RSA No. 1889 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1889 of 1998 Date of Decision: 5.04.2010 Smt.Phuli Devi & Ors. ..Appellants Vs. Nihalu & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Rameshwar Malik Advocate, for the appellants. Mr.H.S.Hooda, Sr. Advocate, with Mr.S.K.Hooda, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RSA No. 1889 of 1998 2 Vinod K.Sharma,J. (Oral) This regular second appeal by the plaintiff/appellant, is directed against the judgment and decree dated 28.11.1997, passed by the learned courts below, vide which suit filed by the plaintiff/appellant for declaration and possession with consequential relief of permanent injunction stands dismissed. Brief facts leading to the filing of the case were, that late Nathu was common ancestor of the parties to the suit. He had three sons named Abhe plaintiff, Nihalu and Tek Ram. Tek Ram left behind his widow Smt. Sarjo. Suit was filed by Abhe Ram against Nihalu and Smt.Sarjo. Nathu was owner of the agricultural land, which was inherited by his three sons in equal shares. The share of Tek Ram was inherited by Sarjo, as he had died issueless. The case of the plaintiff/appellant was, that Smt.Sarjo contracted Kareva marriage with the real brother of her late husband Nihalu defendant No.1. Out of this wedlock seven children were born. Two of them were male. The land in dispute in the hands of late Nathu qua his sons i.e. Abhe Ram, Nihalu and Tek Ram, was said to be ancestral. It was also the case of the plaintiff, that the parties being Jat by caste were governed by the custom prevalent in district Rohtak regarding inheritance, regarding widow right to succession and forfeiture of estate on widow's unchastity or right to estate, prior to coming into force of the Hindu Succession Act (hereinafter referred to as the Act). The case of the plaintiff/appellant, was that as Smt. Sarjo had remarried before coming into force of the Act. Abhe Ram and Nihalu, therefore, became entitled to RSA No. 1889 of 1998 3 succeed in equal share to the property left by their brother late Tek Ram. The property was managed by defendant No.1, as Karta of the family. Suit was filed by the plaintiff to claim his share, in the property left by Tek Ram. Suit was contested, wherein it was pleaded that the suit was filed by the plaintiff in collusion with Smt.Dhao and the children begotten to her from the loins of defendant No.1. It was the case of defendant No.1 that he had earlier executed a Will in favour of Pawan Kumar, Nawal Singh and Smt.Salochana on 13.7.1990. These children were sired by him from womb of defendant No.2. Plea of limitation was also raised. It was also pleaded, that the parties had arrived at a mutual agreement in the year 1970, and mutation No.843 was sanctioned, to give final effect to the settlement. Since then the parties were cultivating their respective shares, as rightful owners. Smt.Sarjo was the absolute owner of the land fallen to her share, on the death of Tek Ram. She was in actual physical possession of the land, since the date of death of Tek Ram, without obstruction from any quarter. Her possession was continuous, and hostile against all others. It was also pleaded by defendant No.1 that Tek Ram was murdered on October 2, 1953. Jua Lal, Surat Singh, Kure and Chatru were challaned in the case. Though, they were convicted by the learned trial court but in appeal were acquitted by the High Court. Subsequently relation of one of the accused was murdered in which Abhe Ram and Nihalu defendant No.1, were challaned along with 2 other persons, but they were acquitted by the court in the year 1955. RSA No. 1889 of 1998 4 It was, therefore, pleaded that there was no question of Karewa marriage between the day of murder and acquittal of Nihalu in the year 1955. It was asserted that Smt. Sarjo had joined the society of defendant Nihalu in the month of April, 1957 and first child was born to them in 1959. Stand taken by Smt. Sarjo defendant No.2, was that Abhe Ram and Nihalu had partitioned land in the year 1970 and mutation was duly sanctioned. All the parties were said to be in exclusive possession of their respective shares since then. Suit was said to be hopelessly barred by time. It was the case of defendant No.2, that she inherited the property of Tek Ram in the year 1953, as his sole surviving heir. She denied that she contracted Karewa marriage with Nihalu, within few months of the murder of Tek Ram. It was pleaded that Nihalu defendant was arrested in a murder case soon thereafter, and there was no occasion for them to enter into karewa marriage. She denied the pleaded prevailing custom, amongst Jat community of district Rohtak. She asserted to be governed by the Act. Pleas of limitation, maintainability, estoppel and adverse possession were also raised. