The general custom of the Punjab is against forfeiture of a widow's estate due to unchastity, and a special custom to the contrary must be strictly proved.

Kapur, J.

1. This is a plaintiffs appeal against an appellate decree of District Judge Balak Ram dated 7-10-1947 reversing the decree of the trial Court whereby the suit of the plaintiff had been decreed.

2. The parties to the case are kumhars of Sirsa Tehsil. Mussammat Dakhan is the widow of Harsukh who died before the year 1930. Dungar plaintiff is the real uncle (fathers brother) of Harsukh deceased. On 30-94932 a suit was brought by Musmmmat Dakhan for possession of 46 bighas 11 biswas of land situate in Mauza Chakkan in the Tehsil of Sirsa against Dungar. His defence was that Mussammat Dakhan had lost her right to the property as she had remarried Nanu, son of Dungar plaintiff, and in the alternative that she was unchaste. This suit was decreed and it was held by the learned Subordinate Judge that remarriage was not proved nor was unchastity established.

3. On 13-7-1944 Dungar brought a suit for declaration that he was owner by adverse possession of 25 Bighas 8 Biswas in Mauza Gandran and 43 Bighas and 10 Biswas in Mauaa Chakkan. He also sued for declaration that Mussammat Dakhan had contracted karewa marriage with Nanu, the plaintiffs son, & had also become unchaste & had thereby lost her right to possession of the estate of her husband Harsukh. The defence was that there was no remarriage and that she (Mussammat Dakhan) was carrying on a liaison with Nanu, son of Dungar, and therefore there was no forfeiture of the estate. The trial Court held that remarriage had not been proved, that according to the statement made by the widow she was unchaste with Nanu and others, that unchastity had been proved and that adverse possession of the land in Mauza Chakkan had been established. On appeal being taken to the District Judge, he held that unchastity had been proved and that under custom by which the parties were governed the widow was not divested of her estate and that adverse possession had not been proved. The plain-tiff has come up in appeal to this Court.

4. The appellant submits that according to question No. 15 of the Riwaj-i-am of Sirsa notorious unchastity results in forfeiture of the estate by a widow. Question 15 and relevant portions of the answer to this question appear at page 123 of the Riwaj-tarn of Sirsa and are as follows: "Question 15.-- What is the effect of unehastity upon the right of a widow in respect of the estate of her deceased husband? In the ca-se of widows who are not Hindus, what is the effect of their remarriage?

Answer 1 5: (a) If a soilless widow have succeeded to her husbands estate, and be proved unchaste, or leave her husbands house to reside permanently with her parents or elsewhere, or marry by nikah or karewa any one except a near agnate of her husband, she loses all right to her husbands estate. (All tribes). Note : If a widow bear an illegitimate child, or cohabit with any but an agnate of her husband, or elope from her home with any stranger, this is sufficient evidence of unchastity. All agree in saying that in such a case, or in the case of a widows marrying any but an agnate of her husband, she must give up land, house, and moveables of all kinds, even clothes and ornaments, and take away with her only the garments necessary for decent covering."

It is further stated that according to Kumhars even if she were to marry a brother of her deceased husband, a widow would lose her estate. In the present case, it is proved that Mussammat Dakhan has had children by Nanu and the question to be decided is whether she forfeits her estate because of this fact. According to the general custom of the Punjab which is contained in para. 31 of Rattigans Digest of Customary Law, which has been described by their Lordships of the Privy Council as a book of unquestioned authority in the Punjab in -- Mt. Subhani v. Nawab, AIR 1941 PC 21 (A), the position is as follows: "31. Amongst Hindus generally, and less frequently amongst Muhammadans, uncondoned adultery in the husbands lifetime deprives