Delhi District Court
Sudesh Others vs Central Water Commission Others on 17 August, 2023
IN THE COURT OF SH. CHANDER JIT SINGH
ADDITIONAL DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Suit No. : CS DJ 205720/2016
CNR No. : DLST01-000052-2010
Suit filed on : 12.10.2010
Suit registered on : 03.02.2016
Arguments concluded on : 28.07.2023
Pronouncement on : 17.08.2023
IN THE MATTER OF:
1. Smt. Sudesh, aged about 40 years, W/o Late Satpal
R/o H. No. 291, Gate No.1,
Prem Sagar Wali Gali, Main Market
Badarpur, New Delhi-110044
2. Babli, aged about 26 years
D/o late Satpal
R/o H. No. 291, Gate no.1,
Prem Sagar Wali Gali, Main Market
Badarpur, New Delhi-110044
3. Neeraj, aged about 24 years
S/o late Satpal
Prem Sagar Wali Gali, Main Market
Badarpur, New Delhi-110044
4. Pankaj, aged about 20 years
S/o late Satpal
Prem Sagar Wali Gali, Main Market
Badarpur, New Delhi-110044
..................Plaintiffs
CS DJ 5720/16
SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS
Chander Jit Singh
ADJ-05, South Saket, New Delhi
Page no. 1 of 24
Versus
1. Central Water Commission
Govt. of India,
Sewa Bhawan, R.K. Puram,
New Delhi-110066
2. Smt. Kiran
H. No. E-175, Moti Bagh,
New Delhi.
.............Defendants
JUDGMENT
PLAINT IN BRIEF:-
1. Briefly case of plaintiff is that plaintiff No.1 is legally wedded wife of Late Sh. Satpal and plaintiff No. 2 to 4 are the children adopted by Late Sh. Satpal. That plaintiff No.1 was earlier married to Rajbir, brother of Late Sh. Satpal. In October 1980 Rajbir suffered heart attack and eventually expired on 26.10.1989 leaving behind his widow, plaintiff No.1 and three children, plaintiff No. 2 to 4. That at the time of death, Rajbir was working as daily wager in Central Public Work Department (CPWD). After his death, plaintiff No.1 was appointed on compassionate grounds. That after about one month of death of Rajbir, as per social customs and with permission of elders in the family, plaintiff No.1 was got married to late Rajbir's brother, Satpal. The solemnization of marriage had occurred in presence of Local Panchyat. After that plaintiff No.1 and Late Satpal CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 2 of 24 started living together as husband and wife. Satpal also adopted three children who are plaintiff No.2, 3 and 4 in this case.
1.1 That Satpal was working as Chowkidar in Central Water commission (CWC) and was not married when he joined service. Satpal was alloted government accommodation and after marriage, plaintiffs started residing with Satpal. In 1992, Satpal nominated plaintiff No.1, his wife and children as nominees for his due in case of his death. That in the Voter Identity Card, plaintiff No.1 has disclosed Sh. Satpal as her husband. In 2006, Ration Card was made by Satpal wherein plaintiff No.1 and plaintiff No.2 to 4 are recorded as his wife and children respectively.
1.2 That in 2006, Satpal developed illicit relations with a married woman, namely, Ms. Kiran but Satpal could not marry her as both Satpal and Kiran were already married. Since the day of Ms. Kiran coming into life of Sh. Satpal, Sh. Satpal started ill treating plaintiffs. Plaintiffs were moved out of Govt. accommodation on the pretext that premises were required to be vacated. Plaintiffs were forced to take up rented accommodation and thereafter, relationship of plaintiff with Satpal became strained. That at the time of death of Satpal on 10.6.2010, plaintiff No.2 to 4 were dependent upon him and being his legal heirs, claim was made for same. That in legal notice sent to CWC for release of dues, it was pointed out by CWC that Smt. Kiran was nominee for the payment. That plaintiff No.1 to show valid CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 3 of 24 documents in support her claim. That plaintiffs alone are entitled to family pension and for compassionate appointment as well as other dues. Hence, present suit was filed.
