Punjab-Haryana High Court
Smt. Bhago vs Satbir on 30 May, 2007
Equivalent citations: AIR2007P&H161, (2008)149PLR123, AIR 2007 PUNJAB AND HARYANA 161, 2007 (5) ALL LJ NOC 902, 2007 (6) ABR (NOC) 1021 (P&H), 2007 AIHC NOC 573, (2008) 1 PUN LR 123
ORDER R.S. Madan, J.
1. This Regular Second Appeal No. 1789 of 1981 has been directed against the judgment and decree dated 23-5-1981 passed by the learned District Judge, Rohtak vide which he affirmed the judgment and decree of the trial Court dismissing the suit of the plaintiff.
2. Following pedigree table of the parties would be relevant for the purpose of disposing of the present appeal:
The relevant pedigree table of the parties of village Agarpur (Ex. PW-5/9) is as follows:
Sarju | ________________________________________________________________ | | | | Shadi(2) Bujan Daulat Ram Hans Raj | died issueless died issueless bdied issueless & | and unmarried and unmarried unmarried | ___________________________________________ | | Mam Chand Dhan Kaur | ____________________________________________ | | Shimbhu (adopted son) Badlu widow Bhago (plaintiff) died 1971 widow Ram Dal 2A. The other relevant pedigree table of the parties (Ex.PW-5/10) of village Brahi is as follows:
Nathwa | ___________________________________________________________________ | | | | Ram Dutt Puran Jumna Jage Ram | died issueless died issueless | | (1904) widow Dhan | Shambhu Kaur died 1947 | __________________________| | | Shilak Ram Jeet Ram died issueless
3. In brief, facts of the case are that Mam Chand and his uncle Daulat Ram resident of village Chhara Tehsil Jhajjar District Rohtak were co-sharer of the agricultural land situated in village Agarpur. They gifted 14 share in the agricultural land to Puran son of Nathwa who was the brother-in-law of Mam Chand. The mutation in this regard was sanctioned on 22-1-1902. Puran died in 1904 and the land which stood in his name by way of gift was inherited by Smt. Dhan Kaur who was widow of Puran and sister of Mam Chand. Mutation No. 333 dated 29 9-1904 was sanctioned in her favour. Daulat Ram also died and mutation in respect of the land in his name was also sanctioned on 29-9-1904. Mam Chand thus became the owner in possession of 3/4 share and Dhan Kaur became the owner of the land to the extent of share.
4. Mam Chand had a son Badlu who married with Ram Dai died in the year 1917 without leaving any child. After the death of Badlu, Mam Chand adopted Shimbhu son of Ram Dutt who was the son of elder brother of Puran, husband of Dhan Kaur. Mam Chand made a gift of his agricultural land in favour of Shimbhu and mutation No. 340 dated 31-8-1919 was sanctioned in favour of Shimbhu. Mam Chand again made a will on 13-12-1924 in favour of Shimbhu his adopted son. Smt. Ram Dai widow of Badlu contracted a karewa marriage with Mool Chand son of Shiv Dayal. She also filed a complaint Under Section 107, 151, Cr. P.C. against Mam Chand on 5-3-1925 wherein a compromise was effected between Ram Dai and Mam Chand by which she relinquished all her rights in the property of her husband and the property of her father-in-law and she left the house of Mam Chand and began to live in the house of Mool Chand. Shimbhu, adopted son of Mam Chand also died in the year 1930 leaving behind Smt. Bhago the present plaintiff and one daughter Smt. Mahadevi. After the death of Shimbhu, Mam Chand made a gift of his agricultural land in favour of Smt. Bhago on 17-4-1935. Mam Chand died in the year 1936 and at that time the plaintiff was his only heir.
