The Anandpur Sodhis are admittedly descended from Guru Ram Dasji. One of his descendants in egree was one Sham Singh: the sixth Chaur Singh (This line was known as (dicd leaving a widow, Mat. Gopal Kaur.) 66 been held from time to time by Gulab Rai, Sham Singh, Naehar Singh by turns. Surjan Singh was not the first who possessed the manjhi. All the descendants of the persons above named must al-o be said to possess the importance which is claimed on this ground. Sodhi Gurbachan Singh's mother is alive. The plaintiff's father and Sodhi Gajindar Singh, father in-law of defendant No. 1, separated 40 or 45 years ago though a good deal of the property is still held jointly. The custom prevailing in the family of the parties is that the widow of a man who died without a male issue is entitled to maintenance only. This custom applies to all the property left by the deceased whether ancestral or self-acquired." 66 All the immoveable property except the squares and the land in Mauza Sahuta is ancestral. The squares were acquired by Sothi Gajindar Singh." The following issues were framed: (1) Whether a custom prevails in the family of the parties, by virtue of which Mt. Har Narinjan Kaur is entitled to maintenance only? (2) If so, what is the maintenance to which she is entitled ? ( ) Can plaintiff sue for the share of Moti Singh, defendant, when he and his sons are alive? (4) Does not a suit lie in a Civil Court for share of the puja income? On the first issue relating to the custom set up in the plaint the trial Court found against the plaintiffs and dismissed the suit. The plaintiffs have accordinlgy preferred this appeal The simple question which is to be decided by us is whether the plaintiffs have succeeded in establishing the custom relied upon by them. A good deal of argument has been addressed on the point that the family to which the parties belong occupies an exceptionally exalted position among the So this of Anandpur, and that in fact the plaintiff, Ram Narain Singh, is included in the list of the Punjab Chiefs. It has, therefore, been contended that this family, descended from Surjan Singh, has a special custom of its own different in essential particulars from the customs governing inferior men among the Sodhis. This exceptional position of the family is claimed on the following additional grounds : (1) That the galdinashin is usually in possession of the manjhi. It is, however, clear that the manjhi has (2) That pahul was administered to the Rajas of Patiala and Kapurthala by Har Narain Singh, but it appears that palul had been administered by Birjinder Singh, the plaintiff's father, so that if there was any reli gious efficacy, it had commenced since the time of Birjinder Singh. (3) It is claimed that they are gurus, but admittedly neither the plaintiffs northers who were called gurus after the 10th guru are gurus in the real sense. Indar Singh (P. W.12) at page 270, line 33, of the paper book says that the other Sodhis of Anandpur were also called gurus Sothi Balwant Singh (page 289, line 9, of the paper book) says that all the Sodhis are entitled to be called gurus. (1) That the members of this family held the position of Darbaris. Ac cording to Punjab Chiefs' by Sir Lepel H. Griffin, page 126, some of the representatives of the third and fourth. families from Sham Singh were als Darburis, and the representatives of all the four branches held Jagirs. On this ground also no exceptional position can be claimed. Then again, having regard to the position of the family in later times it is futile to claim any importance or greatness. According to the above mentioned book 'Punjab Chiefs the family had dwindled down, and in fact for its support the Govern ment had to provide means by gran ting pensions and jagirs. At the time of Birjinder Singh there was practica ly no land possessed by the family Diwan Devi Ditta Mal, P W. 31, had made the following significant state ment on the subject: * At the time when Sodh Birjinder Sing died, he had no land and he used to receive only Govern ment pension and jagir from the Patiala State. There was some in come from the Manji Sahib at Anand pur and the gurdwara at Kiratpur. A 340; .ine 2, of the paper book)". Thus if there was any greatness or importance, it had departed. Granting that the family did occupy a position of importance once and tried to occupy that of Ruling Cheifs can it be said that they adopted the custom obtaining among the Chiefs? of From the cour-e of descent among the Sodhis of Anandpur it is clear that the rule of primogeniture was never adopted. On the contrary, all the brothers and sons have been in heriting without any regard to the rule of primogeniture and impartibility of the estate; even the income derived from the puja was divided among brothers. The plaintiff, Ram Narain Singh, has claimed that Bari Sarkar means the descendants Surjan Singh. But Moti Singh, the other plaintiff, has stated that by Bari Sarkar is meant the descendants of Nahar Singh (see page 408, line 18, of the paper book). Telu Mal (page 310, line 16, of the paper book) states that the Bari Sarkar are the descendants of those who held the gaddi. If this is true, the descendants of Nahar Singh and Sham Singh will also be called Bari