WRITTEN STATEMENT
2. Notice of the present suit was served upon defendant and on receipt of notice, defendant had entered their appearance and written statement was filed contending that plaintiff had not approached the court with clean hands and suppressed the material facts. That on 4.6.2002 Sh. Satpal had applied for GPF advance on the ground of Mundan Ceremony of his son Pankaj. Satpal was directed to file details of his family but he immediately requested to cancel his request. That Sh. Satpal had disclosed that due to mistake and ignorance, he mentioned name of his Bhabhi and nephews in GPF nomination form. At that time, fresh details of family for nomination were filed on 18.2.2002 wherein he nominated his mother Smt. Prakashi. Those details were accepted by CWC. On 27.10.2006, Satpal declared his marriage with Kumari Kiran and have further submitted nomination forms under DCRG, GPF, CPGIS and details of family. In these documents, Satpal nominated Smt. Kiran as his nominee. This nomination was also accepted by competent authority. That a legal notice was sent by plaintiff which was duly replied. That plaintiff No.1 had replied that on 9.3.2010 photocopies of cum documents were furnished to establish her claim of being wife of Late Satpal but she did not CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 4 of 24 furnish affidavit. That present suit is not properly valued as per law. Other contentions are also denied and submitted that the present suit be dismissed with cost.
REPLICATION:-
3. Replication has also been filed on behalf of plaintiff to the written statement filed by defendant denying all the contention made by defendants in their written statement. It is denied that the suit is false, frivolous, without any cause of action and is not maintainable in law. It is also denied that plaintiffs are not entitled to the relief as sought. All other contentions made by defendants in their written statement were also denied.
ISSUES FRAMED
4. After completion of pleadings, following issues were framed vide order dated 02.12.2011 which are as follows;-
1. Whether the plaintiff No.1 is the legally wedded wife of Late Satpal, and plaintiff No.2, 3 &4 are the children of deceased Late Satpal by adoption? OPP
2. Whether the plaintiffs are entitled to declarations that they are the only legal heirs of deceased Late Satpal, and so entitled to the family pension and other death-cum-retirement benefits of Late Satpal, who was employed with defendant No.1 prior to his death on 10.6.2010? OPP.
3. Whether the defendant No.2 Smt. Kiran is the legally wedded wife of Late Satpal? OPD-2.CS DJ 5720/16
SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 5 of 24
4. Relief EVIDENCE OF PLAINTIFF:
5. In order to prove her case, plaintiff has examined four witnesses. Smt. Prakashi Devi has been examined as PW-1 who stated that Smt Sudesh had three children namely, Babli, Neeraj and Pankaj from the wedlock with Rajbir. That suffered heart-attack and died on 26.10.1989. She further stated that one month after the death of Rajbir, as per social customs, his younger son Late Satpal married Smt. Sudesh and she was present in the wedding. That children were adopted by Late Satpal as his own children. That Late Satpal was living with Smt. Sudesh and the children at Quarter No. 850 R.K Puram, Sector-1 New Delhi. That Late Satpal had left behind his wife Sudesh and his three children namely Babli, Neeraj and Pankaj as his only legal heir. She was duly cross-examined.
5.1 PW-2 Mahabir Singh was examined as PW-2 who deposed on the same line as deposed by PW-1 Smt. Prakashi Devi and he proved his evidentiary affidavit as Ex. PW2/A. The witness was duly cross examined on behalf of defendants wherein he stated that he was Ex-Pradhan of village Panchayat. That document Ex. PW5/1, bears his signature. That document Ex.PW5/1 is a document written in Hindi certifying solemnization of marriage of Smt. Sudesh with Shri Satpal after death of Sh. Rajbir within one month and as per social custom. Witness further stated that such a certificate can be given for CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 6 of 24 social functions. The certificate was given by Gram Panchayat Jeemna. That certificate does not bear any date nor he does remember as to on which date did he give this certificate. That he has certified in this certificate that Sudesh is the wife of Satpal. The witness further testified that Gram Panchyat is not competent to issue a marriage certificate.
