Allahabad High Court
Sri Chandra Pal And Others vs Shri Govind Ram And Another on 16 January, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- SECOND APPEAL No. - 3545 of 1982 Appellant :- Sri Chandra Pal (since deceased and substituted by legal heirs) and others Respondent :- Shri Govind Ram (since deceased and substituted by legal heirs) and another Counsel for Appellant :- N.S. Chaudhary, Anshu Chaudhary Counsel for Respondent :- J.N. Singh, Anil Shukla, J.S. Baghel, K.D.Tripathi, N.K. Sharma, N.K. Shukla, N.K. Srivastava, Neeraj Agarwal Hon'ble Sudhir Agarwal, J.
1. Heard Sri D.P. Singh, learned Senior Advocate, assisted by Sri Anshu Chaudhary, Advocate, for appellants and Sri J.S. Baghel, Advocate, for respondents.
2. This is defendants' appeal under Section 100 Code of Civil Procedure arising from judgment and decree dated 07.10.1982 passed by Sri P.C. Agarwal, 4th Additional District Judge, Etah whereby appeal has been allowed and judgment and decree dated 26.02.1981 passed by Sri K.D. Srivastava, First Additional Munsif, Kasganj, Etah in Original Suit No. 93 of 1973, whereby suit was dismissed, has been set aside.
3. Govind Ram and Mitthu Lal, two brothers, and sons of Mordhwaj instituted Original Suit No. 93 of 1973 vide Plaint dated 05.04.1973 in the Court of Munsif, Kasganj impleading Smt. Moorti widow of Bhumiraj as defendant-1, and Talewar and Sri Pal, sons of Chhadami, as defendant no. 2 and 3, seeking a permanent injunction against defendants restraining them from executing any sale-deed of Arazi No. 168/1-46, 196/1-19, 102/0-09, 103/0-08, 143/0-16. Subsequently amendment was made in the Plaint seeking a declaration that sale-deed dated 26.04.1973 is forged and fictitious and does not confer any right upon Transferee.
4. Plaint case set up by plaintiffs is that defendant-1, Smt. Moorti, was married to Bhumiraj, son of Bheemsen, who died 15-16 years back, before filing of suit. Village underwent consolidation and after completion of consolidation, defendant-1, following a custom of Dharauna, started residing with one Raghubir, about 6-7 years back and is now wife of Raghubir. There are three children from Smt. Moorti and Raghubir. Disputed property was cultivatory land in the name of father of plaintiffs and father of defendant-1's husband, in respect whereto, defendant-1 was recorded as legal representative/successor in Revenue record but after consolidation operation took place, defendant-1 got separate plot numbered as Arzni No. 168/1-46 and 196/1-19. However, Arazi No. 102/0-09, 103/0-08, 143/0-16 remained in co-tenancy of plaintiffs, defendant-1 and Nanuha and Banwari son of Nekram. Defendant-1, however, ceased to have any right over disputed property after having performed Dharauna with Raghubir in view of Section 2 of Hindu Widows' Re-Marriage Act, 1856 (hereinafter referred to as "Act, 1856") and, therefore, had no right to transfer disputed property to any one.
5. After filing of plaint, alleging that a sale-deed dated 26.04.1973 was executed in respect to disputed property by defendant-1 in favour of defendants-2 and 3, plaint was amended.
6. Suit was contested by defendants filing a collective written statement in which allegations of plaint were denied and it is said that defendant-1 continued to be widow of Bhumiraj; there is no marriage or alleged Dharauna with Raghubir and entire plaint is liable to be rejected.
7. Trial Court, initially vide order dated 11.02.1976 passed by Sri Brijendra Singh, Munsif, Kasganj returned plaint on the ground of lack of jurisdiction holding that suit is bad for misjoinder of cause of action. The said judgment was challenged in Misc. Appeal No. 58 of 1976 in the Court of Civil Judge, Etah. Sri P.S. Chhabra, Civil Judge, Etah vide judgment dated 22.04.1977 did not agree with the view taken by Trial Court hence allowed appeal, set aside order dated 11.02.1976 and directed Trial Court to re-admit the suit and proceed to decide it in accordance with law.