5. Smt. Dhan Kaur, sister of Mam Chand and widow of Puran died in the year 1947. Alter the death of Dhan Kaur, the land gifted to Puran in the year 1902, reverted to the donor Mam Chand. As the plaintiff was the only heir of Mam Chand, the lend should have been mutated in her favour, But Smt. Ram Dai got a mutation sanctioned in her favour on 16-6-1947 in collusion with the Revenue Officials. This mutation is illegal, void and sanctioned in favour of Smt. Ram Dai without any right and is not binding on the plaintiff. The plaintiff being an old lady having no male member to help her, could not know about the sanctioning of the mutation in favour of Smt. Ram Dai. After the consolidation of holdings took place the land fully detailed in para No. 15 of the plaint has fallen to the share of Smt. Ram Dai.
6. Ram Dai who had performed karewa marriage with Mool Chand forfeited all her rights in the property of Mam Chand. Plaintiff being the wife of Shimbhu, adopted son of Mam Chand, was the only person entitled to inherit the property left by Mam Chand. She not only succeeded in getting mutation sanctioned in her favour, but she also executed a will in favour of the defendant on 17-3-1954- Ram Dai died on 17-10-1972 and at that time of her death, she was not the owner of the land in dispute. She was not competent to give away this land to the defendant through any will.
7. On the basis of the aforesaid averments, plaintiff Bhago filed the suit for the possession of the land on 21-3-1973 which was withdrawn on 18-9-1973 with permission to bring a fresh suit which was allowed to be brought on the same cause of action subject to payment of Rs. 50/- as costs. This is how the present suit filed by Smt. Bhago widow of Shimbhu on 7-2-1974.
8. The defendant contested the suit by filing written statement inter alia pleaded that Ram Dai was widow of Badlu son of Mam Chand. The defendant denied that Mam Chand had ever adopted Shimbhu as his son or gifted the land or made any will in favour of Shimbhu. It was averred that even if it is proved that Ram Dai contracted a karewa marriage with Mool Chand, she would not lose the right in the property of her father-in-law. It was also denied that she had left the house of her father-in-law. The defendant also denied that Ram Dai had ever relinquished her right in the property in favour of Mam Chand. It was also pleaded that mutation has been rightly sanctioned in favour of Ram Dai and the will executed in favour of the defendant is a validly executed will by Ram Dai and the same could not be challenged by the plaintiff. It was pleaded that the parties are governed by custom in the matters of adoption, alienation and marriage. It was pleaded that the suit of the plaintiff is time-barred as Ram Dai having been in possession of the suit property for long and thus became the owner of the same at the time of her death by way of adverse possession. It was averred that with the coming into force of the Hindu Sue cession Act, Ram Dai became the full owner of the land in dispute.
9. On the pleadings of the parties, the following issues were framed:
1. Whether Mam Chand was owner in possession of % snare and Mst. Dhan Kaur was owner in possession of share in the suit land as alleged? OPP.
2. Whether Mam Chand adopted Shimbhu on the death of his son Badlu as alleged? OPP.
3. Whether Mam Chand made a gift of his land in favour of Shimbhu as alleged? OPP.
4. Whether Mst. Ram Dai was widow of Badlu and she contracted a karewa marriage with Mool Chand as alleged? OPP.
5. Whether a compromise was entered between Mst. Ram Dai and Mam Chand by virtue of which she relinquished all her rights in the property of Badlu and Mam Chand as alleged? OPP.
6. Whether said Shimbhu died leaving behind the plaintiff as widow and Mst. Maha Devi, daughter, as his heirs? OPP.
7. Whether Mam Chand made a gift on 17-4-1935 in favour of the plaintiff as alleged? OPP.
8. Whether Mst. Dhan Kaur was succeeded by Ram Dai and a mutation No. 948 of 16-6-1947, as mutation of inheritance, was sanctioned as alleged? OPP.
9. Whether the mutation mentioned in previous issue was illegal, void and is not binding on the plaintiff? OPP.
10. Whether any valid will was executed by Mst. Ram Dai in favour of Satbir defendant? OPD.
11. Whether Ram Dai was governed by agricultural custom in matter of adoption and alienation, marriage etc. and if so what that custom is ? OPD.