Sarkar, because both these also held the galdi. Bawa Ram Singh witness, at page 359, line 5, of the paper book, also states that Sham Singh was gadainashin. Bikarman Singh (P. W. 6), at page 254, line 29, of the paper book also has stated that Surjan Singh's father, Nahar Singh, was called Buri Sarkar. Thus, in this state of contradiction it is not possible to hold that Surjan Singh's famly was only entitled to the title of Bari Sarkar. Buri Sarkar either applies to all the descendants of the Tikus or it applies to the Tika for the time being. According to "Punjab Chiefs" and the Gazetteer of the Ho-hiarpur District also it is clear that all the descendants of Nahar Singh are Sarkars. It is for the first time that Surjan Singh's family is said to have a special and separate custom from the rest of the Sodhis. Before 1914 there is not a single instance in which this claim to a special family custom was put forward. The pedigree table, Exhibit P. 123, dated the 4th of September 1911, printed at pages 107-190, is headed thus: Surat hal wa shajra-i-nasab khandan Solhi sahibun, Anandpur, District Hoshiarpur.” All the customs relating to the Sodhis are detailel at the foot of the shajra and apparently are applicable to all of them. No statement is appended showing that the family of Surjan Singh had any special custom of its own. This shojra was prepared at the instance of Tika Ram Narain Singh (see the evidence of Hukam Singh, P. W. 21, at gage 29 of the printed paper book). This witness has further stated (see page 293) that all the Sothis of Anandpur, including Tikas, are governed by one and the same custo n. This witness belongs to the Choirali branch. Before deciding what the precise custom is by which the parties are governed let us take into consideration the question whether the family of Surjan Singh is governed by a special custom of its own or is it governed by the same custom by which the other So this of Anandpur are governed [His Lordship after dealing with oral evidence proceeded as follows.-] From the above summary of the evidence given by the plaintiffs' own witnesses it is clear that the custom prevailing in the family of Bari Sarkar, whatever it may be, is not in any way different from that prevailing in the other families of the Anandpur Sodhis. Now, the custom set up by the plaintifs in this case is most unusual as it is opposed bot's to the Hindu Law and the general agricu.tural custom in this province. The plaintiff himself, in his statement at page 413 line 26, of the paper book, admits that in matters of succession his family follows the Hindu Law. But, of course, he pleads that in the Bari Sarkar family in the matter of succession by widows there is a special custom. Plaintif No. 2, Sohi Moit Singh, has stated that "we follow the Hindu Law in all matters excepting three or four particular ceremonies." He is not able to give a detail of the respects in which they follow the Hindu Law, but he has stated that one of the exceptions is that a widow gets maintenance no matter whether her husband's brother be separate or joint. The burden of proving the alleged exception, namely, special family custom, therefore, lies very heavily upon the plaintiffs. In the case of Ramalakshmi Ammal 7. Sivanantha Perumal Sethuraya (1), their Lordships of the Privy Council made the following authoritative observation : "Their Lordships are fully sensible of the importance and justice giving effect to long established usages existing in particular districts and families in India, but it is of the jessence of special usages modifying the ordinary law of succession, that they should be ancient and invariable: and it is further essential that they should be established so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends." In the case of Zarif Khan V. Amir Khan (2) a Division Bench of the Chief Court, relying upon the pronouncement of their Lordships of the Privy Council in the case just mentioned, held that a party relying upon a special family custom must prove that such custom was ancient, invariable and definite. At page 293 of the report the learned Judges made the following pertinent remark :-- 'Another point to be borne in mind is that the family is not shown to be an important and ancient one; nothing is known before Nur Ulah Khan's time, and definite information is available only after the return of Muhammad Khan to British territɔry, which took place less than 50 years ago It is unusual to find a special custom regulating the law of inheritance in such a family under such circumstances." This remark has a special bearing on the facts of this case. A reference (1) [187] 14 M.I.A. 570-3 Sar.10812 B.L.R. 396-17 W.R. 552. (2) 85 P.R. 1901. to page 25 of the Gazetteer of the Ambala District, published in 1892, will show the confusion that prevailed in the istrict, especially among the Sikhs. Under those circumstances it was hardly possible for any cus tom to have grown up in the family of Sodhis. Moreover, having regard to the observation made in Zarif Khan v. Amir Khan (2), Surjan Singh's family cannot be said to be an ancient one. We mention this only by the way. We shall deal with the matter more fully when dealing with the evidence produced on behalf of the