5.2 Sh. Prakash is examined as PW-3 who also deposed on the same line as deposed by PW-1 and PW-2 and he proved his evidentiary affidavit as Ex. PW3/A. The witness was cross examined on behalf of plaintiff and during cross examination, he cannot tell the exact date of death of Sh. Rajbir Singh, first husband of Sudesh. That he did not remember the date of marriage of Sudesh with Satpal. That his daughter Sudesh did not get any employment on compensate ground after the death of her husband Late Rajbir. That he did not remember the date of death of Satpal. That after the marriage of his daughter with Satpal, he had been visiting them at R.K Puram on several occasions.
5.3 Smt. Sudesh has been examined as PW-5 but none has been examined as PW-4 in the present suit. PW-5 (4) Smt. Sudesh who reiterated the facts as mentioned by her in her plaint and relied upon the documents i.e. i. Copy of marriage as recorded by village Panchyat in the presence of witnesses as Ex. PW5/1.
CS DJ 5720/16SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 7 of 24 ii. Copy of nomination form submitted by late Satpal nominating her and their children as nominees are Ex. PW5/2, iii. Copies of the receipts of the electronic items purchased by Satpal in the name of Smt. Sudesh are Ex. PW5/3, iv. Copy of the voter's Identity Card as Ex. PW5/4, v. Copy of ration card as Ex. PW5/5, vi. Copy of legal notice dated 5.7.2010 as Ex. PW5/6, vii. Copy of the letter dated 18.8.2010 written by respondent is Ex. PW5/7 and viii. Copy of the letter dated 3.9.2010 alongwith documents submitted are Ex. PW5/8 collectively.
5.4 The witness duly cross examined on behalf of defendants and during her cross examination, she deposed that she was married with Satpal in the year 1989 in village Jeemna, Ziwana District, Baghpat, UP and she remained with Satpal as his wife for about 18 years. Witness further deposed that after the death of Rajvir, she had taken job in CPWD on compassionate ground as wife of Late Rajbir and she is still doing the job in CPWD. That she had taken appointment in CPWD in the year 1992 on daily wages on compassionate ground. That she was not aware about any marriage of Satpal with Kiran. Witness further deposed that initially she was appointed in CPWD on daily wages, however, now she has been confirmed. That in her CGHS Card name of her husband is mentioned as Rajvir and in service record also, name of her husband has been mentioned as Rajvir. That name of her children CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 8 of 24 is also mentioned in CGHS Card as the sons and daughters of Late Rajvir. Witness further testified that she was not living with Satpal at the time of his death. That she came to know about the death of Satpal from the villagers as his family members had concealed this fact from her. She had obtained the death certificate of Satpal from the village.
EVIDENCE OF DEFENDANT:-
6. Defendants have examined three witnesses in support of their case. Smt. Sunita has been examined as DW-1 and proved her evidentiary affidavit as Ex. DW1/A. She deposed that she is niece of the defendant No.2 and defendant No.2 is the legally wedded wife of Late Satpal on dated 23.4.2006 in the presence of the relatives and family members i.e. mother in law, namely, Prakashi Devi w/o Late Sh. Mange Ram. The witness further deposed that she was also present at the time of marriage of defendant No.2 and also at the time of death of Satpal. Witness further stated that after the marriage, defendant No.2 was living with Late Sh. Satpal during his life time as husband and wife. The witness also stated that husband of defendant No. 2 was working as Chowkidar in Central Water Commission and he was also alloted a Govt. Quarter at 1/95, R.K Puram, Sector-1 New Delhi and after that he was alloted a Govt. Quarter at E-75 Moti Bagh, New Delhi. Further, it is stated by witness that in the year 2006, Late Satpal had nominated the defendant No.2 as nominees for his dues in case of his death.
CS DJ 5720/16SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 9 of 24 6.1 The witness was duly cross examined at length on behalf of plaintiff and during her cross examination, she stated that his uncle Satpal was in Govt. Service who has married to Kiran. The witness further stated that after her marriage, she stayed at New Delhi with Kiran from 2001 to 2009. She further testified that she had also met Satpal on the date of marriage of Kiran and Satpal on 23.4.2006. She stated that Sudesh and Satpal are not married. She denied the suggestion that Kiran was already married on 22.4.2006. She further testified that she was informed about Satpal's death by Kiran telephonically on 10.6.2010. She also stated that on Satpal and Kiran's marriage, she did not visit the temple and was at home. She had visited on 10.6.2010- and reached at 5.00pm at thattime Satpal's body was taken to native place at Bagpath. She also testified that Kiran informed her that Satpal had nominated her for his post retirement benefits at CWC.