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the suit land was ancestral in nature in the hands of Tek Ram deceased? OPP 2. Whether the parties are governed by custom that if a widow contracts a second marriage after the death of her husband or leads an unchaste life after his death, then she RSA No. 1889 of 1998 5 will forfeit the rights in the estate of her earlier husband before coming into force of the Hindu Succession Act, 1956? OPP 3. Whether Smt.Sarjo contracted Kareva marriage after the death of her husband Tek Ram with Nihalu defendant No.1, if so when and to what effect? OPP 4. Whether the suit land was mutually partitioned in the year 1970 and the said partition is binding upon the parties including the plaintiffs, if so to what effect? OPD 4-A whether the present suit has been filed in collusion with Smt.Dhao and her children, if so its effect? OPD 4-B Whether the present suit is the outcome of a Will executed by Nihalu dated 13.7.1990, if so, what effect? OPD 5. Whether the suit is time barred? OPD 6. Whether the defendant Smt.Sarjo had become owner of the suit land by way of adverse possession? OPD 7. Whether the suit is not properly valaued for the purpose of court fees? OPD 8. Whether the suit is not maintainable in its present form? OPD 9. Whether the plaintiffs are stopped from filing the present suit by their own acts and conduct? OPD RSA No. 1889 of 1998 6 10. Relief. On appreciation of evidence, the learned trial court decided issue No.1, in favour of the plaintiff/appellant, by holding that the suit land was ancestral in the hands of Nathu deceased. Parties were held to be governed by customs, prior to coming into force of the Act, under which the widow on contracting second marriage, after the death of her husband or leading an unchastity life resulted in forfeiture of right to estate of her husband. Findings on issues No.1 and 2 were not challenged and were affirmed by learned appellate court. On issue No.3, learned trial court, recorded a finding that though Smt.Sarjo had contracted Karewa marriage, after the death of her husband, but it was after coming into force of the Act which did not result, in forfeiture of right to estate of inheritance. On issue No.4, learned courts below recorded a concurrent finding of fact, that the suit land was mutually partitioned in the year 1970 and the partition was binding on the parties, including the plaintiffs. Learned trial court held that as a result thereof, Smt.Sarjo perfected her title, even by way of adverse possession. On issues No.4-A, learned trial court held that the suit was filed by the plaintiff, in collusion with Smt.Dhao and her children, because they were annoyed with the execution of Will by defendant No.1, in favour of 2 sons and daughter who were born out of wedlock of Nihalu and RSA No. 1889 of 1998 7 Smt.Sarjo On issue No.5, it was held that the suit was barred by limitation. On issue No.6, it was held that Smt.Sarjo had perfected her title, to the land as absolute owner by way of of adverse possession. Suit was held to be properly valued for the purposes of court fee and jurisdiction. Suit was held to be maintainable. On issue No.9, it was held that the plaintiff was not estopped from filing the suit. In view of the findings referred to above, suit filed by the appellant/plaintiff was dismissed. As already observed above, finding on issues No.1 and 2 were not challenged whereas, on other issues, learned lower appellate court affirmed the findings of the learned trial court and dismissed the appeal. Mr.Rameshwar Malik, learned counsel appearing on behalf of the appellant, contended, that appeal raises the following substantial questions of law, for consideration by this court:- 1. Whether the judgment and decree passed by the learned courts below, is the outcome of misinterpretation of the customary law and the provisions of Hindu Widow's Re- marriage Act, 1856? 2. Whether the judgment and decree passed by the learned lower appellate court, is liable to be set aside, as the learned lower appellate court failed to record finding on all the issues? 3. Whether the judgment and decree, passed by the learned courts below, is the outcome of misreading of evidence, RSA No. 1889 of 1998 8 therefore, perverse? In support of the substantial questions of law, learned counsel for the appellants contended, that Smt. Sarjo had forfeited her right to inherit the property left by Tek Ram on performance of Kareva marriage with defendant No.1 i.e. the real brother of deceased Tek Ram. To support this argument, learned counsel for the appellant referred to Section 2 of the Hindu Widow's Re-marriage Act,1856 which reads as under:- “2. Right of widow in deceased husband's property to cease on her remarriage. All rights and interests which any widow may have in her deceased husband's property byway 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 intrust 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.” It was also the contention of the learned counsel for the appellant, that even otherwise, according to custom which governs the RSA No. 1889 of 1998 9 inheritance and succession of Jats of Rohtak, Smt.Sarjo had lost the right to inherit property on performing of karewa marriage before coming into force of the Act. In support of the contention, learned counsel for the appellant, placed reliance on the judgment of Hon'ble Lahore High Court in the case of Mt.Parji Vs. Mangta AIR 1930 Lahore 1023, wherein it was held that remarriage resulted to divest widow's of all rights of inheritance in her husband's property, unless special custom to