12. Whether the suit is not within limitation? OPD.
13. Whether Mst. Ram Dai had become owner of the suit land by adverse possession as alleged? OPD.
14. Whether Mst. Ram Dai become full owner of the suit land by virtue of Hindu Succession Act and its effect? OPD.
15. Relief.
10. The learned trial Court returned the findings of issue Nos. 1, 3, 4, 5, 6, 7, 8, 9 in favour of the plaintiff and issue Nos. 2, 10, 11,12, 13, 14 were decided in favour of the defendant, as a cumulative effect of the findings the suit of the plaintiff was dismissed With costs.
11; Aggrieved by the impugned order of dismissal of the suit the plaintiff filed the Civil Appeal No. 106 of 1978 before the District Judge, Rohtak, who vide his order dated 23-5-1981, dismissed the appeal filed by the plaintiff after recording the concurrent findings on all the issues.
12. Aggrieved by the judgment of the First Appellate Court, the plaintiff has again knocked the door of this Court by way of filing the present Regular Second Appeal.
13. The substantial question of law raised in this appeal is:
Whether Ms. Ram Dai forfeited her right in the estate of Badlu and Mam Chand?
The Customary Law of District Rohtak written by E. Joseph, ICS, Settlement Officer while answering to question No. 55 as to what is the effect of unchastity upon the right of a widow in respect of the estate of her deceased husband, is reproduced as under:
Brahmans and Hindu and Muhammadan Rajputs throughout, on the other hand, say that proved unchastity forfeits her interest.
14. On the basis this substantial question of law this Court framed an additional issue on 11-2-2604 which lis given as under:
Whether an unchaste Brahman widow of Rohtak/Jhajjar was divested of her rights in her husband's estates under the customary law as applicable to the District of Rohtak.
15. After framing of the additional issue the matter as remitted to Civil Judge, Senior Division, Bahadurgarh, for recording the evidence after giving opportunity to both sides to adduce whatever evidence they want to lead. It was, however, clarified that nothing observed by the Court below on issue No. 11 shall come in the way of parties in adducing their evidence on the additional issue. The Additional Civil Judge, Senior Division, Bahadurgarh was directed to submit his report within two months. The learned Additional Civil Judge, Senior Division, submitted his report dated 5-5-2004 to this Court. The concluding para of the report is reproduced as under:
In view of above discussion, from the evidence adduced by plaintiff, it stands proved that as per the Customary law prevalent in Rohtak District an unchaste Brahman widow on proved unchastity forfeits her right/interest in her husband's estate and as the defendants failed to rebut the evidence adduced by plaintiff in this regard, this issue is answered in favour of plaintiff and against the defendant.
16. Thereafter, objections were invited on the aforesaid report. The reply to the objection was filed which is hardly of any significance for the reasons that the report submitted by the Additional Civil Judge. Senior Division was not in consonance with the additional issue framed by this Court. She referred to document Ex. PX/1 and copies of mutation Ex. PX/2 to Ex. PX/4. Ex.PX/1 is the copy of Riwaz-i-am defining rights of an unchaste Brahman widow in her husband's estate in Rohtak District and it clearly states that the proved unchastity of such a widow forfeits her interest in her husband's property. In this regards, learned Counsel for the plaintiff also referred to an answer to question No. 55 at page No. 75 of Customary Law of Rohtak District written by E. Joseph I.C.S. Ex. PX/2 copy of mutation No. 983, Ex. PX/3 copy of mutation No. 953 and Ex. PX/4 copy of mutation No. 3006 reflected that the widows having performed karewa marriage after the death of their husbands lose their rights in the property of their late husbands. These copies of mutations relate to the custom which is prevalent among the Jats but no copy of mutation has been placed on the record to suggest that a Brahman widow on performing a karewa or leading an unchaste life is divested of rights of inheritance in the estate of her late husband under the customary law. No ocular version to prove the custom with instances have been led to prove the question No. 55 mentioned above followed among the Brahmans uninterruptedly till date. Hence the report furnished by the Additional Civil Judge, Senior Division, Bahadurgarh is hardly of any significance to either party. In spite of the fact that both the parties availed opportunity to present their case before the Additional Civil Judge, Senior Division, Bahadurgarh, no evidence was brought on the record to prove that there is a custom (Riwaj-i-am) prevalent in District Rohtak where an unchaste Brahman widow loses her rights to inherit the estate of her late husband. Therefore, the concluding para of the report submitted by Additional Civil Judge, Senior Division, Bahadurgarh was not in accordance with the evidence produced by the parties on the record.
