Punjab-Haryana High Court
Smt. Sheona vs Smt. Maro And Others on 9 January, 2014
R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Date of Decision: 09.01.2014
R.S.A. No.63 of 1992
Smt. Sheona ....Appellant
Versus
Smt. Maro and others ....Respondents
AND
R.S.A. No.253 of 1992
Dalip and others ....Appellants
Versus
Sheona and others ....Respondents
CORAM: HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Amit Kumar Jain, Advocate,
for the appellant in RSA No. 63 of 1992
and for respondent No.1 in RSA No. 253 of 1992.
Mr. P.S. Jammu, Advocate,
for the respondents in RSA No. 63 of 1992
and for appellants in RSA No. 253 of 1992.
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1. Whether Reporters of local papers may be allowed to see the judgment?
Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MAHAVIR S. CHAUHAN, J.
This judgment being passed in Regular Second Appeal No. 63 of 1992, shall dispose of, besides Regular Second Appeal No. 63 of 1992, Regular Second Appeal No. 253 of 1992 also, as both these appeals are directed against common judgment and decree dated 30.09.1987 and involve common questions Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -2- of fact and law.
Pleadings:
Khema had three sons named Khubi, Nandu and Harjas. Khubi had a son named Jhunda, father of Jug Lal. Nandu had one son named Ami Lal, predecessor-in-interest of defendants No. 2 to 13, while Harjas had a son named Sheo Chand, defendant No. 1. Plaintiff, Sheona, claiming herself to be daughter of Jug Lal and Maro, brought Civil Suit No. 286 of 22.02.1983 for declaration to the effect that she was owner of (i) agricultural land measuring 58 kanals 10 marlas out of land measuring 82 kanals 18 marlas comprised in khewat No. 200 khatauni No. 362 and land measuring 87 kanals 09 marlas comprised in khewat No. 201, khatauni No. 363, per Jamabandi for the year 1980-81 (Exhibit P2), situated in the revenue estate of village Dalamwala, Tehsil and District Jind; (ii) one third share in agricultural land measuring 48 kanals 09 marlas comprised in khewat No. 26, khatauni No. 36, as per jamabandi for the year 1977-78 (Exhibit P8), situated in revenue estate of village Khunga; and (iii) one third share in land measuring 49 kanals 15 marlas comprised in khewat No. 131, khatauni No. 146, as per Jamabandi for the year 1981-82 (Exhibit P9) situated in revenue estate of village Shri Rag Khera, Tehsil and District Jind, and for possession thereof, by alleging that after death of her father, Jug Lal, her mother, Maro, had contracted karewa marriage with Giani son of defendant Sheo Chand but the defendants, by concealing the factum of her birth from the marital union of Jug Lal and Maro, got mutation No. 110 dated 04.06.1956 (Exhibit P1), in respect of the land in dispute, Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -3- sanctioned in their favour but continued paying batai to her till four months before institution of the suit.
Defendants No. 2 to 10 and 12 contested plaintiff's claim that she was daughter of Jug Lal and Maro, admitted their relationship with Jug Lal, and pleaded preliminary objections to say that the suit was not maintainable, it was bad for mis-joinder and non-joinder of necessary parties and improper valuation for the purposes of court fee and jurisdiction, besides being barred by time, and the plaintiff lacked locus standi and was estopped by her own acts and conduct and acquiescence from maintaining the suit.
Plaintiff filed a replication to deny all what was said adverse to her interest in the written statement and to re-assert what was stated in the plaint. Issues:
Pleadings of the parties gave rise to the following issues:
1. Whether plaintiff Smt. Sheona is daughter of Jug Lal? OPP
2. Whether Smt. Maro was mother of plaintiff and she contracted karewa marriage with Giani as alleged in paragraph No. 2 of the plaint? If so, to what effect?OPP
3. Whether the plaintiff had been in possession of the suit property and she was dispossessed about 4 months prior to the institution of the present suit? If so, to what effect?OPP
4. If issue No. 3 is proved in favour of the plaintiff, whether the suit is barred by limitation?OPD
5. Whether the suit has been properly valued for the purposes of court fee and jurisdiction? If not, what is its value?OPP
6. Whether the plaintiff is estopped from filing the present suit by her act, conduct and acquiescence? OPD
7. Whether defendants No. 11 to 13 were alive at the time Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -4- of institution of the suit? If not, to what effect? OPP
8. Relief.
Decision of the Trial Court:
After evidence on both the sides was complete, Court of Subordinate Judge, Class-I, Jind (for brevity, the trial court) appraised the evidence and pleadings in the light of the submissions made on behalf of the parties, decided issues No. 1 to 4 in favour of plaintiff by holding that Sheona is daughter of Jug Lal and Maro and posthumous Jug Lal, Maro had contracted karewa marriage with Giani son of Sheo Chand; that the plaintiff is entitled to joint possession of the entire suit land to the extent of one third share; and that the suit was within limitation; whereas disposed of issue No. 5 by saying that it had become redundant as the plaintiff had made good deficiency in the court fee; decided issue No. 6 in favour of the plaintiff by observing that there was no evidence to show that the plaintiff was estopped from filing the suit; and disposed of issue No. 7 by observing that it had become redundant in view of amendment of the plaint, and vide judgment and decree dated 30.09.1987 decreed plaintiff's suit for declaration as prayed for and for joint possession of the suit land to the extent of one third share.