8. Thereafter Trial Court formulated following nine issues:
^^1- D;k izfroknh la- 4 Jherh ewfrZ us j?kqchj ls nqckjk fookg fd;k\^^ "1. Whether the defendant no. 4 remarried Raghubir?"
^^2- D;k fodz; i= fnukad 26-4-1973 izfroknh izFke i{k ds gd esa fd;s x;s QthZ gS vkSj fcuk vf/kdkj ds gS\^^ "2. Whether the sale deed dated 26.04.1973 executed in favour of the first party party is forged and without any authority?"
^^3- D;k okn okndkj.kksa ds dqla;kstu ds nks"k ls xzflr gS\^^ "3. Whether the suit suffers from the misjoinder of parties?"
^^4- D;k okn dk ewY;kadu U;wu gS\^^
"4. Whether the suit is undervalued?"
^^5- D;k nRr U;k;'kqYd vi;kZIr gS\^^
"5. Whether the court fee paid is insufficient?"
^^6- D;k U;k;ky; dks Jo.kkf/kdkj ugha izkIr gS\^^
"6. Whether the Court has no jurisdiction to hear the suit?"
^^7- D;k okn /kkjk 34 fof'k"V vuqrks"k vf/k0 ls ckf/kr gS\^^
"7. Whether the suit is barred by section 34 of the Specific Relief Act?"
^^8- oknh fdl vuqrks"k ds vf/kd`r gS\^^
"8. What relief the plaintiff is entitled to?"
^^9- D;k izfroknhx.k /kkjk 41 lEifRr gLrkarj.k vf/kfu;e ds ykHk ds vf/kd`r gS\**
"9. Whether the defendants are entitled to the benefit of section 41 of the Transfer of Property Act?" (English Translation by Court)
9. Issues-4 and 5 were decided as preliminary issues vide judgment dated 28.01.1976 which was adopted and followed by Trial Court in its judgment dated 26.02.1981, and answered in negative. Similarly, Issues-3 and 6 were decided by Lower Appeal Court (hereinafter referred to as "LAC") vide judgment dated 22.04.1977 in negative and same were also made part of judgment dated 26.02.1981 by Trial Court. It then proceeded to decide Issue-1 and held that plaintiffs failed to prove marriage or solemnization of Dharauna of Smt. Moorti with Raghubir and also could not adduce any evidence to show that there was any such recognized custom in their Society, hence, answered Issue-1 in negative and against plaintiffs. Consequently, Issue-2 was answered in favour of defendants, i.e., in negative and against plaintiffs. Issue-7 was not pressed hence answered in negative. Issue-9 was answered holding that defendants-2 and 3 are bona fide purchasers of disputed land. Consequently, suit was dismissed vide judgment and decree dated 26.02.1981.
10. Thereagainst Civil Appeal No. 101 of 1981 was filed. Only one point for determination was considered by LAC and that is regarding alleged remarriage of Smt. Moorti with Raghubir. Relying basically on the fact that Smt. Moorti was residing with Raghubir for the last several years, LAC recorded its opinion in favour of plaintiffs that re-marriage of Smt. Moorti with Raghubir is proved and in that view of matter, held that she lost any right in the disputed property, hence could not have executed sale-deed in question.