6.2 Ms. Francisca Minj was examined as DW-2 who proved her affidavit of evidence as Ex. DW2/A. She also deposed on the same line as deposed by DW-1.
6.3 The witness was also cross examined at length on behalf of plaintiff and during cross examination, she stated that she was informed about Kiran's marriage as well as Satpal's death by Kiran herself telephonically. She testified that the knowledge regarding Kiran's marriage as well as Satpal's death is hearsay and she was not present personally for either of the CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 10 of 24 said events. She did not know if Kiran was already married on 22.4.2006. She further testified that she never visited E-175 Motibagh, New Delhi and she again stated that she had visited Satpal died at E-175, Motibagh, New Delhi. She denied that defendant No.2 never married to Satpal and Kiran not being a legal heir of Satpal is not entitled to any of his benefits (post death).
6.4 Smt. Kiran was examined as DW-3 who proved her evidentiary affidavit as Ex. DW3/A. She reiterated the facts as mentioned by her in her written statement. She also relied upon the document i.e. photographs of marriage ceremony are Ex. DW3/1 collectively and photocopy of death certificate and photocopy of five photographs depicting Satpal's death are collectively Ex. DW3/2.
6.5 The witness was duly cross examined and during her cross examination, she deposed that she was earlier at E-175, Motibagh alongwith her husband, in the servant quarter. Witness also stated that she became aware about the marriage between Satpal and Sudesh by way of present suit. That she met for the first time to Satpal in the year 2006 at Ambedkar Basti, Satpal was introduced to her by her niece Sunita Lakra. She further testified that the persons from her family who attended her marriage were Sunita Lakra, (niece) Sushila Lakra (niece), Shanti Minj ( niece) and , Asaph Kujur (husband of Sunita) and from the side of Satpal, his mother Prakashi and nephew Ravi were CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 11 of 24 present at the wedding ceremony which took place at Shiv Mandir, Motibagh. That she is not aware of the reason or taking pictures of the dead body of Satpal. The witness further testified that Satpal died due to heart attack at about 10.00am. The photographs Ex. DW3/2 were taken at about 10-11.00 pm on 10.6.2010 at Village Ziwana, District Bagpath where dead body was taken from Motibagh. She denied that since she knew about the subsisting marriage of Satpal with Sudesh, she has never been married to Satpal. She also denied that as on 22.4.2006 she was married DISCUSSION/ FINDINGS:-
7. I have heard the contentions of both the parties and gone through record. I have gone through written arguments as well. My issue wise findings are as under:-
ISSUE NO. 1.
(Whether the plaintiff No.1 is the legally wedded wife of Late Satpal, and plaintiff No.2, 3 &4 are the children of deceased Late Satpal by adoption .)
8. It is an admitted fact in the plaint at all that plaintiff No.1 was got married to Rajbir, brother of Late Sh. Satpal and on demise of Rajbir, plaintiff No.1 got married with Satpal as per Social Customs. The adoption of plaintiff No. 2 to 4 is claimed to be consequent of said marriage between plaintiff No.1 and late Satpal. It is also not averred that any separate ceremony CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 12 of 24 was performed regarding adoption of children. Thus, as such, adoption of children is claimed and based on the alleged marriage between Satpal and Plaintiff no.1. It is also an admitted fact that no religious ceremony had taken place for solemnization of marriage as the marriage was solemnized according to Social Customs.
Onus to prove this issue is upon plaintiff No.1. On the aspect of proving customs, this court is guided and enlighten by Case law laid by Hon'ble Supreme Court of India in case tilted as 'Salekh Chand (Dead) By LRs vs. Satya Gupta And Ors., decided on 4 March, 2008 in CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C.) No. 1380 of 2002) , inter-alia held as under:-
"6. In Mookka Kone v. Ammakutti Ammal[AIR 1928 Mad 299 (FB)], it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom."
It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 13 of 24 another. It is a well established law that custom cannot be enlarged by parity of reasoning.
Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case P.W.1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. P.W.3 as observed by the lower appellate Court was only 43 years' old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish. The evidence of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash had adopted Munna Lal who was his real sister's son. As already pointed out above, the trial court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 14 of 24 sister of Om Prakash. Besides, this solitary instance of adoption of his sister's son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved. A custom derives its force from the evidence from long usage having obtained the force of law.
All that is necessary to prove is that usage has been acted upon in practice for such a long period with such invariability as to show that it has, by consent, been submitted so as to establish governing rules of a particular locality or community. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove 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 a particular locality. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i- am or Manual of Customary Law.."
It is further held by the Hon'ble Supreme Court of India in case titled as 'Harihar Prasad Singh And Ors vs Balmiki Prasad Singh And Ors' 1975, decided on 10 December, 1974, AIR 733, 1975 SCR (2) 932, inter-alia held as under:-
"(b) 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 family. The evidence should be clear and unambiguous, though instances' in support of a family custom may not be many and frequent.CS DJ 5720/16
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(c) The initial onus of proving the special family custom lies on the plain-tiffs. Ramalakshmi Ammal v. Sivanatha Perumal Sethurava, 14 M.I.A. 570, 585 applied. Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed."
8.1 In the 5th edition of book on 'Jurisprudence' by R.W. M. Dias, it is written in respect of custom that:-
"At that date the necessary conditions, which had to be fulfilled, were obvious.
(1) The custom had to possess a sufficient measure of antiquity. 'Sufficient' means today that it must have existed since before 1189, but this was by no means the original interpretation. For instance, Professor Pluck-nett quotes Azo (d 1230) who said 'A custom can be called long if it was introduced within ten or twenty years, very long if it dates from thirty years, and ancient if it dates from forty years'.
The way this requirement works now is that the onus of proving antiquity is upon the person who sets up the custom, but his task is helped by a presumption of existence since before 1189 on proof of the existence of the custom for a substantial period. The burden of rebutting it then lies on the other party.
(2) The custom must have been enjoyed continuously. This refers, not to the active exercise of the custom, but rather to its assertion. (3) The custom must have been enjoyed 'as of right', nec vi nec clam nec precario. For without this there is no evidence that it exerts obligatory pressure to conform.
(4) The custom must be certain and precise.
CS DJ 5720/16SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 16 of 24 (5) The custom had to be consistent with other customs in the same area. The fact that it conflicted with local customs elsewhere did not matter. For if a custom was a departure from the common law itself, it could equally well diverge from some other local departure.'' 8.2 The above noted judgments laid down the established law in respect of customs. To hold that a custom has sanctity of law, it must be such which comes through the test which are laid down in law to measure journey of the custom till its approval as Law. The first aspect which is required to be proved by a person claiming, is existence of custom. The said custom should be in existence since time immemorial. However, it does not mean that multiple or numerous examples regarding observance of said custom are to be listed or put on record but it must be established with certainty that the custom is in existence from very long period and is followed as such. In the evidence adduced by plaintiff No.1 i.e. PW-5 Smt. Sudesh had stated that as per social customs and with consent her family members and elders, she was married to Late Satpal. That Local Panchayat in village solemnized marriage between her and Late Satpal. Mr. Mahabir Singh was examined as PW-2 who has stated that local Panchayat, in the presence of village elders, solemnized the marriage between Sudesh and Satpal. PW-2 Mahabir Singh was duly cross examined wherein he stated that on Ex. PW5/1, he has put his signatures and is a document in Hindi language regarding solemnization of marriage of Sudesh and Satpal. It is also further stated that certificate does not bear any date nor does he CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 17 of 24 remember as on which date did he give the certificate. He also stated that he was present in the marriage ceremony. He has also stated that he was Surpunch of Village Jeemana from the year 1995 to 2000. In the context of PW-5, it was argued on behalf of defendant Kiran that admittedly marriage between plaintiff No.1 and Satpal was solemnized in the year 1989 whereas the certificate is issued by PW-2 Mahabir Singh who was Pradhan from the year 1995 to 2000. It is argued that, thus, the document does not have any probative value. Ex. PW5/1 is perused. This document issued by PW-2 Mahabir Singh as 'Ex Pradhan' of Village Jeemana. Apparently, there are no signatures of Mahabir Singh on Ex. PW5/1 and only his name is written. So much so, PW-2 in his examination in chief has not stated anything about Ex.PW5/1 including that it did bear his signatures. The document Ex.PW5/1 bears thumb impression and name of certain persons also. It is also correct that there is no date on which the document Ex.PW5/1 was issued. Ex.PW5/1 cannot be considered as a marriage certificate by any means nor did PW-2 Mahbir Singh claimed it to be so. Ex. PW5/1 can be considered from the aspect as a material to substantiate the plea of social customs. However, this