R.S.A. No. 2125 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2125 of 2009 (O&M) Date of decision: 22.05.2009 Kuldip Kaur ....appellant versus Amanpreet Singh and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. B.D. Sharma, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 10.4.2009 passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/appellant for joint possession of land measuring 59 kanals 6 marlas and half share of house situated in the revenue estate of Bhakna Khurd, Tehsil and District Amritsar, has been dismissed. The plaintiff/appellant filed a suit for joint possession on the pleadings that the suit property was owned by Bahadar Singh son of Wasawa Singh. On the death of Bahadar Singh, the land was inherited by his sons i.e Mohinder Singh, Arjan Singh, Inderjit Singh, Dalip Singh and Basant Kaur being his widow. Basant Kaur died and her share was inherited by Amanpreet Singh son of Mohinder Singh along with Arjan R.S.A. No. 2125 of 2009 (O&M) -2- Singh. Inderjit Singh son of Bahadar Singh also died and his share was inherited by his minor sons and daughters i.e. defendants No. 9 to 11 and his widow. Mohinder Singh son of Bahadar Singh was also said to have died on 5.2.1996 leaving behind plaintiff, his widow and defendant No. 1 as his son. It was claimed that Mohinder Singh died intestate, therefore, as per Hindu Succession Act, plaintiff and defendant No. 1 being heirs in Class I were entitled to inherit the property in equal shares, whereas defendant No. 1 in connivance with revenue authorities has got the mutation sanctioned in his favour. On notice, the suit was contested by defendants No. 1 and 2 by raising preliminary objections that the plaintiff got no locus standi to file the present suit. The suit was said to be bad for non-joinder of necessary parties and furthermore that the plaintiff was not entitled to discretionary relief as prayed, as he has suppressed and mis-represented the true facts from the Court. The suit was said to be barred by limitation. On merits, it was admitted that the suit land was owned by Mohinder Singh. However, it was pleaded that the description of the house given in the plaint was vague. It was the case of the defendant/respondents that Bahadar Singh deceased did not leave any house and that defendant No. 1 was living in the house which was acquired by Basant Kaur widow of Bahadar Singh through an agreement dated 14.8.1970 from Puran Singh son of Tehal Singh. The inheritance of Basant Kaur was inherited by defendant No. 1 on the basis of registered 'Will' dated 2.7.1998. Inheritance by Arjan Singh from Basant Kaur was denied. It was admitted that Mohinder Singh died on 5.2.1996. It was also admitted that the property left by Mohinder Singh R.S.A. No. 2125 of 2009 (O&M) -3- was inherited by defendant No. 1 being his son. The case was also set up that during the lifetime of Mohinder Singh, the plaintiff/appellant had divorced him vide divorce deed dated 17.12.1990, which was duly signed by Kuldip Kaur and Mohinder Singh in the presence of the respectables of the village. The case set up was that the plaintiff was not widow of Mohinder Singh, therefore, not entitled to claim any share in inheritance. It was admitted that Mohinder Singh had not executed any 'Will', therefore, defendant No. 1 being his only son was entitled to inheritance. The connivance of revenue authorities in sanctioning the mutation was denied. It was pleaded that as the plaintiff/appellant was not heard of for seven years after divorce and, therefore, was presumed to be dead, it was for that reason that she was claimed to be dead at the time of sanction of the mutation. It was denied that the mutation was illegal, null and void and not binding on the plaintiff/appellant. The factum of plaintiff/appellant being widow was also denied, in view of the divorce deed dated 17.12.1990. The learned trial Court decreed the suit primarily on the ground that the defendants had failed to prove the custom of divorce in the jats of Amritsar. In view of the rejection of divorce deed, the suit was decreed by treating the plaintiff/appellant to be widow of deceased Mohinder Singh. However, in appeal, the judgment and decree passed by the learned trial Court was ordered to be set aside by recording as under: - "Keeping in view the arguments advanced by both the counsel for the parties and from the pleadings, evidence and documents on record, I am of the opinion that it is admitted between the parties that suit land R.S.A. No. 2125 of 2009 (O&M) -4- mentioned in the head note of the plaint was originally the ownership of Bahadar Singh and after the death of Bahadar Singh the suit land has been inherited by his sons Mohinder Singh, Arjan Singh, Inderjit Singh and Dalip Singh and widow Basant Kaur. It is also admitted fact between the parties that Basant Kaur, widow of Bahadar Singh has also died and Basant Kaur has already executed a will in favour of appellant regarding her share in the suit property and the execution of the alleged will by Basant Kaur in favour of appellant is also admitted, hence, Amanpreet Singh has been held entitled for the share of Basant Kaur in the suit property. The disputed point between the parties is regarding the share of deceased Mohinder Singh i.e. son of Bahadar Singh. Mohinder Singh has not executed any will during his life time. Appellant Amanpreet Singh has claimed his inheritance on the basis of being only son and