J.N. Bhat, J.This is a civil second appeal against the decree passed by the District Judge, Jammu dated 5th June 65 whereby he has upheld the decree of the Sub-Registrar Munsiff Jammu dated 30-7-62.

2. Shibu appellant instituted a suit for joint possession of 1/6th share of land measuring 91 ks and 15 ms situate in villages Ranjan and Chaksingha. Tehsil Jammu. He claimed proprietory rights out of this land in the above proportion from 27 ks 9 ms and occupancy rights in the rest of the land. His case was that he was the son of Dibu whose brother and other sons were defendants in this case. According to him Dibu had five sons other than himself and he was one of his sons. The defendants denied the paternity of Dibu. On the pleadings of the parties a number of issues were framed by the trial Court. The case was first decreed by the Sub-Registrar Munsiff but on appeal it was remanded and tried afresh. After a do novo trial the suit has been dismissed by both the Courts.

3. In the original plaint (para 2) the plaintiff claimed this property both on account of custom and personal law. Later on under orders of the Court the plaintiff amended his plaint and in the amended plaint (para 2) he relied on custom and stated that under custom he was entitled to inherit the property of Dibu. I need not reproduce the facts of this case and the various matters in controversy between the parties in detail - because before me certain questions of law mostly were debated. All the issues in this case after remand were as under:

(1) Whether plaintiff 1 is the son of Mst. Kastu wife of Dibu deceased

(2) Whether under the Customary Law the plaintiff is the legitimate son of Dibu and as such is entitled to succeed

(3) Whether the plaintiff and his mother were in possession of the property of Dibu and whether they have been forcibly turned out by the defendants

(4) Whether the suit is within times

(5) Relief.

4. Both the Courts below have found that the plaintiff is not the son of Dibu but is the son of Mst. Kastu who was a keep of Dibu. On the second issue the Courts have held that the plaintiff has not been able to prove any custom whereby Shibu, being the illegitimate son of Dibu, is entitled to succeed to his property. The suit, as already remarked, has been dismissed. A new point of law was raised before the lower appellate Court. It was argued that even though the plaintiff had failed to prove himself as the son of Dibu, yet he was proved to be from Dibus loins and the womb of Mst. Kastu. It has been found that Mst. Kastu was originally married to one Chandu who had deserted her about whom nothing was heard for a number of years. The parties were further held to be Shudras. In the lower appellate Court an argument was raised that the illegitimate son of a Shudra is entitled to succeed to his property if he is from a concubine but is not the offspring of an adulterous or incestuous intercourse. It was therefore argued that though the plaintiff had failed to prove the custom alleged by him he should be allowed a share in the property of Dibu on account of this doctrine of Hindu Law. But this plea was rejected by the lower appellate Court. Here before me the learned counsel for the appellant laid very great stress on the fact that no proper issues were framed with regard to the birth and legitimacy of the plaintiff. The question of adultery also was not in issue and therefore the whole case needed a de novo trial. On the other hand the learned counsel for the respondents strenuously argued that the plaintiff had himself given up his claim under personal law. He had entirely based his claim upon custom and having failed to establish the custom his suit had been rightly dismissed. I do not think a remand is necessary as there is ample material, mostly admitted on which the case can be disposed of. I will mention the various points that were discussed by either side before me, separately.

5. The first contention of the learned counsel for the respondents is that the original plaint claimed property both under custom and personal law. Later on the plaintiff gave up his claim under personal law and confined his case to custom. Custom not having been proved, the suit has been rightly dismissed and no further argument can be allowed to be made in this second appeal. In this connection he has referred me to a few authorities which state that no new point can be raised in second appeal which has not been raised in the pleadings of the parties. See Indo-Mercantile Bank Ltd. Vs. Commissioner, Quilon Municipality, and AIR 1965 P&H 13 .

6. It is true that a party cannot be permitted to raise new points in second appeal for which there is no material on the record. In this particular case the controversy is that as the plaintiff had based his case entirely on custom and failed to prove it, he cannot now fall back on personal law. The learned counsel for the respondents has relied on Velumpi Kunji Vs. Velayudhan Gopala Panickan, and AIR 1959 J. & K. 52. The learned counsel for the appellant has referred to AIR 1946 10 (Lahore) and AIR 1961 J & K 12 (Sic).

7. In the Full Bench case of the Kerala High Court (Supra) it has no doubt been held that a party cannot be allowed to take up the contention which was consciously and willingly given up in the trial Court. In that case the question that was first raised was about the maintainability of the suit. This contention was given up and later on it was sought to be revived before the High Court. The High Court did not permit it.

8. In the case decided by this Court (Supra) the point was that the plaintiff had alleged that she was entitled to inherit the property under some custom but having failed to establish that custom, she relied on personal law. My predecessor-in-office (Nair J.) held that the case of the plaintiff cannot be considered in the absence of other persons who would be heirs to the property of the deceased under their personal law. Hence in that particular case it was held that she should not be permitted to change her stand.

