Punjab-Haryana High Court
Garja Singh And Another vs Surjit Kaur And Another on 11 October, 1990
Equivalent citations: AIR1991P&H177, II(1992)DMC50, (1992)102PLR612, AIR 1991 PUNJAB AND HARYANA 177, (1991) 2 CURLJ (CCR) 353, 1992 CHANDLR(CIV&CRI) 11, (1992) 2 DMC 50, (1991) 1 HINDULR 46, (1993) MARRILJ 23, (1991) MATLR 249, (1992) 2 PUN LR 612
JUDGMENT
1. The unsuccessful plaintiffs have come up in second appeal against the judgment and decree of the first appellate Court which, on appeal, affirmed those of the trial Judge and dismissed their suit for possession of the suit land and also for perpetual injunction.
The facts:--
Gulaba (since deceased) was the last male owner of the property in dispute. He died on September 5, 1969. The plaintiffs claim themselves to be the grandsons of father's brother of the deceased. They also set up a will allegedly executed by the deceased on August 16, 1969 in their favour. The relationship of defendant No. 1 with the deceased was denied. It was denied that she was validly married to the deceased. Karewa Nama dated October 28,1965 alleged to have been executed between defendant No. 1 and the deceased was merely a paper transaction. In the Karewa Nama it was recited that defendant No. 1 was married to Bishan Singh who had died about four years back. But in fact, said Bishan Singh had died on April 22, 1964. The mutation of inheritance of the deceased was sanctioned in favour of defendant No. 1 and this led to the filing of the instant suit.
2. Defendant No. 1 denied the allegations made in the plaint and claimed that she was the legally wedded wife of the deceased who had contracted Karewa form of marriage with her. Karewa Nama was executed and registered October 28, 1965. She denied that she was married to Nazar Singh. The Will pleaded by the plaintiffs was forged and fictitious. She denied that the deceased had executed any Will in favour of Nachhattar Singh.
3. Defendant No. 2 Nachhattar Singh also contested the suit and pleaded that a valid Will dated September 1, 1969 was executed by the deceased in his favour. It was also denied that the deceased had executed any valid Will in favour of the plaintiffs. The relationship of the deceased with the plaintiffs was also denied.
4. The pleadings of the parties gave rise to the following issues:--
1. Whether the plaintiffs are the grandsons of Atra, real brother of Ratna, father of Gulaba Singh deceased? OPP
2. Whether Gulaba Singh deceased executed a valid will in favour of the plaintiffs? OPP
3. Whether the defendant Surjit Kaur is not the wife of Gulaba deceased? OPP
4. Whether Gulaba deceased executed a valid will in favour of Nachhattar Singh defendant? OPD-2
5. Whether the present suit is not maintainable? OPD 1
6. Relief.
5. The trial Court held under issue No. 1 that the plaintiffs were the grandsons of Atra, real brother of Rama, father of the deceased; under issue No. 2 it was held that the deceased did not execute a valid will in favour of the plaintiffs; issue No. 3 was answered in favour of defendant No. 1 and it was held that she was the widow of the deceased; issue No. 4 was decided against defendant No. 2 Nach-hattar Singh; issue No. 5 was decided in favour of the plaintiffs and it was held that the suit was maintainable. In view of the findings under issues Nos.2 and 3, the suit was dismissed.
6. On appeal by the plaintiffs, the first appellate Court affirmed the findings of the trial Judge under issues Nos. 2 and 3. Defendant No. 2 did not challenge the judgment and decree of the trial Court in first appeal.
7. In the second appeal, the parties have principally assailed the finding of the first appellate Court holding that defendant No. 1 was the legally married wife of the deceased. The facts which stand established on record may briefly be summarised:--
(i) Karewa Nama dated October 28, 1965 (Ex. D-4) was executed by the deceased and defendant No. 1. In the Karewa Nama, it was recited that the father of defendant No. 1 soleminised the marriage of defendant No. 1 with one Bishan Singh of village Khanpur about 10 years ago who died four years back (from the date of execution of this document). No issue was born out of this wedlock. She being a widow performed Karewa marriage with Gulab Singh (since deceased);
(ii) Bishan Singh, the first husband of defendant No. 1, died on April 22, 1964 and death entry to this effect is Exhibit PW12/D;
(iii) Bishan Singh son of Nihal Singh son of Bhola Singh, resident of village Khanpur, Police Station Sadar Ludhiana filed a complaint under S. 420, Penal Code, against Basant Singh son of Pritam Singh son of Ishar Singh; Pritam Singh son of Sarwan Singh, Smt. Surjit Kaur alias Ajeet Kaur alias Jeeto wife of Bishan Singh, then residing with Basant Singh, accused No. 1. The accused were acquitted vide order dated December 12, 1962. The extract of the Goshwara kept in the record room is Ex. P-2.
