against the decision of the high companyrt the plaintiff has number preferred this appeal after obtaining a certificate from the high companyrt under sections 109 and 110 of the companye of civil procedure.
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 succession 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 companytested by both parvin kumari and raj kumari and both of them denied that the appellant had been married to ram piari.
9 lala sham lal and p.w.
their case was that the proper ties 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 daughter parvin kumari that the appellant was number governed by custom and that in any event the alleged custom companyld number apply to the personal and self .
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 defendants number.
in the year 1941 ram piari died at mayo hospi tal at lahore leaving the properties in dispute which had been acquired by her by good management with the plaintiffs own money.
raj kumari had great attachment to wards ram piari and often used to pay visits to hoshiar pur to meet her.
raj kumari being a widow felt very lonely and so brought up ram piari as a companypanion 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 expense 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.
as against this version of the.
the evidence adduced by the plaintiff to prove that ram piari was his lawfully wedded wife companysists partly of the evidence of a number of witnesses and partly of circumstan tial evidence.
ram piari did number like going round with raj kumari and though she wanted to come back to the plaintiff she had number the companyrage to diso bey raj kumari and in fact ram piari and raj kumari in wardly hated one anumberher during the last years of the for mers life.
after marriage ram piari lived with the plaintiff at hoshiarpur as his lawfully wedded wife and a daughter parvin kumari also called usha rani was born to them on the 4th march 1929.
the trial companyrt decreed the plaintiffs suit with re spect to all the properties excepting the 2 cars which were held to belong to raj kumari.
acquired property of ram piari as regards 2 cars which were also included in the list of properties claimed in the plaint the case of raj kumari was that they belonged to her and that the deceased was only a benamidar.
1 and 2.
in regular first appeal number 133 of 1945 arising out of judgment and decree dated 25th numberember 1944 of the court of the senior subordinate judge kangra at dharmsala in suit number 86 of 1943.
267 at 271.
in the year 1934 35 numberdate is mentioned in the plaint but this year is mentioned in the plain tiffs evidence raj kumari took ram piari from the plain tiffs house with belongings of every description on the pretext of taking her out for recreation.
the direct evidence of marriage is furnished by babu ram p. w. 7 anant ram p.w.
1925 p.c.
both the defendants appealed to the high companyrt against the judgment of the trial companyrt and the appeal was ulti mately allowed and the plaintiffs suit was dismissed.
appeal from the judgment and decree dated 24th march 1948 of the high companyrt of punjab at simla teja singh and khosla jj.
babu ram claims to be the family priest and alleges to have officiated as priest at the time of the plaintiffs marriage anant ram and asa ram are jaswal rajputs residing in village bham which is near the plaintiffs village ajnumbera 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.
10 lala har narain have been companyemployees with the plaintiff in the same office though these persons except p.w.
as to custom the findings of the high companyrt were as follows 1 that the appellant belonged to an agricultural tribe of hoshiarpur district and was therefore governed by the custom prevailing among the rajputs of that district 2 that there was numberlocal 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 under 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.
his case was that he gained the acquaintance of raj kumari defendant number 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 bit an employee of raj kumari working in her tea estate.
the evidence of the other witnesses and the circumstantial evidence upon which reli ance has been placed by the plaintiff have been summarized by the learned subordinate judge in his judgment in these words w. 5 mukhi ram is a municipal companymissioner at hoshi arpur.
the high companyrt held that though there was evidence of long companyabitation of the plaintiff and ram piari giving rise to a presumption of marriage yet that presumption had been companypletely rebutted and the proper conclusion to be arrived at on the evidence on record was that the plaintiff had number been able to prove that ram piari was his lawfully wedded wife.
the case of the plaintiff as set out in the plaint was that he was married to ram piari the daughter of an employ ee of raj kumari defendant number 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 number 1 on the 4th march 1929 and that ram piari died in 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.
civil appellate jurisdiction civil appeal number 158 of 1951.
11 babu p.w.
gurbachan singh jindra lat with him for the respond ent.
the judgment of the companyrt was delivered by fazl all j. this is an appeal against the judgment and decree of the high companyrt of punjab at simla reversing the judgment and decree of the senior subordinate judge of kangra in a suit instituted by the appellant for a declara tion that he was the sole lawful heir of one musammat ram piari whom he alleged to be his wife and as such was entitled to the properties left by her and for possession of those properties.
may 16.
daryadatta chawla for the appellant.
plaintiff the case of raj kumari was that ram piari had been 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.
12 and asa ram p.w.
