Judgement

BHARGAVA, J.:- This appeal has come up as a result of a dispute relating to succession to the property of one Sunder Singh. Sunder Singh, on 4th November, 1950, executed a will in respect of his property in favour of his niece, Udham Kaur. Subsequently, on 27th October, 1951, one Tarlok Singh executed a document divorcing his wife, Mst. Angrez Kaur, respondent No.1 in this appeal, on the ground that she frequently went away from his house without his consent and whenever he made enquiries from her, she became furious with him. In the document, he recited that Mst. Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh. According to respondent No. I, on this divorce being granted to her by her first husband, Tarlok Singh, she was married to Sunder Singh by a custom, known as Chadar Andazi. On 7th June, 1952, Sunder Singh revoked his previous will and in that document, acknowledged Mst. Angrez Kaur as his wife and left the property to her. Sunder Singh died in 1953. Thereafter, the appellant, Gurdit Singh, who was a collateral of Sunder Singh in the third degree, applied for mutation. On 12th December, 1954, mutation of the property left by Sunder Singh was sanctioned in favour of Gurdit Singh by the authorities. Thereupon, Mst. Angrez Kaur filed a suit on 17th March, 1955 claiming the property as widow of Sunder Singh. The trial Court decreed the suit, holding that respondent No. 1 had married Sunder Singh by Chadar Andazi and the marriage was valid. On appeal, the Additional District Judge set aside the decree of the trial Court and held that the marriage of Mst. Angrez Kaur with Sunder Singh during the life-time of her first husband, Tarlok Singh, was invalid and was not justified by any custom and, consequently, she could not be treated as the widow of Sunder Singh. Respondent No. 1, thereupon, appealed to the High Court of Punjab and the learned Judge, who heard the appeal, felt that the question of custom had not been properly tried by the trial Court and the first appellate Court. Consequently, he framed the following issue :-

"Is there any custom amongst the tribes of the parties according to which the divorce given by Tarlok Singh to Mst. Angrez Kaur is recognized enabling her to enter into a valid marriage by Chadar Andazi with Sunder Singh?"

This issue was remitted to the trial Court for recording a finding after giving the parties an opportunity to lead further evidence. Further evidence was led in the trial Court which answered this issue in the negative and against respondent No. 1. The District Judge in his report, endorsed the view of the trial Court. The High Court, however, held that the custom was proved under which Mst. Angrez Kaur could validly marry Sunder Singh, even though her first husband, Tarlok Singh, was alive, and, consequently decreed the suit. Gurdit Singh appellant has now come up to this Court against this decree of the High Court by special leave.

2. As is clear from the facts narrated above, the only issue that arose in this case was whether respondent No. 1, Mst. Angrez Kaur, had succeeded in proving the existence of a custom in the community to which she belonged, according to which, Tarlok Singh, her first husband, could divorce her, whereupon she was at liberty to enter into a valid marriage by Chadar Andazi with Sunder Singh, whose property is now under dispute. The parties are residents of the District of Jullundur where, according to Gurdit Singh appellant, no such custom, as claimed by respondent No. 1, exists amongst the Jats, which is the caste to which the parties belong. To urge this point, learned counsel for the appellant relied before us on The Digest of Customary Law by Sir W. H. Rattigan, and on the Riwaj-i-am recorded at the time of the settlement in 1885 and 1914-15. It was argued that Rattigan s Digest of Customary Law in the Punjab had always been treated as an authoritative exposition of the custom prevailing in the Punjab and had