(iv) Defendant No. 1 appeared as a witness in criminal case No. 141/51 of 1966 (trial No. 35 of 1967) titled as State v. Inder Singh etc. This case related to the trial in the murder case of Basant Singh. In her statement before the trial Judge, she stated that Basant Singh deceased, Pritam Singh P.W., herself and her brother Prem Singh were prosecuted under S. 420, Penal Code by Bishan Singh, her husband, but were acquitted. It was also stated by her that after the death of her husband, she stayed in the house of Basant Singh as a sister for about 7 years. Basant Singh, deceased, arranged her Karewa with Gulab Singh. Inder Singh and Narain Singh also took part in arranging her Karewa marriage with Gulab Singh. Basant Singh took Rs. 1200/- from Gulab Singh for arranging her Karewa with the latter. Basant Singh had agreed to pay the share of Inder Singh and Narain Singh (accused in the case) out of Rs. 1200/-, but he did not pay. A certified copy of the statement of Smt. Surjit Kaur is Ex.PW12/E;
(v) In the written statement, it has not been pleaded that marriage of defendant No. I with the deceased was solemnised in accordance with the customary rights and ceremonies. In her statement on oath as D.W. 4 she did not state that the marriage was celebrated with customary ceremonies in due form. The attesting witnesses to the Karewa Nama, Ex. D-4, are D.W. 1 Ajaib Singh and D.W. 2 Mil Singh. D.W. 1 in answer to a leading question put by the counsel for the defendants whether the ceremony of gur-gar took place or the ceremony of Gurrar took place, stated thus;--
"Persons of brotherhood had assembled. This brotherhood was got assembled through a Marase. They had assembled at the house of Gulab Singh. Basant Singh was present on behalf of Surjeet Kaur. He was stated to be the brother of Surjeet Kaur. Basant Singh had handed over the Larr (one end of a head gear) of Surjeet Kaur to Gulab Singh in the presence of brotherhood. Gur was distributed. Thereafter, we had gone to our respective houses.
This is the only evidence regarding the solemnisation of the marriage of defendant No. 1 with Gulab Singh with customary rights and ceremonies.
(vi) It is undisputed that defendant No. 1 was a stranger to the deceased.
8. The Hindu Marriage Act, 1955 (Act 25 of 1955) (for brevity, the Act) applies to the marriages between spouses both of whom are Hindus. The expression 'Hindu' as defined in the Act includes within its ambit any person who is a Budhist, Jain, or Sikh by religion. The Act supersedes all existing laws, statutory and customary. However, this is subject to the express provision contained in the Act. When a particular branch of law is codified, its identity and the object essentially is that on any matter specially dealt with by that taw, it should be sought for in the codified enactment alone when any question arises relating to that matter. The Court is not at liberty to look at any other law. Hence, unless in any other enactment, there is a provision which abrogates any provision of the Act either expressly 'or by necessary implication, the provisions of the Act alone will be applicable to matters dealt with or covered by the same. S. 5 of the Act contains conditions for Hindu marriage. S. 7 of the Act contemplates ceremonies for marriage. A marriage will be valid only if the ceremony through which it is solemnised is sanctioned by the religion of either party as a customary ceremony. In Bhaurao Shankar Lokhande v. State of Maharashtra, AIR 1965 SC 1564, it was held thus:--
"S. 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied; (i) the marriage is solemnised after commencement of the Act, and (ii) at the date of such marriage, either party had a spouse living. The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and.in due form'."
9. The above principle was reiterated in Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614, wherein it was held thus (Para 6) :--
"This Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed. The evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed."
10. The evidence produced by defendant No. 1 does not prove that the essential ceremonies as enjoined by S. 7 of the Act were performed. For a valid marriage which alone can confer on the woman the status of wife, not only must the ceremonies under the personal law be gone through but the marriage should conform to the statutory requirements of S. 5. Reference can usefully be made to Shakuntla v. Nilkanath, 1973 Mah LJ 310 and a Single Bench decision rendered by this Court in Ravinder Kumar v. Kamal Kanta, (1976) 78 Pun LR 580, wherein it was held thus:--
"A bare perusal of clauses (a) and (b) of sub-section (1) of S. 2 of the Hindu Marriage Act makes it clear that the Sikh religion which permits the Anand Karaj form of marriage is treated by the Act as distinct from the religion which does not recognise as valid any marriage ceremony wherein the datta homam and saptapadi are not performed. It is true that S. 7 recognises all customary rites and ceremonies as sufficient for any 'Hindu' marriage to be legally valid but then it was not pleaded by the appellant although both the parties were Hindus by religion, either of them could be married according to custom in the Anand Karaj form which only the Sikhs normally recognise. The expression 'Hindu marriage' no doubt embraces all marriages to which either party is a Hindu, a Sikh, a Jaina or a Buddhist but then for such marriage to be valid, the tenets of each religion have to be kept in view so that a marriage would be valid only if the ceremony through which it is solemnised is sanctioned by the religion of either party as a customary ceremony."