9. As against this authority, there is another authority, AIR 1946 10 (Lahore) wherein their Lordships have held that it is not the duty of a party to plead law in the pleadings. All that is required of him is to state the material facts which constitute his cause of action. When such facts have been stated, the duty of giving appropriate relief according to the proved facts on the record, devolves on the Court which has to apply the correct law. In that case the party claimed relief on the ground of a special custom which not having been proved, it was held that there was nothing to preclude the Court from applying the correct law and giving appropriate relief.

10. The correct legal position in such cases would be that a party can plead a certain custom and claim a certain status under that custom. If that custom is not proved, what is to happen Some law must apply to the facts of that particular case. Custom is a deviation from the ordinary law and any party setting up this deviation from the ordinary law has to plead it and prove it. If he fails to prove the deviation the ordinary law must be applied. For instance in a given case if a party claims succession on the ground of a custom and that custom is not proved, and there is nothing in the custom to show that if that custom is not proved the party would not be entitled to any relief under any law. When the custom is not proved, some law must apply to that succession and it must be the personal law of the parties. Under the Sri Pratap Consolidation Act it is the personal law of the parties which governs succession unless a custom to the contrary is proved. If no custom is proved, the ordinary personal law will govern the case. That in such cases should be the correct interpretation. Otherwise if a custom is not proved, the property in dispute will not escheat because unless the operation of the personal law is ruled out, it must app-in any given case.

11. This view of mine finds support from a Supreme Court decision reported as Ujagar Singh Vs. Jeo, which says that where the parties to a suit base their respective claims on the basis of custom the plaintiff is entitled to fall back on personal law. In that case it was the Hindu Law.

12. Therefore in this case even if the plaintiff had omitted the word personal law from his amended plaint, he would not be debarred from any snare if he could get it under the personal law to which he was subject.

13. As already stated, the parties are admittedly Shudras. In the case of Shudras the law of succession is stated as under. The illegitimate son of a twice-born does not inherit to his putative father but the son of a Shudra inherits to the same extent as a legitimate son provided that he was born of a continuous concubine, intercourse with whom was neither incestuous nor adulterous. Where a Shudra father has sons, a legitimate and an illegitimate, the latter takes half the share of a legitimate son. (See Gour s Hindu Code Section 299 (5) page 1309). To the same effect may be referred Mullas Hindu Law page 118 Section 43.

14. Before discussing the legal aspects of this case, let us state what are the facts as have been found established in this case. It has been found by both the Courts that Kastu was the wife of one Chandu. She did not live with him, but some time after the marriage of Kastu with Chandu, Kastu lived with Dibu and after some years of living with him as a keep, she gave birth to Shibu plaintiff. Therefore it is proved that the plaintiff is the illegitimate son of Dibu born from Kastu, while she was living in continuous concubinage with him. The point that has been argued before me is whether Shibu is born of an adulterous intercourse or not. If he is the offspring of an adultery, he is not entitled to inherit. If the concubinage of Kastu with Dibu is held to be non-adulterous, he is entitled to inherit the property. This will require a decision on the point whether Kastu was living in adultery with Dibu when Shibu was born. It is not denied that when Shibu was born or even conceived, Chandu was alive. He was not heard after some time but it is nobodys case that he was dead upto that time. Even at the present moment nobody has made a categorical statement that Chandu is dead. All that Kastu has said is that Chandu enticed away some girl and went away with her and afterwards she did not hear from him for a number of years. In this connection there is another argument based on Section 108 of the Evidence Act which will be considered separately. But for the time being we have to decide the principle of Hindu Law whether Shibu was born or begotten when his mother was living an adulterous life with Dibu.

15. Mr. V. Sagar laid emphasis on the aspect that adultery should be taken to mean as defined in the Indian Penal Code. Under the definition of adultery as given in the Penal Code an intercourse with a married woman is not adultery if it has the consent or the connivance of the husband. Mr. V. Sagar therefore argued that the utmost that could be said in this case was that even though Kastu was the wife of Chandu, Chandu acquiesced in his wifes living in adultery with Dibu. In fact under the Cr. P.C. he was the only person who could bring a complaint of adultery against Dibu and his wife. He did nothing of the sort, nor did he ever object to his wife being kept and used as a keep by Dibu. Therefore Kastus living with Dibu and giving birth to Shibu would not be termed as an intercourse which was adulterous in nature. The argument is ingenious, but I do not think it a sound one.

16. The ancient Hindu Society viewed adultery as a very serious dereliction from the righteous path. Manu in Vivada Ratnakara p. 636 (Calcutta Asiatic Societys edn.) declares :

which means "If a woman is licentious, her abandonment is ordained; the woman, however, should not be killed, nor should her limbs be mutilated."

