Chanderpati vs Mauni (Dead) by Lrs.

N.K. Kapoor, J.—This judgment shall dispose of two regular second appeals bearing Nos. 387 and 388 of 1986, as these arise out of

judgment of Additional District Judge dated 30.11.1985. Facts have been taken from the regular second appeal No. 387 of 1986.

This is regular second appeal against the concurrent findings of the Courts below.

Plaintiff Mauji brought a suit for declaration that he and Smt. Sandokhi, daughter of Nanha are owners-in-possession of land measuring 138

kanals 14 marlas situated in village Kandela to the extent of l/4th share and entries in revenue record showing Smt. Chanderpati and Smt. Bharpai

in equal shares to be the owners are wrong and hence do not affect the ownership as well as possessory rights of the plaintiff. Plaintiff also sought a

restraint order against the contesting defendants from interfering in his possession in any manner. According to the case set up by the plaintiff, one

Chajju had four sons, namely, Phulla, Singha, Kirpa and Nanha. Phulla had one wife Parsam and two daughters, namely Chanderpali and Bharpai.

According to the plaintiff on the death of Phulla in the year 1942 Parsani contacted a karewa marriage with Nanha, brother of Phulla. Thus, having

contracted a karewa marriage with Nanha, Smt. Parsani as per custom prevalent in Jat community of Jind State forfeited her rights in property left

by Phulla and this way he and Nanha became owners in equal shares and are continuing since then. Smt. Parsani neither had nor has any concern

with that property. Plaintiff further averred that land left by Phulla was ancestral in his hands.

The contesting defendants in their written statement admitted karewa marriage of Smt. Parsani with Nanha after the death of Phulla. They further

pleaded special custom to be prevalent amongst Jats of village Kandela and as per this custom Smt. Parsani did not forfeit her right in the property

left behind by Phulla even on account of her karewa marriage with Nanha. In the alternative it was pleaded that she did not forfeit her rights and so

continues to be in possession of the property as owner thereof. It was further averred that it was self-acquired property of Phulla. Possession of

Nanha or of Sandokhi over the suit land at any stage was denied. In the alternative it was pleaded that in case Smt. Parsani is held to have lost her

rights in view of the special custom prevalent in the State of Jind, since she had remained in possession, the same has perfected into ownership,

being in her possession for more than 12 years and so on this account also suit merits dismissal.

On the pleadings of the parties, the following issues were framed:

(1) Whether plaintiff and defendant No. 4 are owners and in possession of the suit land ? OPP.

(2) Whether Smt. Parsani forfeited her right of inheritance in estate of Phulla by reason of contracting karewa with Nanha as alleged ? OPP.

(3) Whether the parties were not governed by Jind State Law at the relevant time, if so, its effect ? OPP.

(4) Whether defendants Nos. 1 and 2 are estopped from denying the factum of forfeiture as alleged by their own act and conduct ? OPP.

(5) Whether the suit land is ancestral qua the plaintiff, if so, its effect ? OPP.

(6) Whether plaintiff and Nanha formed a joint Hindu family with Phulla at the relevant time as alleged? OPP.

(7) Whether Smt. Parsani defendant has become owner by adverse possession as alleged in para 20 of the written statement ? OPD.

(8) Whether the parties are governed by custom, if so, what the custom was ? OPD.

(9) Relief.

The trial Court chose to examine issue Nos. 1 to 6 and 8 together on the ground that the same are inter connected. On considering the matter in

the light of evidence led, the Court came to the conclusion that plaintiff and defendant No. 3 are owners and in possession of the suit land and that

Smt. Parsani forfeited her right of inheritance for the reason of her contacted karewa marriage with Nanha. Court also held that the suit land is

ancestral property qua the plaintiff. Under issue No. 7, it was held that since the parties have remained joint and cultivating it so jointly the plea

raised by the contesting defendants that they have become owners by way of adverse possession is without substance. Resultantly the suit of the

plaintiff was decreed as prayed for.

Feeling dissatisfied with the judgment and decree of the trial Court two appeals were filed, one by Smt. Chanderpati and others and the other by

Rajni, widow of Singha. The lower appellate Court once again examined the matter in the light of evidence, oral as well as documentary, adduced

by the parties in support of their respective contentions. Before the lower appellate Court parties primarily contested the effect of karewa marriage

by Smt. Parsani with Nanha i.e. whether she forfeited her right to inheritance to the estate of Phulla or not; effect of special custom prevalent

amongst Jats of village Kandela of Jind State as well as the effect of Hindu Succession Act etc. The lower appellate Court after considering the

matter and taking support from the judgments of this Court came to the conclusion that Smt. Parsani forfeited her tight on her contacting karewa

marriage with Nanha and lost her right in the property of Phulla. According to the lower appellate Court even as per special custom, as prevalent in

the Jind State Smt. Parsani did not succeed to the estate of Phulla. Consequently, no such right existed with Smt. Parsani and so the benefit of

Section 14 Sub-clause 2 of the Hindu Succession Act could not be attracted to the facts of the case. Appeal was thus dismissed.

Seeking reversal of the concurrent findings recorded by the Courts below the learned counsel for the appellants has termed these to be wholly

un-warranted as per facts on record and otherwise too erroneous as being not in consonance with the view expressed by this Court in various

judicial pronouncements. Elaborating, the counsel argued that on the death of Phulla Smt. Parsani rightly succeeded to his estate which now on the

enforcement of the Hindu Succession Act vested in her unfettered rights and so the decree suffered by her in favour of Smt. Chanderpati and Smt.

