act (1 of 1872), sec. 27-Statements of several accused leading to discoveries-Admissibility-Necessity of proof as to which statement was made first-Scope of sec. 27.

Three persons K, M and S, who were accused of murder made statements to the police which disclosed that the dead bodies after being dismembered were thrown into a stream and the police party thereafter went with the three accused to the stream where each of them pointed out a place where different

Thakur Gokal

Chand v.

Parvin Kumari.

Fazl Ali f.

March 21.

825

THAKUR GOKALCHAND

ti.

PARVIN KUMAR

VMAN BosE JJ.

Punjab

section 5

Punjab Laws Act, 1872

L.R. 45 I.A. 10

Teja Singh

Khosla

Daryadatta Chawla

Gurbachan Singh

Jindra Lal

FAZL Au

High Court of Punjab at Simla

Musammat Ram Piari

Parvin Kumari

Ram Piari

Shrimati Raj Kumari

Hoshiarpur

4th March, 1929

Thakur Gokal

Parvin KumOri

Raj Kumari

Parvin Kumari

Ram Piar~.

Ram ' Piari

sections 109

the Code of Civil Procedure

Raj Kumari

Kangra district

Palampur

Chandar Bir

Ram Pfari

Hoshiarpnr

Mayo Hospital at Lahore

Raj Kumari

Babu Ram

Arrant Ram

Asa Ram

Anant Ram

Asa Ram

Bham

Ajnoha

Babu

Ram piari

Mukhi Ram

Shadi Lal

Lala Sham Lal

Lala Har Narain

Paras Ram

Ram Piari~

Gokal Chand

D.A.V. High School at Hoshiarpur

Lala Bishan Das

section 50

Indian Evidence Act

section 50

section 50

Palampur

Ram

Piari

Ganga

Holta

-Chandar Bir

am Piari

Punjab Laws Act, 1872

Parvin Kumar

L.R. 45 I.A. 10

Hoshiarpur district

S. D. Sekhri

Naunit Lal

LACHMAN SINGH

VIVIAN BosE

sec. 27

sec. 27


S.C.R.

SUPREME COURT REPORTS 839

invoked by the plaintiff, to the property held by a wife in her own right, the foundation on which custom grows would be wanting. When the matter is further probed, it appears that the plaintiff relies not only on custom but partly on custom and partly on the rule of Hindu la:w, namely, that the law which governs the husband will govern the wife , also.

Whether the latter rule can be extended to a case like the present a question of some difficulty, on which, as at present advised, we would reserve our opinion.

In the circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiff's marriage with Ram Piari has not been clearly established.

The appeal therefore fails and it is dismissed, but in the circumstances of the e; ase and particularly since the appellant has appealed in f orma pauperis, we direct that the parties will bear their own costs in all the courts.

Appeal dismissed.

Agent for the appellant: S. D. Sekhri.

Agent for the respondent: Naunit Lal.

LACHMAN SINGH AND OTHERS

THE STATE

[SAIYID FAzL Au and VIVIAN BosE JJ.]

Evidence Act (1 of 1872), sec. 27-Statements of several accused leading to discoveries-Admissibility-Necessity of proof as to which statement was made first-Scope of sec. 27.

Three persons K, M and S, who were accused of murder made statements to the police which disclosed that the dead bodies after being dismembered were thrown into a stream and the police party thereafter went with the three accused to the stream where each of them pointed out a place where different

Thakur Gokal

Chand v.

Parvin Kumari.

Fazl Ali f.

March 21.

Lachma11 Singh

and Others

The State.

parts of the dead bodies were discovered. It was contended on behalf of the accused that it was only the information which was first given that was admissible under sec. 27 of the Evidence Act, that once a fact has been discovered in consequence of information received from a person accused of an offence~ it cannot be said to be rediscovered in consequence of information received from another accused person, and that in the absence of evidence to show which of the accused first gave the infer mation the discoveries alleged cannot be proved against any of the accused persons: Held, that, even assuming that this argu ment was correct, as it appeared from the evidence that S led the police to a particular spot on the stream and it was at his instance that some blood stained earth was recovered from a place outside the village and he had also pointed out the trunk of one of the dead bodies, and the High Court was satisfied that there was an "initial pointing out" by S, the case was covered by the rule and the evidence as to the discoveries was admissible.

