Shri Jit Ram (Decd.) thr. LRs. vs Smt. Samey Kaur (Decd. thr. LRs.) and Others

Sanjiv Khanna, J.—The present Letters Patent Appeal is directed against the Order dated 15th January, 1996 passed by the learned Single Judge in Writ Petition (Civil) No. 302/1978 titled Smt. Samey Kaur v. Shri Jit Ram and Ors.

Background facts.

Late Mr. Shadi Ram had three sons, Mr. Ram Mehar, Mr. Jit Ram and Mr. Sukh Ram. These three brothers were in occupation of 77 bighas and 6 bids was of agricultural land in Khasra Nos. 66, 133/1, 133/2 and 518 situated in Village Bharthal, Delhi.

Mr. Ram Mehar died in 1944. He left behind his widow Mrs.Samey Kaur and a daughter, Ms. Dhanpati.

In 1954, Delhi Land Reform Act (hereinafter referred to as the Act, for short) was enacted and it appears that vide Order dated 26th April, 1958 passed by the Revenue Assistant, Mrs.Samey Kaur, Mr. Jit Ram and Mr.Sukh Ram were declared as Bhumidars with 1/3rd share each in the aforesaid land. Mrs. Samey Kaur was treated as having inherited 1/3rd share of the land from her deceased husband, Mr.Ram Mehar.

Civil Litigation

Mr. Jit Ram filed a Civil Suit in the year 1964 claiming that the land measuring 77 bighas and 6 bids was in Vill. Bharthal belongs to him and his brother, Mr.Sukh Ram with both having 50% share. It was alleged that Mrs.Samey Kaur in 1945-46 had got married to Mr.Sukh Ram under customary law by performing Kareva marriage and Therefore was wrongly described and regarded as a bhumidar in the revenue records. The Suit was dismissed vide judgment dated 1st May, 1965 by Sub-Judge, First Class, holding, inter alia, that the alleged Kareva marriage between Mrs.Samey Kaur and Mr.Sukh Ram was not proved and established.

First appeal filed against the said judgment was also dismissed. Mr. Jit Ram thereafter filed a second appeal before this Court, which was admitted. The said Appeal was disposed of, inter alia, holding that the civil courts do not have jurisdiction to examine the question of bhumidari rights in view of the judgment of the Supreme Court in Hatti Vs. Sunder Singh, . Litigation before the Revenue Authorities.

The second round of litigation thereafter assumed importance with Mr. Jit Ram filing an application before the Sub-Divisional Magistrate u/s 11 of the Act for declaration that Mrs. Samey Kaur had been wrongly recorded as 1/3rd shareholder of the Bhumidari rights in the said land and the said land belongs exclusively to Mr.Sukh Ram and Mr. Jit Ram. It was observed by the Sub- Divisional Magistrate that the question of re-marriage between Mrs. Samey Kaur and Mr. Sukh Ram was not a revenue matter and vide Order dated 22nd November, 1974, the Additional Collector had earlier remanded the matter back to the Sub- Divisional Magistrate/Revenue Assistant for re-trial after framing issues and giving opportunity to the parties to led evidence. Evidence was recorded by Sub- Divisional Magistrate and after discussing the evidence on record he rejected the application holding that Mrs. Samey Kaur had not re-married Mr.Sukh Ram and was entitled to 1/3rd share of the land being a Bhumidar and a legal heir of her deceased husband, late Mr.Ram Mehar.

On appeal, the Additional Collector upheld the aforesaid Order vide his decision dated 28th September, 1976.

The matter was taken up in Second Appeal before the Financial Commissioner by Mr. Jit Ram. Financial Commissioner vide his Order dated 23rd February, 1978 held that the two authorities below had erred in referring to and relying upon the decisions of the Civil Courts as they lacked jurisdiction and the matter had to be decided on the basis of evidence produced and led by the parties before the revenue authorities. Learned Financial Commissioner further held that if Mrs. Samey Kaur had got married to Mr. Sukh Ram her right to inheritance to the estate of her late husband would stand extinguished and Therefore declaration of 1/3rd Bhumidari rights in her name would be wrong and illegal and Mr. Jit Ram and Mr. Sukh Ram would be Bhumidars of share each. The Financial Commissioner thereafter went on to examine the question of alleged Kareva marriage between Mrs. Samey Kaur and Mr.Sukh Ram. He noticed that the parties had led oral evidence in support of their rival contentions but Mrs. Samey Kaur had not produced any documentary evidence, whereas Mr. Jit Ram had produced a ration card and voters list, wherein Mrs. Samey Kaur had been described as wife of Mr.Sukh Ram. He observed that Mrs. Samey Kaur had not taken any steps and protested against the entries in the two records recording that she was a wife of Mr. Sukh Ram. He held that the two documents were reliable and prepared by Government functionaries in discharge of their official duties and, Therefore, it was established that Mrs. Samey Kaur had married Mr.Sukh Ram. Accordingly her rights in the property inherited from her husband, late Mr.Ram Mehar stood extinguished and she was wrongly declared as Bhumidar having 1/3rd share.

