JUDGMENT
Mukerji, J.
1. The following pedigree will be useful in appreciating the facts of the case, which are however not very complicated.
Bahadur Singh
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Narain Singh = Mt. Kharak Singh died
Bhoi = Mt. Tika in 1926
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Mt. Asharfi (Narain Jai Karan Singh
Singh died about (one of the
December 1920 Mt. sons.)
Asharfi born, 1905 or
about that time),
Jagadish Singh (mar-
ried about 1917-1918)
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Balraj Singh, plaintiff,
minor.
2. The last male owner of the property in suit was Narain Singh. The plaintiff’s case is that he is Narain Singh’s daughter’s son, being the son of Mt Asharfi, who in her turn, was the daughter of Narain Singh by the wife Mt. Bhoi. There is a suggestion in the plaint that even if Mt. Asharfi was a daughter of Mt. Tika, the plaintiff was equally entitled to the property of Narain Singh. Defendant 1 calls him self an adopted son of Narain Singh The plaintiff’s case is that Jai Karai Singh defendant 1, who is a son of Karak Singh was neither adopted in fact nor in law by the widows c Narain Singh.
3. He also pleaded that Narain Sing’ never gave permission to his widow to adopt. Mt. Asharfi instituted a suit for recovery of the property, but she made a compromise which is not binding on the plaintiff. On these allegations the plaintiff seeks a declaration that defendant 1 is not an adopted son of Narain Singh. He asks for such further reliefs as the facts of the case might disclose his title thereto.
4. The two widows of Narain Singh and Mt. Asharfi were made parties to the suit.
5. Jai Karan Singh alone defended the suit under the ‘guardianship of Mt. Jahangir Kunwar, his natural mother. His natural father was dead at the data of the filing of the written statement.
6. The defence was that Mt. Tika was not a married wife of Narain Singh that she wag by profession a prostitute belonging to the hill tribe of Naiks, that she was a mere concubine of Narain Singh, that Narain Singh could never contract a lawful marriage even in the Karao form with Mt. Tika, as she did not belong to the Gujar caste, that Mt. Asharfi, mother of the plaintiff, was Tika’s daughter although by Narain Singh, that therefore Balraj Singh is no heir to Narain Singh, that Narain Singh gave authority to Mt. Bhaoto make an adoption on his death, that there is a custom in the caste by which no authority from husband was needed to a Gujar widow to make an adoption to her husband, that the suit was barred as res judicata, and that there was an adoption perfectly valid in fact and in law.
7. The learned Subordinate Judge held that Mt. Tika was a woman belonging to the hill tribe of Naiks, that she was never married in the Karao form with Narain Singh, that such a Karao form of marriage would not be valid among the Gujars, that therefore the plaintiff was no heir to Barain Singh that Narain Singh gave no authority to Mt. Bhao to make an adoption, that the defendant had failed to prove a custom by which husband’s authority in the matter of adoption could be dispensed with among the Gujars, that the adoption did take place as a matter of fact but for want of authority it was bad in law that the suit was barred as res judicata, having regard to the suit instituted by the plaintiff’s mother and that as the plaintiff had no title he could not maintain a suit for a declaration.
8. In this Court in the appeal which is by the plaintiff the learned Counsel has accepted the finding that Mt. Asharfi, the mother of the plaintiff, was the daughter of Mt. Tika and not of Mt. Bhoi. He however contends that there is enough evidence to show that Mt. Tika was a Gujar by caste and even if she ‘ was not a Gujar by caste a Gujar could lawfully make a Karao marriage with any woman of any caste except a Brahmin woman, that in any case Mt. Asharfi was treated and was in fact and in law a legitimate daughter of Narain Singh and that therefore Balraj Singh the plaintiff was entitled to succeed to Narain Singh. He also urged that the suit of Mt. Asharfi did not operate as res judicata.
9. The learned Counsel for the respondent disputed the correctness of the finding that among the Gujars custom did not permit a widow to make a valid adoption to her husband without the permission of her husband. The learned Counsel conceded that the decree in Mt. Asharfi’s suit did not operate as res judicata. Ho maintained that the learned Judge was right in his other findings.
10. The first question that we have to consider is whether Mt. Tika was a Gujar woman, and if not to what caste she belonged, and whether in the case of not being a Gujar, a valid Karao marriage could take place between herself and Narain Singh, and further whether such Karao marriage did in fact take place.
