RSA No.1100 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM No.3278-C and CM No.3280-C of 2008 in RSA No.1100 of 2008 (O&M) Date of Decision: 4.9.2008 Ram Singh and others .....Appellants Vs. Choli Devi and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.S. Mamli, Advocate for the appellant. Mr. C.B. Goel, Advocate for the respondents. .... RAJIVE BHALLA, J CM No.3278-C of 2008 For the reasons stated in the application, the delay of 88 days in refiling the appeal is condoned. CM No.3280-C of 2008 For the reasons stated in the application, the delay of 86 days in filing the appeal is condoned. RSA No.1100 of 2008 By this judgement, I propose to dispose of RSA Nos.95 of 2008 and 1100 of 2008, as they involve identical facts and arise from the same suit. One Gian Chand, a government teacher passed away on 29.8.2000. A dispute has arisen between his heirs, as to the inheritance to his estate and ranged on opposite sides are his mother Parsi Devi (now RSA No.1100 of 2008 2 deceased) and his wife Choli Devi. Parsi Devi, filed a suit for declaration contesting the right of Choli Devi to receive family pension and other retiral benefits by alleging that Gian Chand had divorced Choli Devi by a customary divorce more than 15 years ago. Choli Devi, therefore, was not entitled to receive the family pension and other reitral benefits. It was also alleged that before his demise, Gian Chand executed a Will dated 5.5.2000 bequeathing his entire estate to her and to the specific exclusion of Choli Devi. In response, Choli Devi denied these assertions as false. She denied any customary divorce and reiterated her status as the wife of Gian Chand and denied the correctness of the alleged Will. After framing issues and appraising the evidence, the trial Court held that Parsi Devi had failed to prove the due execution of the Will, as it was shrouded by suspicious circumstances. The plea of customary divorce was also negatived. As regards retiral benefits, it was held that Choli Devi would be entitled to family pension, whereas the other benefits would be shared equally by Parsi Devi and Choli Devi, both class-I heirs. The suit was, therefore, partly decreed. Aggrieved by the judgement, both parties filed appeals. The first appellate Court dismissed both appeals by affirming the findings returned by the trial Court. Counsel for the appellants submits that the Courts below erred in rejecting the plea of customary divorce. The appellants have established by cogent and convincing evidence, a custom prevalent amongst Gujjars that entitles them to obtain a customary divorce in the presence of community. In the absence of any evidence to rebut the evidence produced RSA No.1100 of 2008 3 to establish the custom and the divorce, both the trial Court and the first appellate Court erred while rejecting the customary divorce. It is further argued that PW-2 and PW-6, the attesting witnesses have proved the Will. The Will was rejected because PW-2 admitted that Parsi Devi was present during its execution and the wife had been disinherited. It is argued that these facts by themselves were insufficient to discard the Will. It is further submitted that the handwriting expert's report that the signatures on the Will do not match the admitted signatures of the deceased was prepared on the basis of photostat copies and should, therefore, have been rejected. The nomination in the N.S.C. Certificates bears the word “Choli” but does not bear the signatures of Gian Chand or his parentage. Furthermore, Choli is not described as Gian Chand's wife. It is, therefore, prayed that the impugned judgements be set aside. Counsel for the respondents, on the other hand, submits that the appellants failed to establish, the custom as pleaded. Apart from a few witnesses, who deposed as to the existence of such a custom, no particulars of the custom are forthcoming. The alleged customary divorce was rightly rejected as the nature and particulars of the alleged customary divorce were not brought before the Court. The Will was rightly discarded as suspicious. It is submitted that a poor widow is being deprived of her due share of her husband's retiral benefits. I have heard learned counsel for the parties and upon due consideration of the arguments addressed am satisfied that the impugned judgements do not suffer from any legal infirmity, as would raise a substantial question of law. Both the trial Court and the first appellate Court have recorded RSA No.1100 of 2008 4 concurrent findings of fact discarding the Will and negativing the plea of a customary divorce. The dispute in these appeals arises from a mother-in- law Parsi Devi, alleging that her son obtained a customary divorce from his wife Choli Devi and before his demise, executed a Will dated 5.5.2000, in her favour. The daughter-in-law Choli Devi denies these facts. Both the trial Court and the first appellate Court have rejected the plea of customary divorce and discarded the Will as a document shrouded by suspicious circumstances. With the enactment of the Hindu Marriage Act (hereinafter referred to as `the Act'), matrimony with its attendant, rights and obligations is governed by provisions of the Act. Section 29(2) of the Act enacts an exception that saves custom from the applicability of the Act but like all exception must be strictly established by clear and cogent pleadings and reliable evidence. Custom, therefore, must be proved and established as a fact. The instant case discloses a failure on the part of the appellants to establish, whether by pleadings or by cogent evidence, the nature and particulars of the custom. Apart from the deposition by a few interested witnesses, the appellants have failed to place on record any instance of a similar customary divorce. The appellants have failed to lead any evidence, as to the nature and the mode and manner of the divorce. As a result, the findings of fact, recorded by the Courts below negativing the custom and the alleged customary divorce do not call for interference. It would necessarily require reference that, as per the evidence adduced by the appellants, the divorce is alleged to have been granted in the year 1985, whereas on 12.11.1987, the deceased named Choli Devi as his nominee for the General Insurance Scheme. The National Saving RSA No.1100 of 2008 5 Certificates purchased by the deceased on 29.3.2000 record Choli Devi as a nominee. It is, therefore, apparent that the plea of a customary divorce was set up as a defence to defeat the rights of the widow. The Will Ex.P-1` dated 5.5.2000 is unregistered. The attesting witnesses were unable to depose as to the number of pages, the number of thumb impressions that were affixed, whether the Will was handwritten or a computer print out and whether a draft Will was prepared. The handwriting expert DW-6 submitted a report that the signatures of the testator appearing on the Will did not match the admitted signatures. The Will was apparently brought into existence, so as to prevent Choli Devi from inheriting other property owned by the deceased. This conclusion is fortified by the tenor of the Will, which contains factual inaccuracies as to the year of the divorce and various other facts,noticed by the Courts below, more particularly, that though the Will refers to a customary divorce, the National Saving Certificates, purchased by the deceased on 29.3.2000 bears the name of Choli Devi, as a nominee. Counsel for the appellants contends that the National Saving Certificates, merely contains the name Choli, with no reference to her status vis-a-vis the deceased. This argument, in my considered opinion, would not detract from the failure of the appellants to establish the due execution of the Will and to dispel all suspicious circumstances surrounding the execution of the Will. Another argument that the mere presence of a beneficiary or the propounder of a Will, would not by itself be sufficient to discard a Will though legally correct, but when considered in the light of the circumstances referred to herein above, is sufficient to discard the Will Ex.P-1. The concurrent findings of fact returned by the Courts below do not RSA No.1100 of 2008 6 call for interference. In view of what has been stated herein above, as the impugned judgements do not suffer from any error and no substantial question of law arises, the appeals are dismissed, with no order as to costs. 4.9.2008 (RAJIVE BHALLA) GS JUDGE