Punjab-Haryana High Court
Rajmal vs Bharat Singh And Others on 24 October, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3294 of 2011
Date of decision: 24th October, 2013
Rajmal
Appellant
Versus
Bharat Singh and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. K.C. Rajput, Advocate for the appellant.
RAKESH KUMAR GARG, J. (ORAL)
This is plaintiff's second appeal challenging the judgment and decree dated 29.07.2010 of the trial Court whereby his suit for declaration that he is owner in possession of the suit land was dismissed and further judgment and decree dated 29.04.2011 of the lower appellate Court dismissing his appeal filed against the aforesaid judgment and decree of the trial Court.
Briefly stated, appellant filed a suit on the averments that defendant No.1 has been wrongly recorded as owner to the extent of 1/5th share in the revenue record with regard to the land, as detailed in para No.1 of the plaint. According to the appellant, the entire land was Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 2 owned by Sultan, father of the plaintiff-appellant and husband of defendant No.1, who had died in the years 1962-63 and thereafter the land was inherited by plaintiff-appellant and defendants No.1, 5 and 6. It is further case of the plaintiff-appellant that after the death of Sultan, defendant No.1-Shanti contracted a Karewa marriage with Desha @ Desh Raj, brother of Sultan, and gave birth to defendants No.2 to 4. After the Karewa marriage, defendant No.1-Shanti was divested from all rights in the suit land and the same had been reverted to the family of her first husband i.e. appellant as well as defendants No.5 and 6. The appellant has further pleaded customs in this regard. It is his further case that defendant No.1 Shanti suffered a decree dated 14.08.2006 in favour of defendants No.2 to 4 of the land of her share qua which she had no right. By filing the instant suit, the plaintiff- appellant has sought declaration that the aforesaid decree is null and void and the appellant is owner in possession of the suit property, and has further sought injunction against the defendants No.1 to 4 restraining them from interfering into his peaceful possession over the suit land and from alienating the same.
Defendants No.1 to 4 contested the suit by filing a joint written statement submitting that on the death of Sultan, Shanti had become absolute owner in possession of her share in the property left by her husband Sultan and she had every legal right to deal with the property in the manner she liked, and therefore, she was competent to suffer the decree dated 14.08.2006 in favour of defendants No.2 to 4, who are in actual physical possession over the suit property. However, Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 3 it was admitted that she had contracted Karewa marriage with Desh Raj after the death of Sultan.
After considering the evidence on record and hearing learned counsel for the parties, the trial Court dismissed the suit. The appeal filed by the plaintiff challenging the aforesaid judgment and decreed of the trial Court was also dismissed by the first appellate Court.
While dismissing the appeal, the lower appellate Court found that on the death of Sultan, his property devolved upon defendant No.1, being widow; and plaintiff-appellant and defendants No.5 and 6, being son and daughters respectively as per the provisions of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as, 'the 1956 Act') and she became the absolute owner over the property. The first appellate Court further found that by reason of the overriding effect of Section 4 of the 1956 Act, reliance upon Section 2 of the Hindu Widow's Remarriage Act, 1856 (hereinafter referred to as, 'the 1856 Act') cannot be made.
Challenging the aforesaid judgments and decrees of the courts below, the plaintiff-appellant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
(A) Whether the Section 2 of the Hindu Widow's Remarriage Act, 1856 was fully in force till repealed by Act No.24 of 1983 in view of the Supreme Court in case 'Velamuri Venkata Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 4 Sivaprasad (Dead) by LRs v. Kathuri Venkateswarlu (Dead) by LRs' 2000(1) RCR (Civil) 485 and 'Cherotte Sugathan (Died) through LRs & others v. Cherotte Bharathi & others' 2008 (2) RCR (Civil) 696?
(B) Whether the Section 2 of the Hindu Widow's Remarriage Act, 1856 prevailed upon the provisions of the Hindu Succession Act, 1956 till the year 1983?
(C) Whether Smt. Shanti had statutorily died on her remarriage in regard to the estate inherited by her from her deceased husband Sultan in view of Section 2 of the Hindu Widow's Remarriage Act, 1856?
(D) Whether Smt. Shanti need to be presumed to have statutorily died in view of Section 2 of the Hindu Widow's Remarriage Act, 1856 qua the estate inherited by her from the deceased father of the appellant on having performed re-marriage with Desa during the currency of the above Act before its repeal in the year 1983?