11. On this point we have to observe to start with that Mt. Tika did not go into the witness box. She was the best person to tell us who she was, who wore her parents and whence she came. It was not till the 15th witness on plaintiff’s behalf was examined that it was disclosed that Mt. Tika was the widow of one Rosban Singh a Gujar of the village of Sunpura. No evidence however was led except that of the witness Bhikkhan Singh to prove that this was true. The learned Subordinate Judge had disbelieved Bhikkan Singh, and the learned Counsel for the appellant has not asked us to believe him. On the other hand several witnesses have come from Sunpura to prove that Roshan Singh was never married to Mt. Tika. The defendant has also examined several witnesses to prove the antecedents of Mt. Tika. He examined Charar Singh, who professed to be a uterine brother of Mt. Tika herself. He said that he and his sister belonged to the Naik caste in the hills among whom the women take to the profession of prostitution. The defendant has adduced evidence to show that before Tika came to live with Narain Singh some 40 years before the present litigation she was actually plying the profession of a prostitute and a. dancing girl. Certain amount of documentary evidence has also been adduced in support of this story. We discard the evidence afforded by the account-book produced by Bishan Sahai although it is supported by the witness Ram Partap Singh, but we have no reason to discredit the account-books filed on behalf of defendant 1 as books kept by Narain Singh and his brother Kharak Singh. There. is nothing in the judgment of the Court below to show that the genuineness of these accounts had been challenged in the Court below. Extracts from these accounts books will be found printed at p. 157 and onwards. These show that Mt. Tika was in regular receipt of a pay of Rs. 30 per month. In the books she is described as a hill woman. The ac-counts also show that Hira son of the defendants’ witness Chandan Singh used to live with Narain Singh and Narain Singh met the costs of his education. Among the witnesses examined there is one Ramchander, a Mukhtar. He was. the legal adviser in revenue matters, of Narain Singh and he swore that he had known Mt. Tika since 1902. He also swears that Narain Singh found it difficult. to get a suitable match for Mt. Asharfi as her mother had been a prostitute. Ramchander was requested by Narain Singh to see if a suitable match could be found from his Gujar clients.
12. As against all this documentary and oral evidence we have no direct evidence to support the plaintiff’s case.
13. Reliance has been placed on the circumstance that Mt. Asharfi was married in a – family which was respectable-among the Gujars and a large number of caste-men and relations came to the marriage. The defendant’s witness Ram-chander himself says about 100 persons of Narain Singh’s Biradari joined Mt. Asharfi’s marriage. We have no reason to disbelieve Ram Chander, but the mere fact that Mt. Asharfi was well married would not necessarily prove-that her mother was not a non-Gujar woman who had been in the keeping of Narain Singh. The marriage may have been brought by concealment of the fact that Mt. Asharfi was Tika’s daughter, or it may be that, because of the fact that Tika had been living continuously for a long time with Narain Singh, the caste-people were not strict enough to visit the sin of the mother on the head of the child. Mr. Crooke, in his well-known book on Tribes and Castes, Vol. 2, at p. 44, points out that the Gujars were very lax in their matrimonial arrangements, and they took freely concubines from other castes and their offspring were, in most cases, recognized as legitimate. The present instance may have been one of the similar eases referred to by Mr. Crooke. But when all is said, we see no reason, on the evidence to differ from the finding of the learned Subordinate Judge that Mt. Tika was not a married wife of Narain Singh.
14. There is an admission of Narain Singh himself on the record, it appears that one Jairaj brought a complaint against a certain person, and Narain Singh appeared as a witness in the case. For the defence it was suggested that Jairaj was a man of no means and had been in the service of Narain Singh’s prostitute, Jairaj’s deposition in the criminal case will be found printed at p. 101 and the statement is at p. 102. At p. 105 is the statement of Narain Singh and he is reported to have stated : ” Jairaj does not work for me or my prostitute.” It has nowhere been suggested that Narain Singh had over and above two wives a prostitute in his keeping. The prostitute to whom Narain Singh refers must have been Tika herself, who has been described, as already mentioned by us, in the family account-books as a hill woman.