document or testimony of PW-2 simply says that marriage was solemnized as per social customs. It is not stated by any witness examined on behalf of plaintiff that since how long or from time immemorial the social customs in question is prevalent and observed. It is also not said by PW-2 Mahabir Singh that during his tenure as Pradhan if any other marriage has taken CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 18 of 24 place on the basis of said social customs or at any other time, a marriage has been solemnized as per said social customs. PW-1 has also stated that as per social custom, marriage of plaintiff no.1 and Satpal was solemnized. However, PW-1 has not stated that she has seen any other marriage solemnized on the basis of said custom. Besides stating that social custom was the basis of marriage, nothing is stated about the custom i.e. since when it was in vogue and/ or other marriage have also been solemnized. To prove or to show that the customs is prevalent since time immemorial any elderly of said village should have been examined who could have given details as to since what the said social custom is in existence if at all such social custom has existed.
8.3 In view of the above discussion plaintiff could not prove the fact of custom of marrying younger brother in case of death of elder brother. More so, in the document of Plaintiff the name of husband continue to be of elder brother of deceased Satpal. Further, plaintiff could have proved her claim by showing long cohabitation between Plaintiff and late Satpal but no evidence is produced on this aspect. Admittedly, no issue has been born out of claimed wedlock between plaintiff No.1 and deceased Satpal. Therefore, on this aspect also Plaintiff could not substantiate her claim. Therefore, the issue is decided in favour of defendant and against plaintiff.
ISSUE NO. 3 CS DJ 5720/16SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 19 of 24
9. Material on record shows that defendant is Christian by religion. It has also come on record during the evidence of defendant that till date defendant no.1 is a Christian and has not converted as Hindu. As per the 'Indian Christian Marriage Act' 1872, marriage between persons, one or both of whom is [or are] a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void. This provision is incorporated in Section 4 of Indian Christen Marriage Act 1872. Further, relevant provisions are contained in Section 25 and Section 5 of the Act. As per Section 25, after issue of certificate by Minister, marriage may be solemnized between persons therein described according to such form or ceremony as Minister thinks fit to adopt. That marriage is to solemnized in the presence of at least two witnesses beside Minister. Section 5 of the Act gives details of the person who may solemnize the marriage of Christian in India. In the present case one of the party is Christian. It has come on record that marriage between Defendant no.1 and late Satpal was solemnized through Mangal Sutra / exchanged of garland and putting Sindur. It is not the case of defendant that the marriage was solemnized in the presence of any of the person specified in Section 5 of the Indian Christian Act 1872. Further there is no proof on record to show that the said ceremony was approved by Minister. There is also no evidence who were the witnesses present at the time of claimed solemnization of marriage of CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 20 of 24 Satpal and Defendant no.1 Kiran. Therefore, it is clear that any of the conditions laid down by Indian Christian Act not fulfilled. Hence, second part of Section 4 of the Act will be applicable. As per that second part of Section 4, any marriage solemnized otherwise than in accordance with such provision is void. As discussed above, evidence on record as that as to how marriage between Kiran and Satpal was solemnized. The said solemnization is neither in compliance of Section 5 or Section 25 read with other provisions of Indian Christian Act, 1872. Therefore, even if any such marriage have been solemnized, same is void by virtual of applicability of Section 4 of Indian Christian Marraige Act. Further, citizens of this country can solemnize the marriage under the Special Marriage Act 1984 as well. Section 12 of Special Marriage Act 1954 provides about form / where marriage may be solemnized. Said marriage may be solemnized at the office of Marriage Officer or at such place within the reasonable distance there from, as party may desire and upon such conditions and payment of such additional fee, as may be prescribed. Clause 2 provides that the marriage may be solemnized in any form which the party may choose to adopt, provided that it shall not be completed and binding on the parties unless each party says to the other in the presence of Marriage Officer and three witnesses and in any language understood by parties (I) (A) take (B) to be may lawful wife (or husband). In the present matter no evidence is produced to show that the claimed marriage between defendant no.1 and alleged Satpal was CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 21 of 24 in the presence of Marriage Officer or three witnesses. No details of any person who was present is given or nor any such person has been examined. Particularly in his evidence, defendant has examined Ms. Francisca Minj as Ex.DW-2 but she has also stated that she was told about Kiran marriage between Satpal and Kiran telephonically by Kiran. Therefore, there is no material on record to substantiate and prove that conditions laid down in Section 12 of Special Marriage Act 1954 have been fulfilled. In absence of fulfillings conditions laid down by statute governing marriage between citizens, it cannot be said that party has proved and discharged his onus to prove fact of marriage with Satpal. The onus is to prove this issue was on defendant. Further, above discussion shows that no cogent material has been produced to satisfy and to show fulfillment of criteria as laid down statute concerned. Therefore, in view of above discussion this issue is decided against defendant and in favour of plaintiff.
