JUDGMENT

Broadway, J. - Mahesha, a Khatri, holding land as an occupancy tenant, died leaving him surviving Mt. Gurjo and five sons by her. Hukman Singh and Harnam Singh, proprietors in the village, instituted a suit for a declaration that Mahesha had died without lawful issue and that they (the plaintiffs) were entitled to resume the occupancy tenancy. The defence set up was that Mt. Gurjo had been married to Mahesha and that this marriage was valid according to custom (in spite of the fact that she Was a Brahmani woman) and that, therefore, the issue of the marriage was legitimate. The trial Court found that Mahesha, a Khatri, had gone through some sort of ceremony with Mt. Gurjo, a Brahmani, and had lived with her as man and wife ever since, but that such a marriage was illegal under Hindu Law and no custom had bean proved which would render it legitimate. The plaintiffs were accordingly granted a decree as prayed.

2. Pars Ram and the other sons of Mahesha appealed to the District Judge, who after discussing the points raised, came to the conclusion that the factum of marriage itself was doubtful, but that whether an actual marriage had taken place or not it was invalid according to Hindu Law and there was not sufficient proof of any custom validating such a connection.

3. Pars Earn and his brothers have come up to this Court; in second appeal having obtained a certificate under Section 41 (3) of the Punjab Courts Act, III of 1914. I have heard Mr. Bishen Narain on their behalf. The certificate granted relates to a question regarding the validity of a custom, viz., whether a union between a Khatri and a Brahmani woman does or does not constitute a valid marriage. Mr. Bishan Narain quite frankly and properly admitted that such a marriage was not sanctioned by Hindu Law. He also frankly admitted that the evidence on the record did not establish the custom set up. He contended, however, that inasmuch as it has been held that a Hindu Jat may by custom marry a Brahmani woman, a presumption should be raised in favour of a Khatri being able to do the same. He drew my attention to Sahib Ditta v. Bela (1900) 50 P.R. 1900 which relates to Hindu Jats alone. As pointed out in Bhambul Devi v. Narain Singh (1915) 8 P.L.K. 1916 it would be dangerous to seek to extend custom by such logical processes as analogy. According to Ellis' Notes on Punjab Custom, pages 17--19, the initial presumption in the case of high caste Hindus is in favour of such Hindus following their personal law, and the onus of proving any special or general agricultural custom lies on the person asserting the existence of such. In these circumstances, I am unable to hold that the appellants have made out any case on which it can be held that by custom, general or special, a marriage between a Khatri male and a Brahmani woman is valid. I accordingly dismiss this appeal but, in the circumstances of the case, allow the parties to bear their own costs.