\Vith regard to the rule applicable to cases where there is clear and unimpeachable evidence as to independent and authen tic statements of the nature referred to in sec. 27 of the Evidence Act having been made by several accused persons either simultaneously or otherwise, some of the decided cases have gone further than is warranted by the language of sec. 27 of the Evidence Act and may have to be reviewed on a future occasion.

CRIMINAL

APPELLATE JURISDICTION : Criminal Appeal No. 2i of 1950. Appeal from the judgment and order dated 29th J uni:, 1950, of the High Court of Judicature at Simla (Weston C.J. and Khosla J.) in Criminal Appeal No. 432 of 1949 arising out of a judgment dated 5th August, 1949, of the Court of the Addi- tional Sessions Judge, Amritsar, in Sessions Trial No. 7 <if 1949 and Case No. 8 of 1949.

fai Gopal Sethi (R. L. Kohli, with him) for the appellants.

Gopal Singh for the State.

1952, March 21. The Judgment of the Court delivered by

was

: -. :; oo

FAzL Au J.-The three appellants were tried by the Additional Sessions Judge at Amritsar and found guilty of having murdered two persons named Darshan Singh and Achhar Singh and sentenced to transportation for life. The High Court of Punjab upheld their

;..- ·-

' ===t >

conviction and sentence and granted them a certificate under article 134( 1) ( c) of the Constitution that the case 1s a fit one for appeal to this Court. Hence this appeal.

The facts of the case may be briefly stated as follows. On the evening of 16th December, 1948, a little before sunset, Achhar Singh, one of the murdered persons, went to the house of one Inder Singh in village Dalam for getting paddy husked. Achhar Singh's brother, Darshan Singh, who was working as a driver at Amritsar, came to Dalam from Amritsar the same evening, and, on coming, to know from his father that Achhar Singh had gone to Inder Singh's house, he also went there. While the two brothers were returning home, they were attacked by the three appellants and two of their relatives in a lane adjoining Inder Singh's house. The five assailants, who were armed with deadly weapons, inflicted a number of injuries on the two victims, as a result of which they died then and there. After the murder, the appellants and their companions tied the two dead bodies in two kheses (wrappers) and took them to village Saleempura where two other persons, named Ajaib Singh and Banta Singh, joined them, and the dead bodies after being dismembered were thrown into a stream known as Sakinala at a place about five miles from village Dalam.

Bela Singh, father of the deceased persons, who was one of the persons who claiw; to have witnessed the occurrence, did not leave the village at night on account of fear, but he started about two hours before sunrise on the next morning and lodged the first information report at 10 A.M. at the nearest police station. A police officer arrived in village Dalam shortly afterwards, and after investigation a charge-sheet was submitted against seven persons including the present appellants.

At the trial, five of the accused were charged with offences under section 302 read with section 149 and under section 201 read with section 149 of the Indian

Penal Code, and the remaining two accused were charged with the offence under section 201 read with section 149 of that Code. The learned Judge who tried

Lachman Sing/,

and Others

The State.

Fazl Ali/.

Lzchman Singh and Others

The State,

Fazl Ali/.

the accused, convicted the appellants and two other persons under section 302 read with section 149 of the Penal Code and sentenced them to transportation for life and convicted Ajaib Singh under section 201 read with section 149 and sentenced him to three years' R.I. Banta Singh, accused, was acquitted.

On appeal the Punjab High Court upheld the conviction of th~ present appellants and acquitted the remaining three persons.

Before proceeding to discuss the evidence in the case, it is necessary to refer to what has been described as the motive for thy. murder.