only legal heir, whereas respondent Kuldeep Kaur has claimed her share by claiming herself to be widow of deceased Mohinder Singh. Appellant has produced a divorce deed dated 17.12.1990 Ex. D2 on record which is duly signed by respondent Kuldeep Kaur in the presence of respectables and relatives. The respondent has contended that this deed cannot be considered as a valid divorce because Hindu Marriage Act was in force at that time whereas appellant has claimed the said dovorce as valid divorce according to the custom prevalent amongst Jatt Sikhs of District Amritsar. The appellant has relied upon AIR 1986, S.C. 142 Gurdit Singh Versus Mst. Angrej Kaur and others and AIR 1985 Delhi, 14 Balwinder Singh Versus Gurpal Kaur, and has duly shown that there is a custom of divorce amongst Jatt Sikhs in Amritsar R.S.A. No. 2125 of 2009 (O&M) -5- District, hence, the customary divorce in Jatt Sikhs is duly recognised amongst the Jatt Sikhs of District Amritsar. The appellant has established on record that there is existence of customary divorce amongst Jatt Sikhs of District Amritsar, and the deed alleged to be executed by Kuldeep Kaur on 17.12.1990 has been executed in the presence of respectables and relatives and it is duly corroborated by the subsequent circumstances because it is admitted between the parties that respondent Kuldeep Kaur has been residing separately at her parents house since the year of 1990, and Amanpreet Singh was minor at the time of alleged divorce deed and appellant Amanpreet Singh was residing with his father Mohinder Singh, deceased. So far as the signatures on the divorce deed dated 17.12.1990 are concerned, admittedly these signatures are of Kuldeep Kaur respondent. It is not the point of respondent that she has not signed the divorce deed dated 17.12.1990 but the point raised by learned counsel for the respondent before this court is that the deed dated 17.12.1990 cannot be deemed as a valid divorce because there is mention of separation only in the contents of said divorce deed and there is no mention of word "Talak". I have considered the submission made by the learned counsel for the respondent but I am of the view that the same is without merits because the said divorce deed dated 17.12.1990 Ex. D2 is required to be read as a whole and from the perusal of said divorce deed it is clear that terms and conditions were settled between the parties and both the parties were given liberty to remarry with a person according to their choice and it is also admitted that respondent Kuldeep Kaur was residing at her parents house separately from R.S.A. No. 2125 of 2009 (O&M) -6- Mohinder Singh. Even in para No. 7 of the plaint, respondent Kuldeep Kaur has pleaded that she is residing in her parents house and she was turned out from the matrimonial home by defendant No. 1 (deceased Mohinder Singh) which duly establishes the fact that relations of Kuldeep Kaur respondent with Mohinder Singh deceased were strained and they were not in a position to live together. Hence, it is only the deed of divorce which makes it clear that Kuldeep Kaur respondent was residing separately from her husband after the said customary divorce but the circumstances also prove the fact that there was divorce between the parties. Subsequent to the divorce deed respondent Kuldeep Kaur had never resided with Mohinder Singh or Amanpreet Kaur, her son nor the marriage between respondent Kuldeep Kaur and deceased Mohinder Singh was ever consumated due to which also it becomes clear that the divorce alleged to have taken place on 17.12.1990 was duly implemented by the parties in its terms and spirit and it has been mentioned in the said deed dated 17.12.1990 that parties are at liberty to marry with some other person if they want and the said deed is to be read as a whole. Hence, the learned lower court has not rightly appreciated the existence of customary divorce amongst the Jatt Sikhs at District Amritsar, and learned lower court has not rightly appreciated the divorce deed dated 17.12.1990 executed by the parties in presence of respectables and relatives. The appellant has proved that there is existence of customary divorce amongst Jatt Sikhs. The appellant has also proved that divorce deed was written between the parties in the presence of respectables and relatives and after that it was implemented according R.S.A. No. 2125 of 2009 (O&M) -7- to the terms and conditions mentioned in the said divorce deed. It is also admitted that there was not any kind of relationship of husband and wife between the parties during the life time of Mohinder Singh. Hence, respondent Kuldeep Kaur cannot claim any inheritance of deceased Mohinder Singh after his death when during the life time she was not living as his wife with deceased Mohinder Singh since 17.12.1990 i.e. after the execution of the divorce deed and if respondent Kuldeep Kaur has already obtained divorce in the presence of respectables and relatives, then she is stopped by her act and conduct to claim the right of inheritance of deceased Mohinder Singh. In these circumstances, respondent Kuldeep Kaur has not been able to prove how she is entitled for joint possession of the land measuring 59 kanals 7 marlas as described and detailed in the head note of the plaint and how she is entitled for partition of ½ share where she does not remain widow of deceased Mohinder Singh. Mutation of inheritance has already been sanctioned in favour of