Ghuray vs Mst. Romali

A.D. Koshal, J.—The following pedigree-table will be of assistance in appreciating the facts involved in this second appeal:

Sulhar was the first husband of Smt. Romali and had a daughter Smt. Harbhaji from her. Shiban respondent No. 2 is Smt. Harbhaji''s husband. About five years after the death of Sulhar, Smt. Romali married his brother Ram Phol and gave birth to his daughter Smt. Kasturi. The land in dispute which is situated in two villages named Johar Khera and Mandkola, as detailed in paragraph 3 of the plaint, came to Smt. Romali as an heir to her second husband Ram Phul.

The appellant brought a suit for possession of the land in dispute on the ground that Ram Phul''s brother Gunga had not been heard of for more than 7 years, that Smt. Romali had remarried the appellant himself and had forfeited the widow''s estate which she inherited from Ram Phul and that the appellant was, therefore, entitled to succeed thereto.

The suit was resisted by Smt. Romali who pleaded that the appellant had renounced the word 40 years earlier, that he had become a faqir and was living in a temple and that consequently he was civilly dead. It was also averred by her that her daughters from her deceased husbands were alive and were preferential heirs and that, therefore, the appellant could not succeed in their presence. She denied that she had remarried the appellant. The suit was said to be time-barred and the allegation the Ganga had not been heard of for more than 7 years was also introverted

The parties went to trail on the following issues:

Whether the plaintiff has a locus standi to sue ?

2 Whether the suit is within time ?

5 Whether Gunga is dead or unheard of for the last 7 years ?

If issue No. 3 is not proved, is the suit maintainable ?

Whether the plaintiff is civilly dead and, therefore, not entitled to bring the present suit ?

6 Whether defendant No 1 has forfeited her rights by having ntered into karewa ?

To what relief is the plaintiff entitled ?

Shri H. S. Ahluwalia, Subordinate Judge 3rd Class, Palwal, who decided the suit by his judgment dated the 29th of March. 1958, held that Ganga had not been heard of for more than 7 years and that, therefore, he was presumed to be dead u/s 108 of the Evidence Act. This is how issue No. 3 was decided. On issue No. 6 the finding was that Smt. Romali respondent had remarried the appellant and had on that account forfeited the estate which she inherited as Ram Phul''s widow. Issues Nos. 1 and 2 were also decided in favour of the appellant and issue No. 5 against Smt. Romali respondent while issue No. 4 was held not to arise. The suit was accordingly decreed.

Smt. Romali took an appeal to the District Court, Gurgaon, and the same was decided by Shri P.N Thukral, District Judge, on the 13th of January, 1959. Shri Thukral held that the alleged remarriage of Smt Romali to the appellant was not proved although it was established that she had given birth to a daughter from the loins of the appellant. In this connection an assertion by Smt. Romali that the daughter had resulted from her rape by the appellant was turned down, it being held that the daughter was illegitimate. The finding of the trial Court on issue No 6 was, therefore, reversed. On issues Nos. 1, 2, 3 and 5, however, Shri Thukral concurred with the trial Court. Shri Thukral also remarked that the trial Court had acted unfairly in giving a finding that the land in suit was proved to be ancestral qua the appellant without having framed any issue in respect thereof. He however, did not remand the case for a retrial in view of his decision that the alleged remarriage did not stand proved. Accordingly, the appeal was accepted and the appellant''s suit was dismissed, the parties being left to bear their own costs.

It is against the decree passed by the learned District Judge that the plaintiff has come up in appeal to this Court.

The first point raised by learned counsel for the appeal ant is that from document Exhibit P. 1 which was a copy of an entry in the register of births stating that Smt. Romali had given birth on the 1st of March, 1945, to a daughter whose father''s name was shown therein as Ghuray, the remarriage in question was proved and that the lower appellate Court had seriously erred in law in not taking that document into consideration. The contents of that document no doubt are as claimed but then it is not a fact that the learned District Judge did not take them into consideration. On the other hand, this is what he remarked in connection therewith :

As regards the entry of the name of the plaintiff as the father of the girl, the chowkidar at whose instance this name was recorded has not been produced and it is not possible to ascertain under what circumstances the name of the plaintiff came to be recorded. Smt. Romali also does not deny that a daughter was born to her from the plaintiff but the explanation of Smt. Romali is that the plaintiff committed rape on her It is just possible that the charge of rape is an exaggerated one and Smt. Romali might have submitted to sexual inter-course voluntarily. It would only mean that the daughter was illegitimate.

It cannot be said that this approach of the learned District Judge was erroneous in view of the other evidence which was produced at the trial and which he took into consideration and fully discussed in his judgment. In this view of the matter his finding that the remarriage was not proved is not open to challenge at this stage being a finding of fact not vitiated by mis appreciation or misinterpretation of evidence.

The main contention of the learned counsel for the appellant is that Smt. Romali had in any case been shown to he leading a life of unchastity.and that she forfeited her widow''s estate on that account under a custom governing the parties who admittedly belong to the Jat tribe. No such custom, however, was ever alleged by the appellant and the contention is liable to be turned down on that score alone. I will nevertheless state that such a custom is not proved by the entries in the riwaj-i-am contained in Wilson''s "Codes of Tribal Custom of Twenty-One Tribes" prepared in 1882 for Gurgaon District on which reliance is placed by learned counsel for the appellant in support of the plea that the custom stands established. Item No. 6 appearing at page 228 of the treatise states that the general rules of inheritance governing widows of Jats leaving no male lineal descendants are the same as in the case of Ahirs which is dealt with as item No. 6 at page 127 of the treatise which runs as follows :

''6. If a widow be proved unchaste or marry again by karao, she loses all right in her husband''s property. Instance.Ramdhan of Budhana left a widow, who took his property. A year after she married Rambaksh by karao, and then Ramdhan''s property (including even her nose ring) went to Ramdhan''s brother.