17. Learned Counsel for the appellant Sh. R.S. Mittal contended that it is an admitted fact between the parties that Ram Dai had started living at the house of Mool Chand against the wishes of Mam Chand and Puran. The criminal proceedings in this regard were initiated by Ram Dai on 5-3-1925 wherein a compromise Ex. P/1 was effected between the parties in which Ram Dai relinquished all her rights in the property of her husband and in the property of her father-in-law. Learned subordinate Judge as well as the First Appellate Court while disposing of the findings on issue No. 4 were of the view that the plaintiff has failed to prove on the record that Smt. Ram Dai contracted a karewa marriage with Mool Chand but there are indications that Smt. Ram Dai became unchaste as she had started residing in the house of Mool Chand and there were ill feelings between Mam Chand and Ram Dai which resulted in a compromise Ex. P/1.
18. Describing the unchastity of Ram Dai learned trial Court in para No. 15 of the judgment observed as under:
The unchastity and karewa marriage stand on totally different footing so far as forfeiture of right in the property according to customary law is concerned. Unchastity of a widow would not result in forfeiture of widow's estate. I am supported in this view by the decision of our Hon'ble High Court which have been published in 1969 PLR page No. 1090 in the case Ghure v. Smt. Romali. A similar distinction was also made between re-marriage and unchastity in 1959 PLR Page No. 106 in Smt. Kesro v. Smt. Parbati. It was held in the authority that the forfeiture by remarriage and forfeiture by unchastity stand on two different footings. It was further held that in one case the woman ceases to be the widow of her deceased husband and becomes a member of another family but in the other case, she still remains the widow of her husband. In view of the authorities cited by the learned Counsel for the defendant I find that unless there is a special custom, a widow does not forfeit her right to the. property if she be-comes unchaste.
19. It is not the custom prevalent among the Brahmans that a Brahman widow Would contract a karewa marriage. At the same time the customary law written by E. Joseph, ICS, Settlement Officer mentioned above while answering to question No. 55 has made it clear that an unchaste Brahman widow loses right in the estate of her deceased husband.
20. According to the learned Counsel there is a presumption of correctness attached to Riwaj-i-am unless it is proved otherwise. Thus according to the learned Counsel in view of the customary law prevalent among the Brahmans of District Rphtak,an unchaste Brahman widow cannot inherit the estate of her deceased husband.
21. On the other hand, learned Counsel for the respondent contended that in view of the concurrent findings recorded by the Courts below on all the issues, this Court cannot interpret finding as a third Court of appreciation of facts. Reference was made to Gurdev Kaur v. Kaki's case wherein the Apex Court while interpreting the amendment brought in Section 100 of Civil Procedure Code observed that legislature never wanted a second appeal to become a "third trial on facts" or "one more dice in the gamble".
22. The relations inter se parties are however not disputed. Learned Counsel contended that a presumption of Riwaj-i-am is a rebuttable presumption if it is shown that it adversely affects the rights of a female or any other class who has opportunity to appear before the Court. Keeping in view this principle laid down in Gokal Chand v. Parvin Kumari AIR 1952 SC 231:
The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and Investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Compiler's remarks is that if they represent his personal opinion or bias and detract from the record of long-standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom express themselves in regard to it, remarks should be given due weight.