appellant Amanpreet Singh being the only son of deceased Mohinder Singh. In these circumstances, the findings given by the learned by the learned lower court on relevant issues are liable to be reversed and respondent Kuldeep Kaur has not been able to prove her locus standi to file the present suit and she has not been able to prover her legal right to claim the relief of joint possession and partition." Mr. B.D. Sharma, learned counsel appearing on behalf of the appellant, contends that the appeal raises the following substantial questions of law: - "1. Whether in the facts and circumstances of the R.S.A. No. 2125 of 2009 (O&M) -8- case, the findings recorded by the learned lower appellate Court in holding the Ex.D-2 to be validly executed divorce deed as per customary law, is perverse thus not sustainable in law? 2. Whether the learned lower appellate Court was justified in reversing the well-reasoned judgment of the learned trial Court?" In support of the substantial questions of law, the learned counsel for the appellant contends that the findings recorded by the learned lower appellate Court, in coming to the conclusion that there was a valid divorce deed, the Court has mis-read the judgment of the Hon'ble Delhi High Court in Balwinder Singh Versus Gurpal Kaur (supra), wheterin the Hon'ble Delhi High Court has been pleased to lay down as under: - "12. These observations manifestly show that the existence of a custom permitting dissolution of marriage by divorce amongst Hindu Jats does obtain in the districts surrounding Jullundur District. Admittedly District Amritsar adjoins District Jullundur. Similarly, districts Hoshiarpur and Ludhiana adjoin District Jullundur. No doubt, the appellant has not placed on record the Riwaj-i-am of any of these districts but their non-production would not warrant any adverse inference against him because from the foregoing observations of their Lordships it is manifest that such a custom does exist in the districts surrounding Jullundur which would naturally include District Amritsar. The learned Additional District Judge therefore, slipped into an error in drawing an adverse inference against the appellant on account of non-production of Riwaj-i-am of District Amritsar by him and in taking the view that the observations of the R.S.A. No. 2125 of 2009 (O&M) -9- Supreme Court did not specifically refer to District Amritsar and were too general in nature. It may, however, be pertinent to notice here some cases in which the prevalence of such a custom was judicially recognised. In Mst. Jassan Vs. Nihala 1884, Pun. Re. 78, it was held that among Bajwa Jats a custom of divorce exists and that after a divorce in writing the divorced wife can enter into a valid marriage. In Sunder v. Nihala 1889 Pun. Re. 84 the question was if similar custom obtained against Chimmah and Ghumman Jats of Sialkot. Their Lordships answered the question in affirmative. They inter alia, adverted to Mst. Jassan's case (supra) in this context. Both these authorities were subsequently followed by Harrison and Addison, JJ in Basant Singh v. Bhagwan Singh AIR 1933 Lah 755, which was also the case of Sialkot district. Their Lordships inter alia, observed that "Jats" notions of sexual morality are lax." The contention of the learned counsel for the appellant was that the Hon'ble Delhi High Court was dealing with the custom of Jalandhar, which has been wrongly applied in the case of the plaintiff/appellant, though admittedly parties were jats of Amritsar. The plea is totally mis-conceived. The learned lower appellate Court has rightly applied the law laid down by the Hon'ble Delhi High Court, as it has been specifically mentioned that the custom is applicable in Amritsar District also as it adjoins Jalandhar District. The learned counsel for the appellant thereafter placed reliance on the judgment of the Hon'ble Supreme Court in Gurdit Singh Vs. Mst. Angrej Kaur and others, AIR 1968 Supreme Court 142 to contend that the custom with regard to jats of Jalandhar District which could not be R.S.A. No. 2125 of 2009 (O&M) -10- automatically applied to the jats of Amritsar. The learned counsel for the appellant finally placed reliance on the judgment of the Hon'ble Delhi High Court in Tikka Shatrujit Singh Vs. Brig. Sukhjit Singh, 1992(2) Recent Revenue Reports 576 to contend that in order to succeed on the plea of custom, it was necessary to adduce evidence in proof of the custom. He referred to para 91 of the judgment referred to above, wherein the Hon'ble Delhi High Court has been pleased to lay down as under: - "91. So, in order to succeed that defendant No. 1 is holding the properties in question on the basis of rule of primogeniture with its incidence of impartibility it has to be established by cogent convincing evidence that by custom in the ruling family of Kapurthala State the rule of primogeniture has been followed. In my view, defendant No. 1 has failed to establish the existence of any such custom prevailing in the ruling family of Kapurthala. The Supreme Court in the case of Saraswathi Ammal v. Jagadambal and another, AIR 1953 SCR 939, has held as follows while expounding the law with regard to the ingredients to be proved for establishing a custom in the family: - "The learned counsel attempted to pursuade us to hold the custom pleaded proved by the assistance of decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undegraded ones. As already said, we