11. This appeal was admitted on the following four substantial questions of law:
"(I) Whether the plaintiffs have proved the ceremonies of re-marriage or Dharauna of Smt. Moorti with Raghubir or not? (II) Whether there is even an iota of evidence of re-marriage of Dharauna of Smt. Moorti with Reghubir or not? (III) Whether the evidence of plaintiff that Smt. Moorti and Raghubir are living together is sufficient to infer that Smt. Moorit has remarried or not? (IV) Whether the Lower Appellate Court was justified in presuming the custom of Dharauna in the family of plaintiffs?" (emphasis added)
12. Learned counsel for appellant contended that in order to prove remarriage of defendant-appellant-6, Smt. Moorti, with Raghubir, it was incumbent upon plaintiffs to prove, (1) recognized custom of Dharauna in the Society to which parties belong; and (2) Factum of Dharauna performed/observed by Smt. Moorti Devi with Raghubir. He placed reliance on Section 2 of Act, 1856 to contend that it is only when the factum of remarriage is proved, question of Smt. Moorti loosing any right over disputed property would have arisen and not otherwise. He submitted that LAC has proceeded on the assumption that since parties are Dheemar by caste, therefore custom of remarriage prevail in this community and it cannot be ruled out that they had married. It is also argued that LAC though admits that Smt. Moorti had denied that there is any custom of remarriage in their caste of Darauna, but simply disbelieved it without any valid reason and ignoring the fact that existence of such a custom was onus of plaintiffs to prove their case and not a negative onus lies upon defendant, Smt. Moorti.
13. Learned counsel for plaintiffs attempted to support the judgment of LAC by reading the same and for the reasons given therein.
14. The family tree, as given in para-1 of plaint, is as under:
Heera ____________________I______________________ I I Mordhawaj Bheemsen ________I____________ I I I Bhumiraj Govindram Mitthulal I Smt. Moorti (widow of Bhumiraj)
15. The fact that Smt. Moorti was married to plaintiffs' cousin (son of uncle Bheemsen) Bhumiraj and after his death was widow having right over property is admitted but it is further pleaded that she entered into a customary marriage, i.e., Dharauna with a Family member Raghubir, hence ceased to have any right over ancestral property. Thus case of remarriage of Smt. Moorti was set up by plaintiffs. No document in this regard was adduced in evidence. Oral evidence comprised of statements of Govind Ram, PW-1, Jai Singh, PW-2, Parshadi Lal, PW-3, which is in support of plaint case and defence oral evidence comprised of statements of Smt. Moorti Devi as DW-1, Banwari Lal, DW-2 and Kituka as DW-3.
16. PW-1, Govind Ram, admitted that upto consolidation proceedings commenced, entire land was joint but after consolidation separate khatas were prepared. However, land which was outside consolidation, that has continued in joint tenancy. He further stated that Smt. Moorti has entered into custom of Dharauna with Raghubir, resident of Badaun, about 16 years back. He also said that Smt. Moorti after Dharauna with Raghubir has not been residing in Village and disputed property is in the possession of plaintiffs. There was no issue from Bhumiraj to Smt. Moorti but after Dharauna with Raghubir she begot three children out of which only one daughter is alive. Rest two have died. In cross examination, PW-1, Govind Ram, admitted that in revenue record, name of Smt. Moorti is continuing. He also said that Bhumiraj died about 20 to 22 years back and at that time, Moorti was aged about 40-42 years in 1967-69. PW-1 came to know about Dharauna by the time when consolidation was already over.
17. PW-2 Jai Singh claimed that Smt. Moorti is his Bua. He also said that Smt. Moorti is residing with Raghubir after Dharauna which took place about 15 to 16 years back. He claimed that he was present at the time of Dharauna. However, in cross examination he admitted that he is not aware of others who were present at that time and also said that except the present one, no other Dharauna has ever been entered in Dheemars. Relevant extract reads as under:
^^dsoy ?kj dh 'kkfn;ksa ds ckjs esa ;kn gSA blds vykok dksbZ vU; /kjkSuk /khejksa esa ugha gqvkA^^ "Recollect only about marriages of family members. Except this no Dharauna took place amongst Dheemars." (English Translation by Court)
