IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 273 of 2009 Date of Decision : September 9, 2009 Sh. Sohan Lal Appellant Versus Sh. Jagat Singh and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Neeraj Gupta, Advocate, for the appellant. For the respondents : Mr. C. N. Singh, Advocate for respondents No. 1 to 3. Sanjay Karol, J. (Oral) The original plaintiff has filed the present appeal assailing the concurrent findings of fact recorded by the Courts below. Plaintiff filed a suit for declaration with consequential relief of possession to the effect that the alienation of the suit property by Smt. Bhag Puri (original defendant No. 3) in favour of Sh. Jagat Singh and Smt. Radha Devi (original defendants No. 1 and 2) is contrary to the customs prevalent in the area as the widow had a limited right of ownership in the estate of her husband and as such was not 1 Whether reports of Local Papers may be allowed to see the judgment? 2 competent to alienate the suit land and therefore as per prevalent custom the property was to revert back to the plaintiff Sh. Sohan Lal and proforma defendants Sh. Amar Sukh, Sh. Pratap Chand and Sh. Sukh Dev. The trial Court dismissed Civil Suit No. 10-1 of 1999, titled as Sh. Sohan Lal versus Sh. Jagat Singh and others in terms of its judgment and decree dated 28.12.2006 which was further affirmed by the First Appellate Court in Civil Appeal No. 5 of 2007, titled as Sh. Sohan Lal versus Sh. Jagat Singh and others, decided on 31.3.2009. Both the Courts below have held that there was nothing on record to prove that the custom as documented in Wazib-ul-arj (Ext. AW 1/A) was without exception, uniformally applied in District Kinnaur of Himachal Pradesh and as such it could not be contended that the widow did not have an absolute right to alienate the property forming part of her husband’s estate. On the contrary, based on the evidence produced by defendants No. 1 to 3 the Court held that numerous instances were proved on record to establish that the customary law was not uniformally followed without interruption and could not have assumed the force of law. Plaintiff’s predecessor-in-interest namely Sh. Huri Sukh was real brother of Sh. Udham Sukh whose son Sh. Fagnu Ram predeceased his wife Smt. Bhag Puri, defendant No. 3. The suit property owned and possessed by Sh. Fagnu Ram was alienated by his widow Smt. Bhag Puri to defendants No. 1 and 2. The said sale 3 transaction was assailed by the plaintiff, on the strength of the customary law that the widow had limited right in the estate and as such the suit property was to revert to the reversioners of her husband for the reason that Smt. Bhag Puri had remarried. The suit was opposed by the defendants and more particularly defendant No. 3, pleading absolute ownership and right to alienate the suit property. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the sale deed dated 10.7.1996 executed by Smt. Bhag Puri in favour of the defendants No. 1 and 2 is null and void, as alleged? OPP 2. Whether the suit land was earlier held by Sh. Fagnu Ram deceased and after his death, the same was inherited by defendant No. 3 Smt. Bhag Puri vide mutation No. 41 dated 24.3.1996, as alleged? OPP 3. Whether Smt. Bhag Puri is limited owner of the suit land and as such, not entitled to alienate the same as per the custom of Kinnaur District? OPP 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the suit is within limitation? OPP 6. Whether the plaintiff is estopped from filing the present suit? OPD 7. Whether this suit is not properly valued for the purpose of court fee and jurisdiction? OPD 8. Relief” 4 Opportunity was afforded to the parties to lead evidence. The trial Court dismissed the suit on the ground that interest of Smt. Bhag Puri in the suit property was not limited and that she had absolute right to alienate the same. The First Appellate Court has noticed the following findings returned by the trial Court which are reproduced with affirmation: “The evidence on record clearly shows that this custom has not been uniformly followed in District Kinnaur by the inhabitants. The first instance is mutation No. 2129 dated 18.5.1955 of Tehsil Chini District Mahasu, Ext. DW-1/A and it shows that one Kamarmani of village Yula executed gift deed in favour of Laxman Singh of same village. Smt. Gian Devi gifted her share in the land in favour of Bodh Mandir Committee, Meeru vide registered deed dated 25.5.2000 mutation being Ext. DW-1/C. Then on death of Narkum Patti of up muhal Sariyo, Tehsil Kalpa, the property was inherited by her son Sanam Choppel, instead of reverting to the reversioners of last male holder as is evident from mutation dated 29.9.1998, Ext. D-2 on the death of Sanam Choppel aforesaid, the property was inherited by his daughter Kumari Kanya Devi vide mutation dated 28.8.1987 Ext. D-3 and she sold this land to Smt. Hirdesh Kumari vide sale deed dated 29.4.2004. This mutation was attested on 31.5.2004 as is evident from Ext. D-4. Further, Smt. Bhag Puri widow of Sanam, R/o Village Puje, Tehsil Nichar, gifted the land in favour of Fool Devi d/o Sh. Sagar Dass and property did not revert to the 5 reversioners as is evident from mutation dated 2.6.1994 Ext. D-5. Ext. DW-1/F is copy of sale deed 29.3.1984 executed by Smt. Bhagwan Dassi wd/o late Thakurjeet of Tehsil Nichar, in favour of Uma Patti w/o Sh. Jai Chand. Ext. DW-1/E is the copy of sale deed dated 9.11.1988 executed by one Uma Patti wd/o late Waggal, r/o village Katgaon, Distt. Kinnaur in favour of Mohinder Singh of same village.” The First Appellate Court has also observed that no evidence was brought on record by the plaintiff to controvert the documentary evidence being mutations Ext. DW1/A to Ext. DW1/E which evidently proved and established that in fact widows had been alienating immoveable properties in District Kinnaur. From the record the aforesaid position cannot be controverted. The First Appellate Court has also noticed the following passage from Mulla- Principles of Hindu Law. “A custom derives its force from the fact that it has, from long usage, obtained the force of law.” Mulla further observed: “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”. 6 Had the customary law, as documented in Wazib-ul-arj (Ext. AW 1/A) been uniformally applied without any exception, perhaps then it could have been contended that the land belonging to Sh. Fagnu Ram upon his death and remarriage of Smt. Bhagpuri, was to revert to the reversioners. This however is not the case in hand. The plaintiff has specifically pleaded their right on the basis of the Wazib-ul-arj but however in the written statement the defendant has categorically asserted her absolute right of ownership. It is true that the basis of the same have not been explained/elaborated in the written statement but however one cannot forget the fact that the Court below had specifically framed issues No. 2 and 3, and after affording opportunity to lead evidence had returned the findings with regard to the absolute right of Smt. Bhagpuri in the suit property. In my considered view, the Courts below have correctly appreciated the facts and the ratio of law laid down by this Court in Tej Ram and another versus Bharat Bushan and another, Latest HLJ 2006 (HP) 320 as in the said case there was no dispute about the fact that the parties were governed by the customary law in the matters of alienation of ancestral land which prohibited alienation by a widow. The customary law not being applicable, in the facts of the present case it cannot be said that the findings rendered by the courts below are erroneous, perverse or illegal in any manner. 7 Hence no substantial question of law arises for consideration and the present appeal is accordingly dismissed. CMP No. 470 of 2009 Disposed of. (Sanjay Karol), Judge. September 9, 2009 (PK)