cannot subscribe to the view that any such rule can be R.S.A. No. 2125 of 2009 (O&M) -11- evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a Dasi by marriage lose their right to inheritance and form a separate community. The correct approach to a case where a party seeks to prove custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussein Khan v. Soma Dero ILR 45 Cal. 450 (PC). It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies, and it is not any theory of custom of deductions from other custom which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by apriori methods. Theory and custom are anti-theses. Custom cannot be a matter of some theory, but always be a matter of fact and one custom be deduced from another. A community living in a particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following same custom." 92. The rule of primogeniture which was being enforced on the rulers of erstwhile Kapurthala State, firstly by the paramount British power and thereafter by the Indian Government would be deemed to have lapsed as soon as the erstwhile ruler became an ordinary citizen of this country subject to ordinary laws R.S.A. No. 2125 of 2009 (O&M) -12- of this country. It is only if any custom has been established that defendant No.1 could still consider himself to be governed by rule of primogeniture till the same came to be abolished by enforcement of Hindu Succession Act, 1956. The Privy Council also in Martand Rao v. Malhar Rao, AIR 1928 PC 10 at page 15 in column 2 observed that with regard to Kirnapur, it would appear that succession in many instances upto 1846 depended entirely on the Will of sovereign power. So was the case as far as ruler of Kapurthala State are concerned. So, it cannot be said that succession was taking place amongst the rulers of Kapurthala State on the basis of any customary law pertaining to rule of primogeniture." It was contended that the substantial questions of law be answered in favour of the appellant and the judgment and decree passed by the learned lower appellate Court be reversed and that of learned trial Court be restored. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. It cannot be disputed that in order to succeed on the plea of custom it is required to be pleaded and proved. In the case in hand, defendants pleaded the divorce by way of custom in the written statement filed and the deed of divorce duly signed by the plaintiff/appellant was proved on record. The plea of the plaintiff/appellant that the deed was, in fact, a deed of separation could not be accepted as the liberty was also granted to the parties to remarry. The learned lower appellate Court, therefore, rightly held that it was a decree of divorce and the custom of divorce by jats of Amritsar was duly recognised. Once there were pleadings and evidence by way of R.S.A. No. 2125 of 2009 (O&M) -13- documentary evidence, the learned lower appellate Court, therefore, did not commit any error in accepting the custom by following the settled law, referred to above. This Court in the case of Amar Singh Vs. Tej Ram and another, AIR 1982 Punjab and Haryana 282 has been pleased to lay down as under: - "12. The learned counsel for the plaintiff- respondent has sought to urge that in the absence of the pleading that a person who is above the age of 15 years and married could not be adopted, the evidence regarding the custom to the contrary could not be given. He has, however, argued that the general custom which has been recognised by the Courts becomes the law of the land and it is not necessary to prove it. According to him, in the Punjab, the general custom in the Jats is that a person who is above the age of 15 years and married can be adopted. 13. I find force in the contention of the learned counsel. It is well-settled that if the Courts have recognised the custom in a particular matter for a long time, that is considered to be the law and it is not necessary to prove it. The Courts can take judicial notice of such a custom. In the aforesaid view, I am fortified by the Supreme Court in Ujagar Singh V. Mst. Jeo, AIR 1959 SC 1041. The following observations may be read with advantage (at p. 1045): - "It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved. Under S. 57 of the Evidence Act, however, nothing need be proved of which courts can take judicial notice. Therefore it is said that if there is a custom of which the Courts can take judicial notice, it need not be proved. Now, the circumstances in which the courts can take R.S.A. No. 2125 of 2009 (O&M) -14- judicial notice of a custom were stated by Lord Dunedin in Raja Ram Rao v. Raja of Pittapur, 45 Ind App 148 at pp. 154, 155: (AIR 1918 PC 81 at p. 83), in the following words, "When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case". When a custom has been so recognised by the courts, it passes into the law of the land and the proof of it then becomes unnecessary u/s 57 (1) of the Evidence Act. It appears to us that in the courts in Punjab the expression "general custom" has really been used in this sense, namely, that a custom has by repeated recognition by courts, become entitled to judicial notice as was said in Bawa Singh v. Mt. Taro AIR 1951 Punj 239, and Sukhwant Kaur v. Balwant Singh, AIR 1951 Punj 242." Admittedly, the parties are Jats. It is well- recognised that the Jats in the State of Haryana, which was earlier a part of the erstwhile State of Punjab, are governed by