plaintiffs to establish this custom. In the case of Charanjit Singh, ▼. Amir Ali Khan, (3) the learned Judges of a Division Bench made the following observation : "It should be quite unnecessary to say that an alleged fam ly custom can never be held established merely on the strength of one or two instances. A custom to be legally binding must be ancient, certain a:d invariable, and family custom at variance with the general custom of the personal law of the parties requires even more cogent evidence than an alleg d general custom before it can be held to be established." In the case of Chandika Bakhsh v. Muna Kunwar (4), a family custom alleged to exist amongst the shban Thakars of Oudh, in dero a tion of the ordinary Mitakshara law in force there, WAS held by the Judicial Committee not to have been proved by four instances of the cus tom of comparatively modern date. In the case of Durga Charan Mahto V. Raghunath Mahto (5), a Division Bench of the Calcutta High Court following the rule laid down in Hurpers! ad v. Sheo Dyal (6), held : "that custom is a rule wich in a particular fami'y or in a particula district, has from long usage obtain ed the force of law; it must be (3) [1921] 2 Lah. 243-64 I.C. 892. (4) [190] 24 All. 273-29 I.A. 70 4 Bom L.R. 276-6 C.W.N. 4258 Sar. 2 3 (P. C.) (5) [1913] 18 C.L J. 539-18 C.W.N 55-20 I.C. $10. (6) [1876] 3 I.A. 259-26 W.R. 55. (P. C. ancient, certain and reasonable, and being in derogation of the general rule of law must be construed strictly." Bearing in mind the rule and the principles laid down in these cases we shall now proceed to examine and discuss the evidence which has been produced on behalf of the plaintiffs in order to see whether they have succeeded in proving that by a special custom obtaining among members of the family to which the parties belong the widow of a deceased proprietor is entitled merely to maintenance and not to a life estate according to the Hindu Law. Mr. Ram Chand Munchanda, in spport of his contention that by the special custom of the family of Surjan Singh a widow is entitled to maintenance only. has relied upon the following evidence : (a) Statements made by witnesses in the case of Narindar Singh, v. Mussammat Anand Kaur, the widow of Didar Singh. (b) Statemer ts of witnesses in this case; (c) Certain alleged instances in the family of Surjan Singh of widow's receiving maintenance only; and. (1) Instances in other Sodhi families of Anand pur. We shall deal with each class of evidence seriatim : (a) Mt. Anand Kaur, the widow of Didar Singh, was in possession of Chak Guru. She adopted her daughter's son, Mehr Singh. In 1878 a suit s brought by Narindar Singh and Gajindar Singh, sons of Diwan Singh, and Har Narain Singh, and Rain Narain Singh, sons of B.rjinder Singh the third son of Diwan Singh, for a declaration that Mt. Anand Kaur had no power to make the adoption to constitute Mehr Singh her successor to the property after her death. In this suit a large number of witnesses were examined to prove the custom relating t the right of a widow to succeed on her deceased husband's death. Copies of the statements of those witnesses have been produced as evidence in this case. They are found translated and printed in the paper book at pages 55 88. Objection was taken to the admissibility of those statements in evidence. Mr. Ram Chand Monchanda contended that the witnesses, copies of whose statements have been produced in this case, were dead and these statements were, therefore, admissible. under clause (4) of S. 32 of the Indian Evidence Act. According to that clause a statement of relevant facts made by a person, who is dead, is relevant when the statement gives. the opinion of any such person, as to the existence of any public riht or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen. Now, it is clear that a controversy had already arisen when the witnesses made these statemen ́s in the case above mentioned. In the alternative Mr. Ram Chand relied on S. 33 of the same Act, but even this section does not make the statements relied upon admissible in evidence, because the proviso to that section lays down that a statement by a deceased witness is admissible only when the proceeding in which the statement was made was between the same parties or their representatives-in-interest. It is clear that the parties to this suit are not the same, nor are they their representatives-in-interest. Another condition laid down in the proviso is "that the questions in issue were substantially the same in the first as in the second proceeding." In the previous suit the right of Mt. Anand Kaur to a life interest was admitted. Her right to make an adoption was challenged, while she claimed an absolute interest in the property in her possession. Thus the question in issue in the suit of 1878 was entirely different from that arising in the present case. In the last resort the learned vakil relied on the provisions of S. 49 of the Evidence Act and argued that the statements of the witnesses were relevant as opinions of persons having special means of knowledge on the custom pleaded; but the opinions relied upon, being contained in the statements of witnesses who are dead, cannot be received in evidence unless they are |