the contrary was proved. In the absence of special custom, the provisions of the Hindu Widow's Re- marriage Act, 1856 Act would be applicable. Reliance was also placed on the judgment of this court in the case of Smt.Ji Kaur etc. Vs. Smt.Bhullan etc. 1973 Current Law Journal 734, wherein in view of Para No.32 of Rattigan's Digest, it was held that by remarriage a widow loses her right to limited estate in her deceased husband's property. Reliance was placed on the judgment of this court in the case of Chanderpati Vs. Mauni (Dead) By LRs 1996 (2) Latest Judicial Reports 658, wherein it was held, that wife on solemnizing Kareva form of marriage with younger brother of deceased husband in Jats of Jind, forfeits the right in the property of her deceased husband. Learned counsel for the appellant also placed reliance on the judgment of Hon'ble Supreme Court in the case of Velamuri Venkata Sivaprasad (dead) by LRs. Vs. Kothuri Venkateswarlu (dead) by LRs. 2000 (1) RCR (Civil) 483, to contend that provisions of Section 14 (1) of the Hindu Succession Act were prospective in nature. RSA No. 1889 of 1998 10 Finally, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Smt.Ass Kaur (Deceased) by L.Rs Vs. Kartar Singh (Dead) by L.Rs. & Ors. 2007 (3) RCR (Civil) 369, to contend, that as and when custom which has repeatedly been recognized by the courts, it need not be proved. The contention of the learned counsel for the appellant, was that first substantial question of law be answered in favour of the appellant, and against the respondents, and the judgment and decree passed by the learned courts below be set aside. On consideration of matter, I find no force in the contention raised by the learned counsel for the appellant. The Hon'ble Lahore High Court in the case of Mt.Parji Vs. Mangta (supra), on which reliance was placed by the learned counsel for the appellant, has laid down, that the provisions of Hindu Widow's Re- marriage Act, 1856 have no application if special custom to the contrary is proved. According to Rattigan's Digest of customary law, whereas the Jats are governed by custom in the matter of succession, the widow by remarrying her deceased husband's brother, does not lose her right to succession to collateral in her husband's family, as the representative of deceased husband. Relevant part of Para No.32 of Rattigan's Digest reads as under:- “........Amongst certain tribes a re-marriage in the Karewa form with the brother of the deceased husband does not cause a RSA No. 1889 of 1998 11 forfeiture of the widow's life estate in the property of her first husband;C.A. No.1211 of 1876; No.137 P.R.1883 and No.88 P.R. 1900 (Sikh Jats of Sirsa); No.100 P.R.1891 (Rains of Sirsa); No.74 P.R. 1893 (Hinjra Jats of Amrtisar) C.A.No.42 of 1897; No.115 P.R. 1900 (Sikh Jats of Ferozepore); No.51 P.R.1911 (Sikh Jats of Ludhiana District); No.322 OLR 1913 (Sainis of Hoshiarpur).Compare also N.W.P.H.C. Reps. for 1868, page 350, Weekly Notes, N.W.P., 29th January, 1883, page 17. By Custom among the Sikh Jats of the Punjab a widow does not forfeit her life estate in her deceased husband's property by reason of her re-marriage in Karewa from with her husband's brother, whether he be the sole surviving brother or there are other brothers as well of the deceased 1923, 76 Ind. Cas. 408 (Sindh). It has been held in Charan Singh Vs. Gurdial Singh (AIR 1961 Pb. 301 (F.B.); ILR 1961 2 Pb. 340 that in case of Jats governed by custom in matters of succession, a widow by re-marrying her deceased husband's brother does not lose her right to collateral succession in her husband's family as the representative of her deceased husband, see also 1959, PLR 163. the Hindu Widows' Re-marriage Act 1856, does not override the custom under which a widow in the Punjab by marrying her deceased husband's brother(in the Karewa form) does not forfeit her right of the estate of her deceased husband; 1923, 7 Ind. Cas. 408 (Sind); 1959 PLR 163; AIR 1961 Pb.301 RSA No. 1889 of 1998 12 (F.B.)..........” This finding has been recorded to controvert the contentions raised by the learned counsel for the appellant, though this does not arise for consideration, in the case in hand, as concurrent finding of fact recorded on appreciation of evidence is that Karewa marriage was performed, by defendant No.2 with defendant No.1, after coming into force of the Hindu Succession Act, when the parties were no longer governed by the customary law, but by Hindu Succession Act, under which defendant No.2, acquired ownership right in the property of her husband Tek Ram as an absolute owner. This finding of fact was challenged by the learned counsel for the appellant, by referring to the statement of PW 9, a close collateral and PW 13, to contend that Karewa marriage was performed after six months of the death of Tek Ram, but this was rightly disbelieved for the reasons, that immediately after the death of Tek Ram, defendant No.1, was involved in a murder case and was in jail. The first child out of marriage was born in 1959. The learned courts below, rightly came to the conclusion that Karewa marriage was performed sometime in the year 1957 i.e. after coming into force of the Hindu Succession