It appears, that in June, 1947, Natha Singh, father of the third appellant, Swaran Singh, was murdered, and Darshan Singh and Achhar Singh, the two milrdered persons in the case before us, and their third brother, Sulakhan Singh, were charged with the murder of that person. As a result of the trial, Darshan Singh was acquitted and Achhar Singh was sentenced to 1! years' R.I., while Sulakhan Singh was sentenced to 7 years' R.I. The judgment of the Sessions Judge in that case was delivered shortly before the date of the present occurrence, and it is common ground that Achhar Singh had been released on bail by the appellate court and was at large at _that time. It is said that the appellants and their relatives felt aggrieved by the 'acquittal of Darshan Singh

and by the light sentenced passed on Achhar Singh, and therefore committed this murder in a spirit of frmtration and revenge. It was conceded before us by the learned counsel for the appellants that the facts stated above constituted a strong motive for the murder, but he also contended that .they constituted an equally strong motive for the appellants being falsely implicated in case the murder was committed, as was suggested by him, in circumstances under which the murderers could not be seen or identified. It therefore becomes necessary to set out the evidence adduced by the prosecution in support of the murder.

The evidence led by the prosecution may be divided under two main heads:-(1) Direct evidence, and (2) Circumstantial evidence.

The direct evidence consists

oif the testimony of four eye-witnesses, namely, Bela Singh, father of the deceased, who claims to have gone to the scene of occurrence on hearing an outcry and to have witnessed the murderous assault on his sons ; Inder Singh and his wife, Mst. Taro, to whom the murdered persons had gone for getting paddy husked and who lived in a house adjoining the lane where the murder took place ; and Gurcharan Singh, a resident of a different village, who states that he saw the occurrence when he was going towards village Dhadar on a cycle.

The circumstantial evidence in the case, on which the High Court has relied, may be briefly summarised as follows :- ( 1) The second appellant, Massa Singh, who was arrested on the 18th December, 1948, was wearing a pyjama stained with human blood.

(2) The third appellant, Swaran Singh, who was arrested on the 18th December, 1948, took the police on the 19th December to his haveli which was locked, and, on opening it two khases (wrappers) which were stained with human blood were recovered. ·

(3) Swaran Singh pointed out a spot on the way to Sakinala, where the two dead bodies were placed for a short time while they were being taken to Sakinala, and the police scrapped blood-stained earth from that spot. He also led the police to the bank of Sakinala and pointed out the trunk of the body of Darshan Singh which was lying in the nala.

(4) Lachhman Singh, who was arrested on the 28th December, 1948, pointed out a dilapidated khola near Sakinala where 3 spears, one kirpan and a datar, all stained with human blood, were recovered.

The learned Sessions Judge, who heard the evidence, seems to have been impressed by the evidence of the eye-witnesses, and he has summed up his conclusion in these words:-

"This evidence was so consistent, so reliable, and of such nature that in my opinion it is definitely established that the five accmed Lachhman Singh, Katha

Lachman Singh

and Others

Th r: Sta tr:.

Fazl Ali/.

Lachman Singh

and Others

The State.

Fazl Ali J.

Singh, Massa Singh, Charan Singh and Swaran Singh are proved to have actually murdered both Darshan Singh and Achhar Singh.

This fact is further proved from subsequent events as deposed by P.W. 8 Bahadur Singh and P.W. 9 Gian Singh and P. W. 11 Bhagwan Singh. These witnesses had witnessed the various recoveries in this case which were made at the instance of all the accused."

The learned Judges of the High 03urt, though they repelled most of the criticisms levelled against the witnesses, ultimately came to the conclusion that "in all the circumstances (of the case) it would be proper not to rely upon the oral evidence implicating particular accused ' unJess there is some circumstantial evidence to support it".

Having laid down this standard, they examined the circumstancial evidence against each of the accused persons and upheld the conv>iction of the three appellants on the ground that the circumstantial evidence, to which reference has been made, was sufficient corrobbration of the oral evidence.