No. instances are quoted in support of the unchastity part of the stated custom nor does it appear that women whose rights it obviously affects were ever given an opportunity to appear before the officer complying the treatise. Besides, the custom as stated runs contrary to the general custom of the State which is laid down in paragraph 31 of Rattigan''s Digest of Customary Law (14th edition) thus:

Amongst Hindus generally, and less frequently amongst Muhammadans, uncondoned adultery in the husband''s lifetime deprives a widow of her right to succeed to his estate; and her unchastity as a widw sometimes causes a forfeiture of her life interest in that estate. But the onus is on those who assert the existence of a custom sanctioning forfeiture.

It appears to me that the mere expression of opinion by Mr. Wilson in favour of forfeiture following unchastity does not prove the special custom relied upon by the appellant unsupported by instances as that opinion is and runs, as it does, contrary to the general custom. In the view that I am thus taking, lam fully supported by Hardayal v. Mst Dakhan A.I. R. 1953 Pb. 209, a case of Hindu Kumhars of Sirsa Tehsil in District Hissar decided by Kapur and Soni JJ. Question 15 of the riwaj-i-am of Sirsa and the relevant portion of the answer thereto were as follows:

Question 15. - What is the effect of unchastity upon the right of a widow in respect of the estate of her deceased husband ? In the case of widows who are not Hindus, what is the effect of their remarriage ?

Answer 15 :

(a) If a sonless widow has succeeded to her husband''s estate, and be proved unchaste, or leave her husband''s house to reside permanently with her parents or elsewhere, or marry by ''nikah or ''karewa'' any one except a near agnate of her husband, she loses all right to her husband''s estate. (All tribes).

Note: If a widow bear an illegitimate child, or cohabit with any but an agnate of her husband, or elope from her home with any stranger, this is sufficient evidence of unchastity. All agree in saying that in such a case, or in the case of a widow''s marrying any but an agnate of her husband, she must give up land, house, and moveables of all kinds, even clothes and ornaments, and take away with her only the garments necessary for decent covering.

Reliance was placed by the Division Bench on Goukal Chand v. Parvin Kumari AIR 1953 S C. 331. in which one of the principles to be kept in view in dealing with questions of customary law was stated to be that the entries in the riwaj-i-am could be proved to be incorrect, that the quantum of evidence required for the purpose of rebutting them would vary with the circumstances of each case and that the presumption of correctness attaching to a riwaj-i am might be rebutted if it was shown that it adversely affected the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. Keeping this principle in view and applying it to the riwaj-i-am of Sirsa, the Division Bench observed :

As far as the Riwaj-i-am of Sirsa is concerned, there is nothing to show that any women were called when the Riwaj-i-am was compiled. Nor is there any proof that this custom has the sanction of long usage nor are there any instances in support of this custom. Reference was also made by the Bench to Fateh Singh Kalu 107 P.R. 1888 decided by Plowden and Burney JJ. who dealt with a similar recital in the riwaj-i-am thus :

The Riwaj-i-am states that if unchastity (badchalni) of a widow, on whom her husband''s estate has devolved, be proved, or if she quits her husband''s house, or marries a stranger, the estate is taken out of her possession, and her name is removed. No precedent is cited in the Riwaj-i-am. Some of the witnesses of the parties supported the plaintiffs contention; the witnesses before the commission were divided as to the custom. No instance of forfeiture was cited by any witness. At the hearing the appellants could cite one instance, and that occurred subsequently to the decision in the present suit.

Other authorities on the point were also reviewed by Kapur and Soni JJ, who held in the result that a custom of forfeiture of widows'' estate by reason of her urchastity could not be held established merely on the strength of the riwaja-a-am of Sirsa. To a similar effect is the judgment of the same Bench in Atma Ram Ram Saran v. M. Chambeli AIR 1952 Punj. 211 in which it was observed that the general custom of the Punjab was not in favour of forfeiture of estates by widows on account of their unchastity and that the ouns of proof was on the person who asserted a custom to the contrary. Hardayal and others v. Mst. Dakhan and Atma Ram Ram Saran v Mt. Chambeli and another (supra) were quoted with approval by Dua J. (as he then was) in Shrimati Dayal Kaur v. Balwant Singh ILR 12 Punj 1182 a case relating to Sainis of Kharar Tehsil of District Ambala.

The riwaj-i-am in the present case stands on exactly the same footing as those in Hariayal and others v. Mst. Dakhan and Alma Ram Ram Saran v. Mt. Chambeli and another (supra) and cannot be said to carry any greater evidentiary value. All by itself, therefore, it cannot be held to establish a special custom of forfeiture of widow''s estate resulting from her unchastity. The existence of such a custom is not sought to be established, from any other evidence and must be negatived.

9 No other point has been urged before me. In the result, therefore, I see no merit in the appeal which is dismissed. In the circumstances of the case, how ever, there will be no order as to costs.