18. Then he also admitted that he has only one real Bua and her name is Mahadevi.
19. PW-3 was also produced to state that Smt. Moorti had Dharauna with Raghubir 15-16 years back and since then she is not residing in village but in the cross examination, he admitted that factum about Dharauna was told to him by Dal Chand etc. Relevant extract of statement of PW-3 reads as under:
^^eq>s /kjkSuk dh ckr Mky pUn oxSjg jktx<+ okyksa us crkbZA^^ "Information regarding Dharauna was given to me by Dal Chand and others of Rajgadh." (English Translation by Court)
20. It means that PW-3 had no knowledge of Dharauna and alleged statement is hearse. He also said that Dal Chand had no connection with Smt. Moorti. He was told about Dharauna of Moorti about 10-11 years back.
21. Moorti categorically in her statement said that neither she is residing with Reghubir nor she knows him. She had no issue from Raghubir. Plaintiffs entered into litigation with Smt. Moorti during consolidation proceedings also in which she succeeded. She is in possession of entire property including one in respect whereof sale deed was executed and thereafter possession of land sold was given to purchasers. She specifically said that there is no custom of Dharauna in her caste. The relevant extract of statement of Moorti reads as under:
^^gekjh fcjknjh esa /kjkSus ugha gksrsA vkt rd esjh tkudkjh esa dksbZ /kjkSuk gekjs fcjknjh esa ugh gqvkA^^ "No Dharauna takes place in my our caste. To my knowledge, no Dharauna in our caste ever took place till date." (English Translation by Court)
22. It is, thus, evident from the evidence that plaintiffs never pleaded that Smt. Moorti solemnized marriage in accordance with Hindu Customs recognized under Hindu Marriage Act, 1955 (hereinafter referred to as "Act, 1955"). The entire plaint of plaintiffs was founded on the alleged Dharauna. PW-1 nowhere claimed that Dharauna was a recognized custom in their caste/Biradari. DW-1 specifically denied it and said that no such custom is recognized in her caste.
23. A custom can be a law and it is also recognized in Article 13(1)(a) of Constitution, which reads as under:
"13. Laws inconsistent with or in derogation of the fundamental rights.- ... (3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;"
(emphasis added)
24. In the recognized sources of Hindu Law, there are three main sources, (1) Shruti, (2) Smriti; and, (3) Custom.
25. The term "custom" and "usage" has been defined in Section 3(a) of Act, 1955 as under:
"(a) the expressions custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:"
26. It is generally said that custom must be ancient, certain and reasonable. The term "ancient" has not been used in Section 3(a) of Act, 1955 but it says that it must be observed for a long time. In English law, it was said that a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary, but that has not been followed in Indian conditions. Here all that is necessary to prove is that the custom or usage has been acted upon in practice for such a long time and with such invariability and continuity as to show that it has by common consent been submitted to as the established governing rule in any local area, tribe, community, group or family.
27. Some more or less, similar definition of ''custom' has been given in Section 3(d) of Hindu Succession Act, 1956 (hereinafter referred to as "HS Act, 1956") and Section 3(a) of Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as "HAM Act, 1956").
28. Broadly there are three types of customs recognized in Hindu law, (1) local; (2) class/community; and (3) family customs. It is incumbent upon a party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy.
29. It must be established inductively and not by a priori methods. Custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A custom cannot be enlarged by parity of reasoning, since it is the usage that makes the law and not the reason of the thing.
30. A family custom has also to be alleged and proved in the same manner as other customs and some principles are applicable though frequency of custom in a family custom may not be so frequent as may be available in the case of local custom or class/community custom. In dealing with family customs, the consensus of opinion among members of the family, the traditional belief entertained by them and acted upon by them, their statements and their conduct would all be relevant and it is only where the relevant evidence of such a character appears to the courts to be sufficient that a specific family custom pleaded in a particular case can be held to be proved.
31. In Shiromani and others Vs. Hem Kumar and others AIR 1968 SC 1299, Court said:
"It is well-established that a custom must be proved to be ancient, certain and reasonable if it is to be recognised and acted upon by Courts of law; and being in derogation of the general rules of law the custom must be construed strictly.