15. As regards the contention of the plaintiff that a valid marriage could be contracted between Mt. Tika and Narain Singh, we may point out that it was never pleaded that as a matter of custom a Gujar man could make a valid karao with any non-Gujar woman. Evidence however was adduced on both sides on this point, and we are satisfied that for a valid karao it is necessary that there (should be a caste marriage and not an inter caste marriage. In the caste-ridden Hindu India it is almost inconceivable that a man of one caste could marry a woman of another caste, without infringing the Caste rules. Even Mr. Crooke refers to non-caste women kept by Gujars as ” concubines ” and not as ” karao wives.” In the wajibul-arz of the village Bhawapur and Baklana, which will be found printed at pp. 189 and 191 of the record, there are clear statements that karao marriages would bemade only with caste-women and not with non-caste women. We have been told that these documents do not afford proper evidence of custom, but if these were not matters of custom, there was hardly any necessity for recording them at all. The wajibularz of Bak-lana at p. 191 distinctly states that the heading under which the statement comes relates to ” customs relating to adoption, remarriage and inheritance.” The Wajibularz of Bhawapur printed at p. 189 also relates to transfer of property and remarriage. There is a large number of witnesses examined by the defendant who have proved that all the karao marriages take place among the caste-people alone. For the plaintiff no instance of a non-caste marriage has been given and the explanation has been given, for want of instances, namely, all karao marriages are performed in secrecy and therefore witnesses are not available.
16. We hold that there was no marriage between Mt. Tika and Narain Singh, and even if there had been any such marriage, it would not have been valid according to custom and law. The presumption of marriage could arise only if the antecedents of Tika had not been known or if she had been a Gujar woman.
17. The next question is whether in spite of Tika being a mistress of Narain Singh Mt. Asharfi would be Narain Singh’s legitimate daughter and would be in a position to make Balraj Singh an heir to Narain Singh, under the Hindu law. No authority his been cited for the proposition that even among the Sudras an illegitimate daughter is an heir of her father. The Hindu law recognizes an affiliation of an illegitimate daughter to her mother, but not to her father. The case of Dandappa v. Bhemawa A.I.R. 1921 Bom. 137 may be referred to on the point. The result is that the plaintiff has no right to ask a declaration that defendant 1′ was not validly adopted.
18. In view of this finding of ours it is not necessary to enter into the question whether Mt. Bhoi could make a valid adoption to her husband in the absence of a permission from Narain Singh. On this point however there is a large body of evidence consisting of documents and witnesses. The wajibularaiz of Bhawapur (189), Baklana (191) Hadarpur (193), Ruknuddinpur (197), Fatehpur Thanaura (201), Dayalpur (205) and other places, all go to show that a Gujar widow has the right to adopt a son to her husband. In view of the possible argument that the custom recorded was nothing but a reiteration of the rule of Hindu law that a widow can adopt with the permission of the husband, the learned Counsel for the respondent has cited the case of Biswa Nath v. Jugul Kishore A.I.R. 1923 P.C. 90. Their Lordships of the Privy Council held that the entry in the Wajibuljarz relating to the custom should be read as following a widow to adopt without the permission of the husband. The reason given was that if the husband’s permission was necessary, there would be no sense in recording the custom at all.
19. The witnesses Sikandar Singh, Lalta, Bharat Singh, Ranjit Singh, Hira Singh and Basdeo Singh quote instances in which adoptions were made by widows without the previous permission of their husbands. We have thus at least eight instances of such adoptions.
20. We hold therefore that the adoption of the defendant is valid and Mt. Bhao did not stand in necessity of obtaining her husband’s permission to the adoption.
21. We have already mentioned that the finding of res judicata has not been supported by the learned Counsel for the respondent. We ourselves are of opinion :that it is only a judgment of the Court, given in a fair fight between a female heir representing the estate and a claimant that can operate as res judicata against a more distant reversioner. In this case Mt. Asharfi’s suit was compromised and the result cannot bind the hands of the plaintiff.
22. In the result, the appeal is dismissed with costs. Having regard to the fact that the parents of the plaintiff have not taken the trouble to file the suit on behalf of the minor plaintiff and that a third person Sohan Singh has filed the suit and on his own statement (see pp. 8 and 9 of the record) has undertaken to pay all the costs of the successful defendants, we direct that the costs of this appeal of defendant 1 be paid by Sohan Singh, the next friend of Balraj Singh the minor appellant. As there is no appeal by Jai Karan Singh we cannot disturb the order as to costs as made by the Court below.