17. A strict view of adultery under the Hindu Law is given by Parasara in the following Shloka :

Translated this means:

A woman (committing adultery) is purified by catamenia, provided she did not conceive. If a woman has committed adultery once, and is not desirous to commit that sinful act again, she becomes pure by Prajapatya rite and by the flow of catamenia (X 36). If a woman becomes pregnant by her paramour when her husband is dead or is missing, she being a wicked and degraded woman should be carried to the territory of a different king and be abandoned there. (X. 20).

18. Yajnavlikya also says the same in the following Shloka:-

which means:

A woman guilty of unchastity shall be deprived of her position and possessions, shall wear dirty clothes, shall live upon starving maintenance, shall be humiliated and made to sleep on bare ground. The Moon has given the purity, the Gandarvas have given them sweet voice, the Firegody has given them permanent sanctity, woman are therefore always pure. A woman guilty of adultery is purified by Catamenia: but her abandonment is ordained in case of conception by adultery, and in case of causing abortion or killing the husband, as well as in case of committing heinous sins. 70, 72.

19. This was the strict conception of adultery under the Hindu Law. Under the ordinary definition of adultery in the Websters New International Dictionary adultery means voluntary sexual intercourse between a married man and anyone other than his wife or between a married woman and anyone other than her husband. In Strouds Judicial dictionary adultery has been held to be an offence of incontinence by married persons. In the Law Lexicon by Wharton adultery has been defined as the sin of incontinence by two married persons or it may be where only one of them is married and in such case it may be called single adultery to distinguish it from another which has some times been called double. In my opinion this is the interpretation we should put on the words adulterous intercourse as given in the Hindu Law. I am supported in my view by the following authorities :-

In Vithabai Janu Kharat Vs. Pandu Janu Kharat, a Division Bench of the Bombay High Court has said that under the Hindu Law the consent on the part of a husband to his wife living with another person is not sufficient to remove the bar of adultery and the issue of such a connection cannot be regarded as a Dasi Putra under the Hindu Law.

In (1910) ILR 33 Mad 366 it has been laid down that to entitle an illegitimate son to succeed, the connection must not be adulterous or forbidden by law.

In (1886) ILR 8 All 387 which is a Division Bench authority the ratio decided is that an Ahir who was an offspring of an adulterous intercourse was incapable of inheriting his fathers property even as a Shudra.

Similarly in Vithabai Janu Kharat Vs. Pandu Janu Kharat, it was held that a husbands connivance was not sufficient to make an illegitimate son by adulterous intercourse a Dasi Putra.

20. It is therefore clear even though we take that Chandu had connived at his wifes living in adultery with Dibu, the connivance or even his active consent would not make Shibu eligible to succeed Dibu.

21. The second point that was argued before me was that there would be a presumption of death about Chandu when he was not heard of for a number of years, which in this case means that as Kastu his wife had not heard about Chandu for a number of years, he should be presumed to be dead. This argument is based on Section 108 of the Evidence Act which reads as under :

When the question is whether a man is alive or dead and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

This section simply changes the burden of proof or lays it upon a particular party. It does not prove death; it is a presumption which is rebuttable. The authorities on this point lay-down that though Section 108 raises the presumption that the person concerned was dead on the dale of the suit, but the date of death must be proved like any other fact. This is reported in a Full Bench authority of the Lahore High Court in AIR 1931 582 (Lahore) which overruled an earlier authority of that Court in ILR 1 Lah 554: (AIR 1920 Lah 191).

22. Similarly in Kottapalli Vcnkateswarlu Vs. Kotta-palli Bapayya and Others it was laid down :

The presumption u/s 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death of any particular period. There is no presumption that death took place at the end of 7 years or at any particular time within that period. The exact time of death is not a matter of presumption, but of proof by evidence, and the onus of proving that death took place at a particular time within the period of 7 years lies on the person who claims a right for the establishment of which that fact is essential.

23. To the same effect are the observations in AIR 1953 Trav Co 114.

24. The other authorities need not be cited in this case. Firstly, the period of time from which Chandu has not been heard of is not at all clearly stated and secondly it is not even proved that he has not been heard of within 7 years of the institution of the suit. Hence there is no legal material on the record to hold that when Shibu was conceived or born Chandu was dead. If Chandu were dead on that date, the question of Kastu living in adultery with Dibu would not arise, because adultery is an offence by a man or woman whose other spouse is living. There can be no adultery by a widow or a widower. From this point of view also the appellant has not been able to prove that he does not come within the exception provided in Hindu law for illegitimate children of Shudras born as a result of adulterous intercourse. When Shibu was born is can safely be held that his mother was living in adultery with Dibu and even though the parties arc Shudras, Shibu would not be entitled to any share from the property of Dibu. It is a hard case because it is no fault of Shibu to have been born as a result of an intercourse which was not legal. But the law has to be applied. It is said that hard cases make bad law. But we have to administer the law however hard it may be.

25. The result is that Shibu gets nothing out of the property of Dibu. His appeal fails and is dismissed. Parties will bear their own costs throughout.

26. This order may be communicated to the parties by the District Judge Jammu.