32. In Hurpurshad and others Vs. Sheo Dyal and others (1876) L.R. 3 I.A. 259, Privy Council observed:
"A custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain, and reasonable, and being in derogation of the general rules of law, must be construed strictly. "
33. In Ahmad Khan v. Channi Bibi 52 I.A. 379, Court said that the custom could properly be proved by general evidence given by members of the family or tribe without proof of special instances.
34. In Musammat Subhani Vs. Nawab 68 I.A. 1, Privy Council observed:
" ... what must be proved is that the usage has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent been submitted to as the established governing rule of the particular district, with the modification that the word 'family' should be substituted for the word 'district' holds good in every case. They also laid down that the initial onus lay on the plaintiffs to prove the special custom ...."
35. In Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others (1975) 1 SCC 212, relying on earlier decisions Court observed that essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; should be established to be so by clear and unambiguous evidence and 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.
36. What is applicable to usages has also been made applicable to family custom and in Harihar Prasad Singh and others Vs. Balmiki Prasad Singh and others (supra), Court observed that in dealing with a family custom, the same principle will have to be applied, though, of course, in the case of a family custom, instances in support of the custom may not be as many or as frequent as in the case of customs pertaining to a territory or to the community or to the character of any estate. In dealing with family customs, the consensus of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them their statements, and their conduct would all be relevant and it is only where the relevant evidence of such a character appears to the Court to be sufficient that a specific family custom pleaded in a particular case would be held to be proved.
37. In the light of aforesaid, it cannot be doubted that existence of a custom has to be pleaded and thereafter proved with appropriate evidence which is not the case in hand at all. The word "Dharauna" has been used but in what manner, it is treated to be a custom of marriage etc., neither has been pleaded nor adequate evidence has come on record.
38. Now coming to the application of Section-2 of Act, 1856, I find that here remarriage of a widow is a condition precedent to attract the aforesaid provision. In no other manner, a widow can be denied her otherwise right to the property of her deceased husband. The factum of remarriage, therefore, as a matter of fact has to be proved and it cannot be assumed at all.
39. In respect to Section-2 of Act, 1856 there are some other aspects also which have been considered in various cases, such as, if custom itself permits remarriage and retention of property of deceased husband, then Section-2 will not deprive such right of widow, but it is not necessary for the present case to go into that aspect of the matter for the reason that here, very factum of remarriage itself, has not been proved at all and, therefore, Smt. Moorti did not forfeit right on property of her deceased husband. Hence sale-deed executed by her in favour of appellants cannot be said to be bad.
40. I am really surprised to see that learned LAC, in fact, has decided the matter on such a serious issue, on presumption, that parties belong to Dheemar community and custom of remarriage by Dharauna may exist thereat though no such evidence to prove this fact was adduced by plaintiffs.
41. In Hurpurshad and others Vs. Sheo Dyal and others (supra), a serious caution for a Judge was observed by Privy Council stating that a Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts. If the means of knowledge of the Judicial Commissioner of the facts spoken to by him in his judgment, as depending upon his own knowledge, were capable of being tested, it would probably turn out that it depended upon mere rumour or hearsay, and that his evidence as to those facts would not have been admissible if he had been examined as a witness.
42. Finding of LAC on this issue of remarriage based wholly on conjectures and surmises.
43. All the aforesaid substantial questions of law, therefore, are answered in favour of appellants.
44. Appeal is accordingly allowed. Impugned judgment and decree dated 07.10.1982 passed by 4th Additional District Judge, District Etah in Civil Appeal No. 101 of 1981 is hereby set aside and judgment and decree dated 26.02.1981 passed Trial Court in Original Suit No. 93 of 1973 is confirmed and suit of Plaintiffs-respondents, in the result, stands dismissed.
Dt. 16.01.2019 PS