Narula, J.
1. One Sadhu son of Bishna, a Jat of village Udha, tehsil Nabha, district Patiala, an unmarried young man, died on May 5, 1956, leaving behind land measuring 190 Bighas 16 Biswas in his village. Mangal Singh defendant-respondent, a distant collateral of the deceased took possession of the land. Mst. Gurdial Kaur plaintiff-appellant, the widowed mother of the deceased, filed a suit on March 8, 1958, for possession of the land left by her ion as his sole heir. In order to invoke the benefits of the Hindu Succession Act, she claimed that Sadhu had died in June, 1956. But the parties agree that on account of the concurrent findings of fact recorded by both the Courts below about the date of Sadhu's death being May 5, 1956 the provisions of Hindu Succession Act would not apply to this case and the question relating to the estate of the deceased shall have to be decided according to the usage by which the parties were governed. It is further not in dispute that according to the said usage the plaintiff-appellant would be entitled to the estate of her son to the exclusion of the defendant-respondent if the plaintiff had not remarried. The factum of the usage governing the parties about a mother losing her right to inherit the estate of her son on her getting remarried as she does not inherit the estate as the mother of the deceased, but as the widow of the father of the deceased has also not been disputed before us.
As a result of contest by the defendant, following five issues were framed bv the trial Court:--
'1. Whether the parties are governed by custom in matters of marriage and succession?
2. Whether Sadhu died in June, 1956?
3. Whether the plaintiff has remarried and if so its effect?
4. Whether the principle of res judicata applies to the case and if so its effect?
5. Relief'
The plaintiff-appellant did not contest the first issue. The trial Court by its judgment, dated July 31, 1959, accordingly held that the parties were governed by custom in matters of marriage and succession, that Sadhu had died on May 5, 1956, and not In June, 1956, that the evidence led by the parties did not prove that the plaintiff had remarried, and that no evidence was produced to support the plea of res judicata. As a result of the above said findings, the suit of the plaintiff-appellant was decreed with costs. The only question that was argued in the defendant's first appeal before the District Judge, Patiala, related to issue No. 3.
Shri H. S. Bhandari the learned District Judge by his judgment, dated December 14, 1959, reversed the finding of the trial Court on that issue and held that the documentary and oral evidence produced on the record conclusively established that the plaintiff-appellant had remarried one Jnder Singh, and that, therefore, according to the admitted custom which governed the rights of the parties, she had lost all claims to succeed to her son in respect of the property in dispute. In view of his said finding, the learned District Judge accepted the defendant's appeal set aside the order of the trial Court, and dismissed the plaintiff's suit with costs throughout.
2. In this regular second appeal Mr. M. R. Sharma, the learned counsel for the plaintiff-appellant has firstly contested the finding of the trial Court on issue No. 3. He concedes that prima facie the subject-matter of the issue relates to a pure question of fact and that normally he would not be entitled to question the finding of the first appellate Court on such a point. He has, however, contended that in the absence of any definite evidence of Karewa. the learned District Judge could not have held the marriage to be proved as the living of the plaintiff-appellant with Inder Singh should be consistent with her leading an unchaste life and not necessarily with marriage with Inder Singh, and that in case of mere unchastity she was not liable to be disinherited. Not only was no such plea taken in any of the Courts below and not only would such a plea be inconsistent with the stand taken by the plaintiff-appellant in both the Courts below denying her living with Inder Singh and denying having had any children from Inder Singh, but in fact this plea is unsustainable on the evidence on record through which we have been carefully taken by the learned counsel for both sides.
It has been proved from the evidence on record of this case that Waryam Singh and Inder Singh were real brothers, that Waryam Singh was married to one Tejo, that Gurdial Kaur plaintiff who was the real sister of Tejo had been living with Inder Singh for more than 15 years, that Waryam Singh and Inder Singh were living separately, and that Inder Singh had at least one son from the plaintiff whose birth entry Exhibit D. E. has been duly proved. Some half-hearted attempt -vas made by Mr. Sharma to argue that prope; mode of proof of Exhibit D. E., was not adopted in the trial Court. He soon realised that no such argument was open to him in view of the [act that no objection to Exhibit D. E.. being tendered in evidence had been taken on behali of his client in the trial Court. The parentage of Inder Singh has been given in the entry Puran Lam-bardar at whose instance the entry purports to have been made in the police station has himself appeared ai a witness and has deposed to the relevant facts. His testimony has not been shaken in cross-examination in any manner, Mst. Gurdial Kaur was living with Inder Singh in village Khurrana at a substantial distance from village Udha. The name of Mst. Gurdial Kaur is also entered in the voters list Exhibit D. D., against the house in which Inder Singh was living and she is shown therein as the wife of Inder Singh.
Exhibit D. F., the report of the process-server dated April 9, 1958, on summons issued to Mst. Gurdial Kaur at Inder Singh's address in village Khurrana about her having refused to accept service of the summons, is also significant. Besides the oral evidence led by the defendant in support of his plea about the plaintiff's remarriage which is cogent and consistent and which has been rightly believed by the Court below, it is significant that neither Inder Singh nor Gurdial Kaur plaintiff herself dared to enter the witness-box and to deny that they were living as husband and wife or that they were married or that they had children from each other. Even Mst. Gurdial Kaur's lister Tejo or her husband Waryam Singh has not been produced. The Court below was correct in inferring from the above facts and other evidence on record that there was nothing to rebut the legal presumption in favour of marriage when a man and a woman have been proved to have been living together continuously for a number of years and having cohabited and got children. In this view of me matter it is impossible to disturb the pure finding of fact recorded by the learned District Judge on issue No. 3.