WRIT PETITION

Mrs. Samey Kaur thereupon filed a writ petition in this Court and vide judgment dated 15th January, 1996 passed by the learned Single Judge, the Order of the Financial Commissioner was set aside and the Order passed by the Sub- Divisional Magistrate was restored, inter alia, holding that Mrs. Samey Kaur is 1/3rd Bhumidar of the land. Learned Single Judge referred to the evidence produced by the parties before the revenue authorities and held that the Financial Commissioner had wrongly assumed and regarded as proved the factum of Kareva marriage only on the basis of electoral rolls and ration card, without there being any clear and direct evidence of marriage. Learned Single Judge further held that to take away a woman''s right to property inherited from her husband was extremely harsh.

THE PRESENT APPEAL AND CONTENTIONS OF THE PARTIES.

Now it was the turn of Mr. Jit Ram to file this intra-court Appeal, which was admitted for hearing. During the pendency of this appeal, Mr. Jit Ram, Mr. Sukh Ram and Mrs. Samey Kaur have expired and their legal representatives have been brought on record.

Learned Counsel appearing for the legal representatives of Mr.Jit Ram initially relied upon the provisions of the Act and submitted that upon re- marriage a widow loses her right in the property inherited from her husband. Learned Counsel however, gave up reliance on the said provisions, when it was brought to his notice that succession on the death of Mr.Ram Mehar had opened up in the year 1944 and as per the case of the appellant, Mrs. Samey Kaur had married Mr. Sukh Ram in the year 1945-46 i.e. before the Act had come into force. Learned Counsel for the appellant thereafter sought to rely upon the judgment of the Lahore High Court in Parji v. Mangta reported in 29 IC 1931, wherein it was observed as under:

With regard to the question of custom I must assume for the purposes of this case, because I am not competent to disturb that finding, that the widow Musammat Parji contracted a marriage with Dewa by way of kerawa. In my opinion that leads to the inevitable conclusion that the parties are governed by custom with regard to marriage. It was, Therefore, not for the plaintiff to establish a custom that the widow lost her rights on marriage in the present case even that the parties were governed by custom. It was on the other hand for the defendant to prove a special custom that she did not lose her right to succeed to the property in dispute, but she did not plead the existence of such a special custom. It is not contested before me that among the parties governed by custom re-marriage has the effect of divesting a widow of all rights of inheritance in her husband''s estate. Under these circumstances in my opinion Act XV of 1856 has no application to the present case, and the conclusion of the learned District Judge that Musammat Parji, having contracted a karewa marriage lost her rights according to the general custom of the province which conclusion appears to be supported by the Customary Law of the Ambala District, is correct.

FINDINGS

In the light of the contentions raised by the appellant, we have examined and gone through the paper book.

As stated above, the learned Financial Commissioner had relied upon the ration card and the voters list stating, inter alia, that these documents were prepared by Government functionaries and establish that Mrs. Samey Kaur had married Mr.Sukh Ram. We have examined both the documents copies of which have been placed on record. The ration card upon which reliance is placed by the appellant was issued on 17th March, 1975, much after disputes arose between Mrs. Samey Kaur on the one side and Mr. Jit Ram and Mr. Sukh Ram on the other side. The core dispute was whether Mrs.Samey Kaur had got married with Mr.Sukh Ram. It may be mentioned here that the first Civil Suit was filed by Mr. Jit Ram in 1964 claiming that Mrs. Samey Kaur had a Kareva marriage with Mr.Sukh Ram in the year 1945-46. Mr. Sukh Ram had supported Mr. Jit Ram in the said Civil Suit. This document, i.e. ration card of 1975, Therefore, is a self-serving document prepared on the statement of Mr. Sukh Ram, as the head of his family, claiming that Mrs. Samey Kaur was his wife. This document does not establish that Mrs. Samey Kaur had admitted that she had got re-married to Mr.Sukh Ram. What document and papers were relied upon by Mr. Sukh Ram for this ration card to be made and issued were not brought on record. It may be interesting to note here that the age of Mrs.Samey Kaur in the ration card has been mentioned as 60 years and the age of Mr.Sukh Ram has been mentioned as 32 years. The other document is electoral roll for the year 1971, in which Mrs. Samey Kaur has been described as wife of Mr.Sukh Ram, aged 36 years. This document again was prepared seven years after disputes had arisen between Mrs. Samey Kaur and Mr. Jit Ram/Mr. Sukh Ram. On the other hand, we have the revenue records dated 27th December, 1961 in form of copy of the register of mutation relating to Vill. Bharthal. In this document, Mrs. Samey Kaur has been described as widow of Mr. Ram Mehar who is entitled to 1/3rd share with the remaining 2/3rd share being owned in equal share by Mr.Jit Ram and Mr. Sukh Ram, sons of late Mr. Shadi Ram. This revenue record further indicates that the mutation in favor of Mrs. Samey Kaur had been made about 8 years back and Mr. Jit Ram had filed an application for mutation of 1/2nd portion of land in his name in place of Mrs. Samey Kaur.