Bharpai is legal. On the death of Phulla the property was mutated in favour of Smt. Parsani. Under this mutation she not only continued to be

recorded as owner in revenue record, but remained in cultivating possession of the same un-interruptedly and so this limited estate of widow

ripened into-full ownership on the coming into enforcement of the Hindu Succession Act. According to the learned counsel at no point of time the

contesting respondent took any step to get the mutation entries reversed or cared to take appropriate proceeding for dis-possessing her from the

suit property. So viewed from any angle the suit of the plaintiff in fact ought to have been dismissed. Counsel also took pains to explain the ratio of

the two full Bench judgment in Charan Singh Hamam Singh and Anr. v. Gurdial Singh Haman Singh and Anr. AIR 1961 P& H 289, in the context

of the point under scrutiny as well as made mention to few other judgments.

Counsel for the respondents on the other hand argued that the findings of the Courts below, essentially being findings of fact and not being

vitiated in any manner, in fact ought not to be a subject matter of re-consideration in a regular second appeal. In fact, the learned counsel for the

appellants has not been able to even prima-facie prove that any of the findings recorded by the Courts below is vitiated in any manner. On merit, it

was stated that as per decision of the Full Bench on contracting a karewa marriage a widow loses her rights in the property of the deceased

husband. Thus, Smt. Parsani forfeited her right sometime in the year 1944 and so the decree suffered by her in favour of the present appellants

neither binds the contesting respondent nor has any value in law. Smt. Parsani in her written statement in the suit filed by Smt. Chanderpati and

Anr. admitted that she lost her rights in the property of her previous husband Phulla, having contacted karewa marriage with Nanha. So, her

admission in the earlier suit clearly belies the assertions made by the present appellants. So, the appeal deserves to be dismissed with costs.

Matter in controversy lies within a narrow compass i.e. whether Smt. Parsani forfeited her right of inheritance to the estate of Phulla on account

of her marrying Nanha, younger brother of Phulla, sometime in the year 1944. Admittedly, the parties are governed by custom. Under custom in

the absence of male lineal descendant the widow of the deceased ordinarily succeeds to a life estate. The circumstance that the husband was joint

in estate with others does not ordinarily deprive the widow of her right to succeed to his share. Widow derives this right on account of her marriage

i.e. she is deemed to be her husband''s representative. This right has been given to her perhaps on account of her right to maintenance. As per ''A

Digest of Customary Law in the Punjab by Sir W.H. Rattigan, para 32 ''In the absence of custom, the remarriage of a widow causes a forfeiture of

her life interest in her first husband''s estate, which then reverts to the nearest heir of the husband'' and para 33, but in the absence of a custom to

the contrary her remarriage, even with a stranger, will not deprive the widow of any future rights of inheritance to which she would have been

entitled but for such remarriage. On a cumulative reading of the aforesaid two paragraphs from the digest on customary law it can be stated that a

widow on remarriage ceases to be the widow of her late husband and becomes the wife of the man she has married. She thus forfeits her right

which is really one of maintenance from the income of the deceased''s property. The precise point has been exhaustively examined by the Full

Bench of this Court in Sada Kaur''s case (supra), wherein it has been held that there is no universal custom amongst the Jats of Punjab by which a

widow does not forfeit her life estate in her husband''s property by reason of her re-marriage with her husband''s brother.

To the similar effect is the decision of this Court in Smt. Ji Kaur etc. v. Smt. Bullan etc 1973 C.L.J. 734.

The aforesaid two judgements are fully applicable to the point under consideration. Reasoning advanced by the learned counsel for the

appellants that since the Court was examining the case relating to a family of Dhaliwal Jats of Muktsar (District Ferozepur) the judgment deserve to

be construed customed as per facts of that case does not appeal to reason. According to counsel, amongst Jats of village Kandela, there are

numerous instances when widows on re-marrying have retained the property of their previous husband. The Courts below examined that aspect as

well. Plaintiff has placed on record copies of mutations (Exhibit P-8 to P-17) - the instances regarding forfeiture of right of a widow on entering

into a kerawa marriage. Similarly, defendant No. 2 has placed on record few instances exhibits D-l to D-4 and the Courts on carefully examining

these documents have found this plea devoid of any merit and rightly so. The plaintiff with a view to rebut the assertion made by the defendants

placed reliance on a circular No. 19 of Jind State. As per Clause (5) of circular No. 19 the daughters or the collaterals have no right to the

property during the life time of widow or till the widow''s re-marriage. Thus, as per the law prevalent in the Princely State of Jind (as in the year

1942) widows forfeit their right in the estate of deceased husband on her re-entering a kerawa marriage. In fact, even the present appellants,

namely, Smt. Chanderpati and Smt. Bharpai in civil Suit No. 158 of 28.7.1978 specifically made averment of the effect that their mother on

contacting a kerawa marriage with Nanha forfeited her life estate to the extent of share of Phulla. Thus, the appellant''s own admission in fact

supports the plea raised by the plaintiff. The Courts below kept this also in view while holding that Smt. Parsani forfeited her right in the property

left by Phulla on her re-marrying with Nanha. Since she had no right in the property, the decree suffered by her in favour of Smt. Chanderpati and

Smt. Bharpai has rightly been held to be wholly in consequential and not binding upon the rights of the plaintiff. These appeals are thus devoid of

substance and consequently dismissed.

No orders as to costs.