23. As far as Riwaj-i-am is concerned, no precedent has been cited by the plaintiff. No instance of unchaste Brahman widow having forfeited her rights in the property of her late husband has been brought on the record by way of evidence. Therefore, Riwaj-i-am described by E. Joseph', ICS, Settlement Officer pertaining to question No. 55 stand exactly on the same footing as in Hardayal v. Mst. Dakhan and Arma Ram v. Mst. Chameli . Riwaj-i-am cannot be said to carry any evidentiary value all by itself, unless it is proved by leading cogent and convincing evidence that the said custom is being followed uninterruptedly by the Brah-mans of District Rohtak. The existence of such custom if not sought to be established from any other evidence must be negatived. The report submitted by the Additional Civil Judge, Sr. Division, Bahadurgarh carries nowhere as the same is not based on documentary proof so as to establish that a Brahman widow in Rohtak District leading an unchaste life loses her right of inheritance in the estate of her deceased husband. Therefore, no value can be attached to the report as well as to the question and answer No. 5 of the book written by E. Joseph, Settlement Officer.
24. After hearing the learned Counsel for the parties, I am of the view that it was for the first time in the Regular Second Appeal that the question of Riwaj-i-am was raised by the learned Counsel for the appellant in the form of question No. 55 and the answer given in the book Customary Law of Rohtak District written by E. Joseph wherein it is observed that in Brahmans and Hindus the widows leading an unchaste life loses interest in the estate of their deceased husbands. Admittedly, both the parties were given the opportunity to prove this custom. No meaningful evidence was led by either party before the Court of Additional Civil Judge, Senior Division, Bahadurgarh on the additional issue framed by this Court.
25. In the absence of any evidence brought on the file it cannot be said that the opinion expressed by the Complier of Riwaj i-am or Settlement Officer is of any help to the present appellant. Therefore, the substantial question of law raised in this appeal remains unproved by the plaintiff/ appellant.
26. Another substantial question of law framed by this Court is that:
Whether there is no limitation for a suit for possession by an owner on the basis of title and inheritance.
27. Learned Counsel for the appellant has assailed finding of issue No. 12 and submitted that where question of title is involved. Article 65 of the Limitation Act does not provide any limitation.
28. Thus, Smt. Bhago could file the suit at any time as her case would be governed by Article 65 of the Limitation Act, therefore, the suit of the plaintiff cannot be held to be time-barred. The finding on this issue be made in favour of the plaintiff holding that the suit of the plaintiffs not time-barred.
29. In support of his arguments learned Counsel made reference to Mohd. Mohammad Ali v. Jagdish Kalita wherein the Apex Court held that in a suit for declaration of title to the property, plaintiff has only to prove his title and not his possession Defendant raising plea of adverse possession must prove the same along with his animus possidendi. So far as proposition laid down in the aforesaid authority is concerned it is not disputed, but at the same time in view of the fact that the plaintiff/appellant has failed to prove on the record her title over the suit property as Ram Dai's title in the suit land remains undisputed for the reason already mentioned above.
30. Therefore, the observation of the trial Court that Smt. Bhago has challenged the inheritance of Dhan Kaur which took place in the year 1947 and the present suit filed in the year 1974 has rightly been held to be time barred.
31. At the end. learned Counsel for the appellant contended that possession of Ram Devi over the suit land was that of a trespasser because she could not inherit the property of her late husband because of leading an unchaste life. Her rights of trespasser cannot be enlarged under Section 14(1) of Hindu Succession Act, 1956. Therefore, she could not will away the property to the defendants.
32. I do not find any force in the contention of the learned Counsel for the appellant for the reasons that the plaintiff/appellant has failed to prove with any instance or precedent on the record the custom that a Brahman widow leading an unchaste life cannot inherit the estate other deceased husband. Ram Dai had become the full owner of the property after coming into force of the Hindu Succession Act, 1956 thus she had a right to will away her property in favour of the defendants.
33. No other point was urged and argued before me.
34. As a sequel to my aforesaid discussion, I find no merit in this Regular Second Appeal and the same is dismissed with no order as to cost.