Decision of the First Appellate Court:
In Civil Appeal No. 94 of 91/1987, court of Additional District Judge, Jind (for brevity, the first appellate court), vide judgment and decree dated 15.11.1991, set aside judgment and decree of the trial court in so far as it related to land at serial Nos. (ii) and (iii) above but maintained the findings as regards the land at serial No. (i) above.Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -5-
Regular Second Appeals:
Plaintiff Sheona, aggrieved by judgment and decree dated 15.11.1991, has brought Regular Second Appeal No. 63 of 1992 praying that judgment and decree of the trial court be restored while some of the defendants have brought Regular Second Appeal No. 253 of 1992 praying that judgments and decrees of the trial court and appellate court be set aside and plaintiff's suit be dismissed in its entirety.
I have heard counsel for the parties besides going through the record of the courts below.
Submissions of the parties:
On behalf of the plaintiff it is argued that the findings recorded by the first appellate court with regard to the properties shown at serial Nos. (ii) and (iii) are erroneous and unsustainable in view of its own finding that the plaintiff is daughter of Jug Lal and Maro and because, in view of Hindu Widows Remarriage Act, 1856 (for brevity, the 1856 Act), Maro, upon her remarriage with Giani, had forfeited all rights in the family property and the property left behind by Jug Lal was to pass on to his heir(s) as if Maro were dead. According to plaintiff's counsel it has come on record that Jug Lal died somewhere around 1944 and Maro had remarried Giani two or three years thereafter and that being so on the day of passing of the decree dated 15.09.1983, Exhibit D1, she had no title in the property left behind by Jug Lal, which stood devolved upon the plaintiff. The decree, Exhibit D1, therefore, is inconsequential.
Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -6-
Per Contra, on behalf of the contesting defendants it is argued that the plaintiff has failed to prove herself to be daughter of Jug Lal and even Maro has stated that plaintiff was not born from her marital union with Jug Lal and that being so the entire property left behind by Jug Lal has rightly devolved upon the defendants and findings recorded by the courts below to the contrary are liable to be set aside and reversed. It has also been argued that the decree, Exhibit D1, and mutation, Exhibit P5, in favour of the defendants, have not been challenged by the plaintiff and, as such, have to operate against her.
Nothing more has been argued on either side.
Substantial Questions of Law:
On behalf of the plaintiff it is claimed that the appeal involves following substantial questions of law:
1. Whether in a suit for declaration and possession qua the suit land, on the basis of inheritance, there is any limitation?
2. Whether in a suit for declaration and possession qua the suit land, on the basis of inheritance, it is required to be proved as to when plaintiff is dispossessed from the suit land?
3. Whether plaintiff is entitled to inherit all the properties owned by Sh. Jug Lal, being the only legal heir of Sh. Jug Lal?
4. Whether once it is proved that plaintiff is only legal heir of Sh. Jug Lal, she can be non suited on the ground that she has not challenged some court decrees which are void ab initio?
5. Whether judgment and decree passed by ld. First Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -7- Appellate Court suffers from patent illegality?
Findings in Regular Second Appeals:
First and foremost puzzle that deserves resolution is with regard to relationship of the plaintiff with Jug Lal because plaintiff claims herself to be his daughter but the defendants dispute correctness of this claim. Maro, widow of Jug Lal, while appearing as DW2 before the trial court, has said that the plaintiff was not born from her marriage with Jug Lal. Entry with regard to birth of the plaintiff has not been proved.
As aptly observed by the first appellate court, Jug Lal died around the time of partition of the country and plaintiff was just nine months old at that time. Jug Lal's wife, Maro remarried Giani, just two or three years after Jug Lal's death. Such adverse being the circumstances attending on the arrival of the plaintiff in this world, it would be unreasonable to expect her to prove entry of her birth presumably maintained by the village Chowkidar. Non-proof of birth entry, in my opinion, cannot be used to discard plaintiff's claim that she is daughter of Jug Lal. In the situation, other circumstances have to be looked into to find out if plaintiff's claim carries weight or not.
Mother of a child is the best person to throw light on the paternity of the child. However, Maro, who, according to the plaintiff had mothered her, has denied it. However, circumstances appearing on record establish that she (Maro) has told lies as regards plaintiff's paternity and maternity. Maro, remarried Giani son of Sheo Chand when the plaintiff was just two years old;
she then mothered three daughters of her second husband, Giani; and suffered a Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -8- decree, Exhibit D1, in favour of said Giani in respect of portion of land left behind by her first husband, Jug Lal. This should suffice to infer that with the passage of time and changed scenario Maro developed love and affection with her second husband and her offsprings from the second marriage and distanced herself from the plaintiff lest she (the plaintiff) should stake her claim to the estate of Jug Lal and thereby deprive her second husband and her daughters from the second marriage of it. That being the situation, it should surprise none that she denied birth of the plaintiff from her womb and loins of Jug Lal. She has gone to the extent of denying her second marriage with Giani (even though the circumstances appearing on record prove the contrary).