Act. This finding of fact cannot be said to be perverse or outcome of misreading of evidence. For the reasons stated, the first substantial question of law is answered against the appellant, and it is held that finding recorded by the learned courts below is neither the outcome of misreading the provisions of of Hindu Widow's Remarriage Act, 1856 nor it is contrary to custom, as the RSA No. 1889 of 1998 13 parties were governed by Hindu Succession Act. On the second substantial question of law, learned counsel for the appellant, contended that the judgment and decree passed by the learned lower appellate court is liable to be set aside, as the learned appellate court failed to record separate findings, on all the issues and committed an illegality. In support of this contention, learned counsel for the appellant placed reliance on the judgment of this court in the case of Mehla Vs. Sita and other 2001 (1) PLJ 85, wherein this court laid down, that in view of the provisions of Order 41 Rule 31, read with Section 96 and 2 (9) of the Code of Civil Procedure Code, the first appellate court is under a statutory duty, to deal with all the issues and give its own finding either confirming or reversing the finding of the court. The reliance was also placed on the judgment of this court in the case of Kurdia Vs. Rameshwar Dass and Ors. 2009 (3) RCR (Civil) 672, in support of this contention. This contention of the learned counsel for the appellant also deserves to be noticed to be rejected. Reading of the judgment and decree passed by the learned lower appellate court shows that the learned lower appellate court independently assessed the evidence, and thereafter agreed with the finding of the learned trial court. At the very outset, learned lower appellate court affirmed the finding on issues No.1 and 2 and thereafter has recorded, that the plaintiff/appellant challenged the judgment and decree only on issues No. RSA No. 1889 of 1998 14 3, 4, 4-A and 4-B. The findings on these issues by the learned trial court, were affirmed, after considering the contentions and the evidence led on the point. The judgments relied upon by the learned counsel for the appellant, therefore, have no application to the facts of the case. Even otherwise, when the learned appellate court has affirmed the findings of the learned trial court, it does not have to record the same findings once again. The learned lower appellate court was only required to meet the contentions, raised by the appellants to challenge the findings and in case it did not agree with the contentions, learned appellate court can always affirm the findings of the learned trial court on the particular issues. The findings recorded, thus, would meet the requirements of law laid down by this court in the cases of Mehla Vs. Sita and other & Kurdia Vs. Rameshwar Dass and Ors. (Supra). Second substantial question of law is, therefore, answered against the appellants. On the third substantial question of law, learned counsel for the appellants contended, that the judgment and decree passed by the learned courts below, is the outcome of misreading of evidence, therefore, perverse. In support of this contention, as already observed above, learned counsel for the appellants referred to the statement of some of the witnesses who had deposed that Karewa marriage was performed immediately, after the marriage. It is pertinent to mention here that the evidence led by the appellants was rightly rejected as they were either incapable or not in a RSA No. 1889 of 1998 15 position to depose, about the Karewa marriage because of the age. The other evidence on this point was rightly rejected, as it was found to be motivated. The detailed reasons for rejection of that evidence were recorded. The finding of fact was recorded by the learned courts, after appreciating the evidence led by the plaintiff and the respondents. The contention of the learned counsel for the appellants, therefore, cannot be accepted, that the finding of fact recorded by the learned courts below is the outcome of misreading of evidence or perverse. The contention of the learned counsel for the appellants, that finding is the outcome of misreading of evidence, for the reasons that ownership of the appellants, stood admitted by raising a plea of adverse possession, cannot be sustained and was rightly rejected. Learned lower appellate court has rightly held, that the plea of adverse possession was an alternative plea, whereas the plea raised was, that the respondent was in possession of the property by way of inheritance from her husband. The learned courts below recorded a finding of fact, that possession in view of admitted position that the defendant No.2 was since 1970 when the property was partitioned and entered in revenue record, therefore, she had perfected her title by way of adverse possession. This finding again cannot be said to be outcome of misreading of evidence nor perverse. For the reasons stated above, third substantial question of law RSA No. 1889 of 1998 16 is also answered against the appellant. For the reasons recorded, the regular second appeal is dismissed, but with no order as to costs. (Vinod K.Sharma) 5.04.2010 Judge rp