(E) Whether the repeal of the Hindu Widow's Remarriage Act, 1856 by Act No.24 of 1983 is prospective?Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 5
(F) Whether the courts below were legally competent to rely upon the contrary view of the High Courts ignoring the view of the Supreme Court on the subject in which those views of the High Courts have been considered and ignored?
(G) Whether the Hon'ble Three Judges' Bench of the Supreme Court in case 'Velamuri Venkata Sivaprasad (Dead) by LRs v.
Kathuri Venkateswarlu (Dead) by LRs' 2000(1) RCR (Civil) 485 and the Hon'ble Division Bench of the same Court in case 'Cherotte Sugathan (Died) through LRs & others v. Cherotte Bharathi & others' 2008 (2) RCR (Civil) 696 are fully applicable to the present case?
(H) Whether any presumption of existence of any custom having force of law can be raised in a case without any pleading as well as any cogent evidence and a verdict can be recorded in the present case against the appellant?
(I) Whether the findings of both the courts below are illegal, perverse, and nullity in the facts and circumstances of the present case?
Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 6 (J) Whether the judgments and decrees of both the courts below are liable to be set aside in this appeal and suit of the appellant merits decree?
Learned counsel for the appellant has vehemently argued that Section 2 of the 1856 Act was fully in force till it was repealed by Act No.24 of 1983, and thus, in view of the judgments of Hon'ble the Supreme Court rendered in Velamuri Venkata Sivaprasad's case (supra) and Cherotte Sugathan's case (supra), the impugned judgments and decrees of the courts below are liable to be set aside.
I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the Courts below. I have also gone through the judgments cited at bar.
At this stage, it may be noticed that the Hindu Widow's Remarriage Act, 1856 was enacted to remove all legal obstacles to the marriage of Hindu widows. Section 2 of the 1856 Act reads thus:
"Rights of widow in deceased husband's property to cease on her re-marriage. - All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, or Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 7 other persons entitled to the property on her death, shall thereupon succeed to the same."
However, the Hindu Succession Act, 1956 brought a sea change in the Hindu Law and by virtue of Section 14 of the 1956 Act, a Hindu widow became an absolute owner of the property by reason of inheritance from her husband. Provisions of the 1956 Act have an overriding effect. Section 4 of the 1956 Act reads thus:
"Overriding effect of Act - (1) Save as otherwise expressly provided in this Act, -
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act, shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
In view of the aforesaid overriding effect, provisions of the 1856 Act will not be applicable in the instant case. However, learned counsel for the appellant has relied upon the following paragraph of the judgment rendered by Hon'ble the Supreme Court in Velamuri Venkata Sivaprasad's case (supra):
"53. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a re-marriage, while it is true that Section speaks of a pre-deceased son or son of a Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 8 pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a male Hindu to inherit simultaneously with the son, daughter and other heirs specified in class I of the Schedule. As a matter of fact, she takes her share absolutely and not the widow's estate only in terms of Section 14. Re-marriage of a widow stands legalized by reason of the incorporation of Act of 1956 but on her re-marriage she forfeits the right to obtain any benefit from out of her deceased husband's estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant No.1."
There is no dispute with the proposition of law as canvassed by Hon'ble the Apex Court in the judgments cited at bar; however, a perusal of the aforesaid judgments would show that the facts of the said judgments are entirely different. In fact, after reaching to the conclusion that Section 4 of the 1956 Act has an overriding effect over Section 2 of the 1856 Act, Hon'ble the Supreme Court, after considering Section 24 of the 1956 Act which places restrictions on certain specified widows in the event of there being a remarriage, i.e. widow of a pre-deceased son or son of a pre-deceased son; while passing the aforesaid judgment has spoken about the aforesaid Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court RSA No.3294 of 2011 9 specified widows and has opined that the widows as specified in Section 24 of the 1956 Act will not become the absolute owner of the suit property and Section 4 of the 1956 Act will not have an overriding effect over Section 2 of the 1856 Act qua such widows. The 1956 Act in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule and she takes her share absolutely and not as widow's estate only. In the instant appeal, defendant No.1 does not fall within the purview of Section 24 of the 1956 Act. In view of the aforesaid, I find no merit in this appeal.
No other argument has been raised.
Thus, the substantial questions of law, as raised, do not arise at all in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE October 24, 2013 rps Singh Rattan Pal 2013.10.30 12:35 I attest to the accuracy and integrity of this document Punjab & Haryana High Court