11. In the insant case, there is no plea or proof that the marriage of defendant No. 1 with the deceased was solemnised with customary rights or ceremonies. Merely going through some ceremonies like distribution of Gur and Shakkar with the intention that the parties be taken to have been married will not make them the customary ceremonies prescribed by law or sanctioned by custom. Even in the general customary law in Punjab as applicable to the predominently agricultural tribes, the 'Karewa' marriage with the brother or some male relative of the deceased husband requires no religious ceremonies and confers all the rights of a valid marriage. Defendant No. 1 had no connection whatsoever with the deceased prior to the execution of the 'Karewa Nama', Exhibit D-4. The marriage with a stranger has to be performed in accordance with the customary rights or ceremonies as prescribed by law. There is no allegation, much less proof, as to what were the customary ceremonies performed for solemnizing the marriage between the deceased and defendant No. 1. (See Para 75 of Customary Law by Sir W, H. Rattigan, Fourteenth Edition).
12. Defendant No. 1 entered into a contract with the deceased as is apparent from 'Karewa Nama'. Exhibit D-4. According to this document, defendant No. 1 came to reside with the deceased as a wife after the death of her first husband Bishan Singh, which took place four years prior to the execution of the 'Karewa Nama' and with whom she had lived for ten years. Her statement before the criminal Court was to the effect that after the death of her husband Bishan Singh, she resided for seven years with Basant Singh as a sister and thereafter the latter brought the relationship with the deceased with the help of Inder Singh and Narain Singh. The documentary evidence does not prove her statement. Bishan Singh died on April 22,1964 as is evidenced by Ex. PW 12/D. Karewanama was executed on October 28, 1965 vide Ex. D-4. A close reading of these documents points out that within one and half year of the death of her first husband, defendant No. I entered into Karewa marriage. Her oral statement at the trial and in the criminal court, Ex, PW 12/E is inconsistent with the proved facts evidenced by Exhibits P.W. 12/D and D-4. In the statement before the Criminal Court she had stated that after the death of her first husband Bishan Singh, she resided for 7 years with Basant Singh as a sister and thereafter the latter brought about the alliance between her and the deceased for a consideration of Rs. 1200/-. It appears that she was in the habit of changing husbands frequently. Her alleged marriage with Bishan Singh does not inspire confidence since Bishan Singh had filed a case under S. 420, Indian Penal Code, against defendant No. 1, Basant Singh and her associates. The original record of the complaint is not available as it was stated by P.W. 2 that it was destroyed, but the extract from the Goshwara indicates that Bishan Singh had filed a complaint under S. 420, Indian Penal Code, against Basant Singh, defendant No. 1 and others, although it ended in acquittal. Basant Singh appears to have brought about similar type of alliance for a consideration with Bishan Singh. Defendant No. 1 did not reside with him and this led to the filing of the complaint against her, Basant Singh and others, the result of which is indicated by Ex. P-2. She never intended to live as a wife with Bishan Singh. She was hand in gloves with Basant Singh who appears to have sold her to Bishan Singh for consideration and thereafter she withdrew from his society, started living with Basant Singh and lived with him for 7 years. Basant Singh then brought about this alliance with Gulaba deceased. The attending circumstances do not establish that defendant No. 1 ever came to reside with the deceased as a wife. There is no proof that her marriage with the deceased was solemnised as enjoined by the Act and there was ever any intention of defendant No. 1 to settle as a wife in the house of the deceased, more particularly when the alleged relationship was brought about for a consideration, which is unknown to Hindu law. The first appellate Court has proceeded with an assumption that the Karewanama brought about a valid marriage between defendant No. 1 and the deceased. The entire approach of the first appellate Court was in ignorance of the statutory provisions of the Act which undisputably is applicable to the parties. On the basis of the evidence on record it is not possible in law to hold that any marriage was solemnised between defendant No. 1 and the deceased according to the customary rights and ceremonies. She may have resided as a concubine with the deceased for a consideration, which appears to be in the same manner and circumstances as she did with her alleged husband Bishan Singh. The relationship, if any, between defendant No. 1 and the deceased was anything but marriage. Thus, the finding of the first appellate Court under issue No. 3 to the effect that defendant No. 1 is the wife of the deceased is reversed.
13. Thus, for the reasons aforementioned, there is no escape from the conclusion but to hold that defendant No. 1 is not the wife/widow of the deceased. She was not entitled to succeed to the estate of the deceased. The plaintiffs having proved themselves to be the nearest heirs of the deceased are entitled to succeed to the estate of the deceased. The finding under issue No. 3 having been set aside, the judgments and decrees of the Courts below are reversed. The appeal succeeds and the suit is decreed with costs. Counsel fee is assessed at Rs. 500/-.
14. Appeal allowed.