ISSUE NO.2
10. it is claimed that plaintiff No.2 to 4 are the only legal heirs of deceased Satpal. On behalf of defendant Smt. Kiran, it is not contended that out of her claimed wedlock with deceased Satpal any other children was born. On behalf of defendant NO.1 also besides the parties / litigants in the suit, it is stated that in the details given to the department regarding his family, it was declared that name of her mother is Smt. Prakashi Devi and two brothers Sunder and Subash. That as per nomination form, late Satpal had nominated his mother Smt. CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 22 of 24 Prakashi Devi. However subsequently, it was declared that Satpal married with Kumari Kiran and submitted the documents giving details of the family. Smt. Prakashi Devi is not a party to the present suit. As above discussion shows that plaintiff No.1 could not prove to be legal wedded wife of deceased Satpal. Therefore, the consequent adoption of plaintiff No.2 to 4 is also not proved. It was argued on behalf of plaintiff that in such scenario the plaintiff No.2 to 4 are only the legal heirs being the legal heirs as per class II of Hindu Succession Act. The pleadings are silent on the aspect if the mother of deceased Satpal is today alive or not. As per schedule appended to Hindu Succession Act, mother is class 1 heir and brother; sons and daughter of brother are class II as per entry 4. Section 8 of Hindu Succession At provides the rule of succession. Section 8, inter-alia stipulates that firstly the property shall devolve upon the heirs being the relief specified in the class 1 of the schedule. Section 9 of Hindu Succession Act provides the order of successor among heirs in the schedule. The issue under consideration is that whether plaintiffs no. 2 to 4 are entitled to be declared that they are the only legal heirs of deceased Satpal. Since, the material on record shows that at best plaintiff No.2 to 4 are class 2 heirs of deceased Satpal and status fo all the class 1 heir is not cleared, they cannot be declared being only the legal heirs for the reason that Smt. Prakashi Devi is not party to the suit nor it is stated that whether she is alive or not as there are no pleadings on this aspect and consequently no evidence was adduced otherwise also. Smt. Prakasi was CS DJ 5720/16 SUDESH OTHERS Vs. CENTRAL WATER COMMISSION OTHERS Chander Jit Singh ADJ-05, South Saket, New Delhi Page no. 23 of 24 examined by Plaintiff as one of their witness. Thus, it is clear that Smt. Prakashi was alive during the pendency of this suit. After, that present status of Smt. Prakashi is not clarified on record. Thus, it cannot be held that there is no class I heir alive, leaving Plaintiff no.2 to 4 as the only legal heirs of late Satpal. Hence, this issue is decided against the plaintiffs and in favour of defendant.
RELIEF
11. In view of the above discussion, the suit filed by plaintiff is hereby dismissed. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court.
Dated. 17.08.2023 CHANDER JIT SINGH ADJ-05, SOUTH SAKET COURTS NEW DELHI/17.08.2023 This judgment contains 24 pages. Each page has been checked and signed by me.
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