Having examined the documentary evidence on record, we agree with the findings of the learned Single Judge that the Financial Commissioner had erred in solely relying upon the documentary evidence in the form of electoral roll of 1971 and ration card prepared in 1975 to hold and decide that Mrs. Samey Kaur had performed Kareva marriage with Mr.Sukh Ram in 1945-46. These documents though admissible in evidence have to be viewed with suspicion and the evidentiary value has to be considered and examined keeping in mind the fact that disputes and differences had arisen between the parties long back in 1961 and even civil litigation was started by Mr. Jit Ram in 1964. No document whatsoever has been placed on record by Mr. Jit Ram and Mr. Sukh Ram for the period between 1945-46 till 1971 to show and establish that Mrs.Samey Kaur was recorded as wife of Mr. Sukh Ram in the official records. On the other hand, in the revenue records all along Mrs. Samey Kaur had been described as widow of Mr. Ram Mehar, who had 1/3rd share in the land with 2/3rd share being owned by Mr. Sukh Ram and Mr. Jit Ram. The Financial Commissioner, Therefore, erred in relying upon material and documents on which substantial reliance should not have been placed and in ignoring other evidence which was relevant.

The Financial Commissioner has completely ignored the oral evidence produced by the parties. However, the revenue authorities while rejecting the application u/s 11 of the Act had referred to the oral evidence. Evidence on record shows that Mr. Ram Mehar was the eldest son of late Mr. Shadi Ram. Mr. Sukh Ram was much younger than Mrs.Samey Kaur and was born after the marriage of Mrs.Samey Kaur with Mr.Ram Mehar. The age difference between the two, is not denied and is apparent from the documents itself. Mrs. Samey Kaur was about 15- 16 years older than Mr. Jit Ram. There is also evidence on record to show that Mr. Sukh Ram had got married to a girl from Vill. Kerwale before 1945-46 and thereafter had got married to Ms. Shamo. If the claim of Mr. Jit Ram is accepted, the marriage of Mrs.Samey Kaur with Mr. Sukh Ram would be his second marriage, with third one with Ms. Shamo, later on. Mr. Sukh Ram also has 5-6 children. Legal heirs of Mr. Sukh Ram have now stated that there was no Kareva marriage between Mrs. Samey Kaur and Mr. Sukh Ram. It is also admitted that Mrs. Samey Kaur has one child from Mr. Ram Mehar namely, Ms. Dhanpati.

Witnesses, Mr. Ram Har and Mr. Ram Swaroop no doubt have orally stated that there was Kareva marriage between Mr. Sukh Ram and Mrs. Samey Kaur but while examining their statements one has to keep in mind that they were villagers and it was natural for them to support Mr. Jit Ram and object to inheritance by Mrs. Samey Kaur, a widow. Mr.Jit Ram and Mr. Sukh Ram had to gain in case Mrs.Samey Kaur was dis-inherited and her share was to be equally distributed between Mr.Jit Ram and Mr.Sukh Ram. Mrs. Samey Kaur, on the other hand, in her oral statement had denied any such marriage between her and Mr. Sukh Ram. She had further stated that when she got married to Mr. Ram Mehar, Mr.Sukh Ram was not even born. She had further narrated how she used to cultivate her land and after the said land was acquired, disputes had arisen on account of compensation payable on acquisition. Mr. Jit Ram and Mr. Sukh Ram had received their share of compensation but had objected to compensation payable to Mrs. Samey Kaur. She had expressly stated that marriage of her daughter, Ms. Dhanpati was performed by her from her personal funds. She had denied that any daughter was born to her after her marriage with Mr. Sukh Ram. We, Therefore, uphold the findings of the learned Single Judge that the appellant has not been able to establish kareva marriage with Mr. Sukh Ram. In these circumstances, we need not examine the ratio of the decision in Parji case (supra).

The Sub-Divisional Magistrate and the Additional Collector while dismissing the application u/s 11 of the Act filed by Mr. Jit Ram had referred to the oral evidence and reached the conclusion that the allegation that Mrs.Samey Kaur had remarried Mr. Sukh Ram lacked conviction and had been made at the behest of two interested persons and the said evidence cannot be regarded as independent and unbiased. Mr.Sukh Ram had admitted that he was living with his wife and Mrs.Samey Kaur was not living with him.

In view of the above, we do not find any merit in the present Appeal and the same is accordingly dismissed. In the facts and circumstances of the case, there will be no order as to costs.