The law laid down by a Full Bench of the Lahore High Court in Mussammat Desi v. Lehna Singh, 46 PR 1891 (page 246), to the effect that a mother was not entitled to succeed according to custom as a mother but only as the widow of the father of the deceased, and that according to custom she is no longer the widow of the father of the deceased if she has remarried, and has, therefore, no title to the estate of her son against the reversioners, has all along been followed by the Lahore High Court and subsequently by this Court, and no Judgment to the contrary has been brought to our notice. Nor has Mr. Sharma been able to contest the correctness of this decision.
3. Mr. Sharma then submitted that he should be permitted to argue a new ground of appeal which raises a pure question of law. This relates to questioning the validity, legality and enforceability of the custom in question on the ground that the usage based on the said custom is violative of Article 15 of the Constitution. Tn view of the law laid down by their Lordships of the Supreme Court in Yeshwant Deorao v. Walchand Ramchand, AIB 1951 SC 16, and M. K. Ranganathan v. Government of Madras, AIR 1955 SC 604, we permitted Mr. Sharma to argue this new point though it was neither raised by him in any of the Courts below nor raised even in the grounds of this second appeal.
4. The argument of the plaintiff-appellant is that usage is as good as a statutory law as both have been equated in the definition of 'law' contained in Article 13(3)(a) of the Constitution, and that in so far as the usage in question discriminates against fate as compared to other Hindus governed by their personal law, the usage discriminates merely on the ground of caste or race; and in so far as this law disinherits a mother on remarriage as compared with a father who continues to be an heir of the estate of his predeceased son in spite of remarrying, it discriminates against females merely on the ground of sex; and that on both these counts, the fundamental rights of the plaintiff-appellant guaranteed to her under Article 15 of the Constitution have been violated.
The argument appears to be wholly misconceived. According to the provisions of Section 5 of the Punjab Laws Act (4 of 1872) in questions regarding succession, marriage etc., the rule of decision has to be custom applicable to the parties concerned only if the custom is not contrary to justice, equity and good conscience, and if the same has not been altered or abolished by statute or not declared void by any competent authority. The law based on the custom in question has no doubt been abolished after the coming into force of the Hindu Succession Act, but as already observed, succession in the instant case having opened before the Act came into force, this case will have to be decided according to custom. It is not disputed that the custom in question has not been altered or abolished in any other manner nor has the same been declared to be void by any competent authority. The law based on the custom in question is, therefore, pre-Constitu-tion law.
Article 13(2) of the Constitution prohibits only the State from making any laws which take away or abridge the rights conferred by Part III of the Constitution. Mr. Sharma submitted that though the law based on the custom in question has not been made by the State, judiciary is a part of the State according to the decision of the Supreme Court in Jayanti-lal Amratlal Shodhan v. F N. Rana, AIR 1964 SC 648, and that, therefore, the judgment of the learned District Judge is liable to be set aside as it has given effect to a law which contravenes Article 15. This argument is wholly fallacious as the definition of 'the State' in Article 12 of the Constitution does not include a Court of law If the argument ot discrimination based on caste or race could be valid, it would be impossible to have different personal laws in this country, and the Court will have to go to the length of holding that only one uniform Code of laws relating to all matters covering all castes, creeds and communities can be constitutional. To suggest such an argument is to reject it. Nor is there anything in the alleged discrimination on the ground of sex because rights of succession varying between different heirs belonging to different sexes have to be determined according to the personal law or the usages by which a party is governed and it ts too much to suggest that all heirs belonging to any sex must have the same rights of inheritance. We have, therefore, no hesitation in rejecting this ingenious argument of Mr. Sharma and in holding that the usage in question does not infringe Article 15 of the Constitution.
5. The last submission of Mr. Sharma was that no custom can be enforced if it is contrary to some statute or contrary to public policy. There is no quarrel with this proposition of law, but when asked to show in whal manner the custom in question was opposed to public policy, Mr. Sharma was again driven to his philosophy of the usage in question being violative of Article 15 of the Constitution. That argument has already been rejected by us. He then referred to the judgment of a Division Bench of the Lahore High Court in Fateh All Shah v. Muhammad Bakhsh, AIR 1928 Lah 516, and argued that as the Lahore High Court has held in that case that a custom among the prostitutes that if one of them contracts a marriage she forfeits all rights in her original family, was held to be opposed to public policy and immoral and consequently unenforceable, we should hold that the custom disinheriting a mother on remarriage is also opposed to public policy. It is a matter of regret that the learned counsel has thought it fit to equate the position of a mother to that of a prostitute There is no analogy between the two usages, and whereas it may be abhorrent to judicial sense that a prostitute should be penalised for giving up her profession and starting a married life, it is certainly not so in the case of a widowed mother remarrying. Moreover, as already observed, the usage in question was recognised as a valid one as long ago as in 1891 and has stood the test of time ever thereafter. We do not, therefore, find any force even in this argument of Mr. Sharma.
6. No other point having been argued before us in this case, the appeal falls and is dismissed though without any order as to costs.
Mehar Singh, C.J.
7. I agree.