The case of the appellants was argued at great length by Mr. Sethi, who appeared for them, and everything that could possibly be said in their favour was urged by him with great force and clarity. Proceedings, however, upon the principles laid down by this court, circumscribing the scope of a criminal appeal after the case has been sifted by the trial court, and the High Court, it seems to us that the question involved in the present appeal is a short and simple one. According to our reading of the judgment of the High Court, the learned Judges, who dealt with the case, did not condemn the oral evidence outright, but, as a matter of prudence and caution, they decided not to convict an accused person unless there were some circumstances to lend support to the evidence of the eye-witnesses with regard to him.

It is quite clear on reading the judgment that the corroboration which the learned judges required to satisfy themselves was not that kind of corroboration which one requires in the case of the evidence of an approver or an accomplice,

but corroboration by some circumstances which would lend assurance to the evidence before them and satisfy them that the particular accused persons were really concerned in the murder of the deceased.

Judged by this standard, which it was open to them to prescribe, it seems to us that the case of each of -the appellants clearly fell within the rule which they had laid down

for their own guidance.

The comment of the learned counsel for the appellants with regard to the blood-stained pyjama which was recovered from Massa Singh was, firstly, that it was not possible to gather from the evidence the extent of the blood stains, and secondly that it would be highly improbabk that this accused person would be so reckless as to continue to wear a blood stained pyjama after having perpetrated the crime. This criticism has been considered by the courts below, and it does not appear to us to be of such a nature as to affect the conclusion arrived at by them.

As to the recovery of blood-stained weapons at the instance 'Of Lachhman Singh, it was urged that the entire evidence with regard to this recovery should be discarded, as the police investigation in the case was not a straightforward one but was conducted in such a way as to raise suspicion that the police were deliberately trying to create some evidence of recovery against each of the accused persons. It is sufficient to say that it is not the function of this court to reassess evi- <lence and an argument on a point of fact which did not prevail with the courts below cannot avail the appellants in this court. The comment against the 'discoveries made at \the instance of Swaran Singh was that they are not admissible in evidence under section 27 of the Indian Evidence Act, which provides-

"When any fact is deposed to as discovered in consequence of information received from a person accused of an offence in the custody of a police officer, so much of such information whether it amounts to a 'COnfession or not, as relates distinctly to the fact thereby discovered, may be proved."

Lachman Singn

and Others

The State.

Fazl Ali/.

Lachman Singh and Others v.

The State.

Faz/ Ali/.

The main facts which it is necessary to tate to understand the argument on this point may be summed up as follows:-

According to the prosecution, all the three accused, namely, Katha Singh, Massa Singh and Swaran Singh, were interrogated by the police on the morning of the 19th December, 1948, and they made certain statements which were duly recorded by the police. In these statements, it was disclosed that the dead bodies were thrown in the Sakinala. Thereafter, the police party with the threeaccused went to Sakinala where each of them pointed out a place where different parts of the dead bodies were discovered.

The learned counsel for the appellants cited a number of rulings in which section 27 bas been construed to mean that it is only the information which is first given that is admissible . and once a fact bas been discovered in consequence of information received from a person accused of an offence, it cannot be said to be a re-discovered in consequence of information received from another accused person. It was urged before us that the prosecution was bound to adduce evidence to prove as to which of the three a£Cused gave the information first. The head constable,· who recorded the statements of the three accused has not stated which of them gave the information first to him, but Bahadur Singh, one of the witnesses who attested the recovery memos, was specifically asked in cross-examination about it and stated : "I cannot say from whom information was got first". In the circumstances, it was contended that since it cannot be ascertained which of the accused first gave the information, the alleged discoveries cannot he proved against any of the accused persons. It seems to us that if the evidence adduced by the prosecution is found to be open to suspicion and it appears that the police have deliberately attributed similar confessional statements relating to facts discovered to different accused persons,. in order to create evidence against all of them, the case undoubtedly demands a most cautious approach.