In such a difficult situation, Section 50 of the Indian Evidence Act, 1872 comes to the aid of the plaintiff. It says, "When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact." PW3, Titu is Nambardar of the village and PW4, Ratna is plaintiff's cousin. Both these witnesses, thus, had special knowledge as regards relationship of the plaintiff with Jug Lal. They have stated in one voice that plaintiff is daughter of Jug Lal and after Jug Lal's death, Maro had remarried with Giani son of Sheo Chand. Plaintiff, while appearing as PW1, has also stated on oath that she is daughter of Jug Lal and Maro. None of the three witnesses has been cross-examined on behalf of the defendants on this aspect of the matter which amounts to the defendants' Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -9- admitting this statement of the witnesses as correct in view of the settled position of law that if a witness is not cross-examined in respect of her deposition on a particular fact and is not confronted with a plea to the contrary, the fact so stated by the witness is deemed to have been admitted as correct by the party against whose interest the witness has deposed.
There is no denial to the fact that Maro was married to Jug Lal. She while appearing as DW2 before the trial court, however, has denied that she had remarried with Giani. As aforesaid, PWs Sheona, Titu and Ratna have not been cross-examined by the defendants as regards their depositions that after Jug Lal's demise, Maro had remarried with Giani. Plaintiff has also proved on record copy of mutation No. 634 of 23.03.1987, Exhibit PX, whereby Maro is shown to have inherited property of Giani, alongwith daughters of Giani, named Jiwni, Mehma, Bharto and Patasho daughter of Bhanti daughter of Giani. Were it that Maro did not re-marry Giani, she would not have inherited Giani's estate. Not only this, Exhibit P1, mutation dated 04.06.1956 was entered and sanctioned to show disinheritance of Maro as regards the property left behind by Jug Lal in view of her remarriage with Giani. It specifically states that Maro had admitted before the revenue authority to have contracted a karewa marriage with Giani. Maro has not disputed her presence before the revenue authority at the time of sanctioning of this mutation nor has its correctness been challenged. Concurrent finding of fact recorded by the courts below based on these facts does not call for any interference.
Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh
R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -10- It has already been noticed in the earlier part of this judgment that Jug Lal died somewhere around the year 1944 and Maro remarried with Giani about two or three years thereafter. Plaintiff had already dawned upon this planet 'earth' when Maro remarried with Giani. Consequent upon her remarriage with Giani, Maro's rights and interests which she might have in her deceased husband's property by way of maintenance, or by inheritance to her husband ceased and determined as if she had then died, and these were automatically succeeded by the plaintiff, the only heir of Jug Lal surviving at that time, by operation of Section 2 of the 1856 Act, (for brevity, 'the 1856 Act'), which reads as under:
"2. 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 or 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 other persons entitled to the property on her death, shall thereupon succeed to the same."
In the year 1956 the Hindu Succession Act, 1956 (for brevity, 1956 Act) came into force and plaintiff became absolute owner of the property inherited by her from her father, Jug Lal. Section 14 of the 1956 Act provides as under:
"14. Property of a female Hindu to be her absolute Property.-
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -11-
limited owner.
Explanation.- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of arrears of maintenance, or by gift from any person, whether a relative or note, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
Thus, after Maro remarried with Giani, the plaintiff became owner of the entire suit property to the exclusion of all others, including her mother, Maro, by virtue of Section 2 of the 1856 Act and her right was affirmed by Section 14 of the 1956 Act. As such, on 15.09.1983, when decree Exhibit D1 was passed, Maro did not have any right or title in property left behind by Jug Lal, including properties at serial Nos. (ii) and (iii). Therefore, going by the principle "who hath not, giveth not", the decree, Exhibit D1, did not convey any title in favour of the defendants therein. The plaintiff, undisputedly, was not a party to the decree, Exhibit D1, and for that reason also it cannot affect rights of the plaintiff. The plaintiff, therefore, was not required to make a challenge to the same. Therefore, finding recorded by the first appellate court with regard to properties at serial Nos. (ii) and (iii) is erroneous and is hereby set aside and reversed.
Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh
R.S.A. No.63 of 1992 & R.S.A. No.253 of 1992 -12- Questions posed on behalf of the plaintiff are answered accordingly and as a natural fall out, judgment and decree dated 15.11.1991 of the first appellate court are set aside as regards properties at serial Nos. (ii) and
(iii) and those of the trial court are restored.
Resultantly, RSA No. 63 of 1992 is allowed and RSA No. 253 of 1992 fails and is dismissed. Plaintiff shall also be entitled to her costs throughout.
Pending miscellaneous applications, if any, are rendered infructuous and stand disposed of accordingly.
(MAHAVIR S. CHAUHAN) JUDGE 09.01.2014 adhikari Virender Singh Adhikari 2014.01.16 09:09 I attest to the accuracy and integrity of this document High Court Chandigarh