But as to what should be the rule when there is clear and unimpeachable evidence as to independent and authentic statements of the nature referred to in section 27 of the Evidence Act, having been made by several accused persons either simultaneously or otherwise, all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of section 27, and it may be that on a suitable occasion in future thooe cases may have to be reviewed. For the purpose of this appeal, however, it is sufficient to state that even if the argument put forward on behalf of the appellants, which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration.

It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discovery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered.

From the evidence of the head constable as well as that of Bahadur Singh, it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala, and it was at his imtance that blood-stained earth was recovered from a place outside the village and he also pointed out the trunk of the body of Darshan Singh. The learned judges of the High Court were satisfied, as appears from their judgment, that his was "the initial pointing out" and tl1erefore the case was covered even by the rule which, according to the counsel for the appellants_, is the rule to be applied in the present case.

The learned counsel for the appellants poinred out that the doctor who performed the post-mortem examination of the corpses, found partially digested rice in the stomach of the two deceased persons, and he

19"2

Lachman Singh

and Others

The States.

Faz/ Ali/.

Lackman Singh

and Ot'1er1

Tlie State,

Fazl Ali].

urged that from this it would be inferred that the occurrence must have taken place sometime at night after the deceased persons had taken their evening meals together. This argument again raises a question of fact which the High Court has not omitted to consider.

It may however be stated that a reference to books on medical jurisprudence shows that there are many factors affecting one's digestion, and cases were cited before us in which rise was not fully digested even though considerable time had elapsed since the last meal was taken. There are also no data before us to show when the two deceased persons took their last meal, and what article of food, if any, was taken by them along with rice. The finding of the doctor therefore does not necessarily affect the prosecution case as to the time of occurrence.

It was also contended that there being no charge under section 302 read with section 34 of the Indian Penal Code, the conviction of the appellants under section 302 read with section 149 could not have been altered by the High Court to one under section 302 read wlth section 34, upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternative.. ly, either under section 302 read with section 149 or under section 302 read with section 34.

The point has therefore no force.

In our opinion, there is no ground for interfering with the judgment of the courts below, and we accordingly disrujss this appeal and uphold the conviction and sentence of the appellants. We however wish to endorse the opinion of the High Court that having regard to the gruesome nature of the crime, the sentence imposed by the Additional Sessions Judge was inappropriate and his reasons for imposing the lighter penalty are wholly inadequate.

Appeal dismissed.

Agent for the appellant : R. N. Sachthey.

Agent for the respondent: P. A. Mehta.

Ram Piari

S. D. Sekhri

Naunit Lal

LACHMAN SINGH AND OTHERS

THE STATE

VIVIAN BosE JJ.

sec. 27

sec. 27

Lachma11 Singh

State

sec. 27

sec. 27

sec. 27

High Court of Judicature at Simla

Weston C.J.

Khosla

fai Gopal Sethi

R. L. Kohli

Gopal Singh

Additional Sessions Judge at Amritsar

Darshan Singh

Achhar Singh

High Court of Punjab

article 134( 1)

16th December, 1948

Inder Singh

Dalam

Amritsar

Saleempura

Ajaib Singh

Banta Singh

Bela Singh

section 302

section 149

section 201

section 149

Penal Code

section 201

section 149

Lachman Sing/

section 302

section 149

Penal Code

section 201

section 149

Punjab High Court

Natha Singh

Swaran Singh

Sulakhan Singh

Bela Singh

Taro

Gurcharan Singh

Dhadar

Massa Singh

18th December, 1948

Swaran Singh

Sakinala

Lachhman Singh

28th December, 1948

Lachhman Singh

Katha

Lachman Singh

Lachman Singh

Fazl Ali

Massa Singh

Charan Singh

Bahadur Singh

Gian Singh

Bhagwan Singh

Sethi

section 27

Indian Evidence Act

Lachman Singn

Lachman Singh

Katha Singh

section 27

Bahadur Singh

section 27

section 27

Salimpura

Lackman Singh

section 302

section 34

Indian Penal Code

section 302

section 149

section 302

section 34

section 302

section 149

section 302

section 34

R. N. Sachthey

P. A. Mehta