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1998 DIGILAW 137 (HP)

GAGAN SINGH v. MANGOO

1998-07-28

A.L.VAIDYA

body1998
JUDGMENT A.L. VAIDYA, J.—The facts giving rise to the present appeal are that Smt. Leela, defendant No. 6, was the wife of one Situ. Situ was having three other brothers, namely, Sardaroo, Mangu and Biru. After the death of Situ who died in the year 1948 issueless, his widow Smt. Leela, defendant No. 6, survived him. After the death of Situ, Smt. Leela married Sardaru, the younger brother of Situ. This marriage took place much prior to the coming into force of Hindu Succession Act, 1956. The property inherited by Leela from her previous husband Situ was the subject-matter of the suit. Out of this subject-matter of the suit, 32 Kanats 14 marlas of land as detailed in the plaint, was gifted by Leela in favour of her sons-defendants 1 to 5 bom out of the loins of her second husband Sardaru. According to plaintiffs, on re-marriage, Leela forfeited her right to inherit the property of her original husband, therefore, she had no authority to transfer the land through gift deed in favour of her sons. According to plaintiffs, on her re-marriage, whatever she inherited, reverted to plaintiffs and other brothers of Situ and plaintiffs claimed themselves to be in exclusive possession of land measuring 130 kanals, 18 marlas, out of 394 kanals, 4 marlas as detailed in the plaint which included the gifted land also. 2. The defendants contested the suit and took various preliminary objections in their written statement. On merit, it was very specifically pleaded that on the basis of the custom, prevailing in the illaqua by which the parties were governed, a widow, on remarriage, did not forfeit her right in the property inherited by her from her husband on her re-marriage, in case the re-marriage was in the same family. The gift has been alleged to be a valid one and in accordance with law. The other averments in the plaint were not admitted. 3. Parties were put to trial on the following issues: 1. Whether the plaintiffs have locus-standi to sue? OPP. 2. Whether the suit is within time ? OPP. 3. Whether the defendant No. 6 had performed second marriage with defendant No. 7 before the application of the Hindu Succession Act, 1956, if so its effect ? OPP. 4. Whether the estate of Shri Situ devolved on the plaintiffs and defendant No. 7 as alleged? OPP 5. OPP. 2. Whether the suit is within time ? OPP. 3. Whether the defendant No. 6 had performed second marriage with defendant No. 7 before the application of the Hindu Succession Act, 1956, if so its effect ? OPP. 4. Whether the estate of Shri Situ devolved on the plaintiffs and defendant No. 7 as alleged? OPP 5. Whether the plaintiffs are in possession of the suit land as alleged? OPP. 6. Whether the defendant Nos. 1 to 6 are interfering with the possession of the plaintiffs over the suit land as alleged? OPP 7. Whether the gift out of the suit land by defendant No. 6 in favour of defendant Nos. 1 to 5 is wrong, illegal, void and not binding on the plaintiffs as alleged? OPP. 8. In case the plaintiffs are not found in exclusive possession of the gifted land (out of the suit land) whether they are entitled to the relief of possession ? OPP. 9. Whether the plaintiffs have acquired title to the gifted land (out of the suit land) by way of adverse possession as alleged ? OPP. 10. Whether the suit is not maintainable in the present from ? OPD. 10-A.Whether the parties were governed by custom in the matters of succession prior to the passing of Hindu Succession Act, 1956? If so, what is that custom ? OPD. 11. Relief. 4. The Trial Court came to the conclusion that Leela defendant No. 6 had married Sardaru, the younger brother of Situ much prior to coming into being of Hindu Succession Act, 1956 and she never became full owner of the suit property. The Trial Court also came to the conclusion that Leela had married Sardaru before 1950. It was also held by the Trial Court that there existed a custom that when a widow re-married the younger or elder brother of her deceased husband, then she did not forfeit her estate which had come to her as a limited owner from her deceased husband. It was also held that Leela continued to remain a limited owner till 1956 and in that year, she became the full owner of the suit land and she had every . right to alienate the land by way of gift in favour of her sons begotten through the loins of Sardaru. The suit of the plaintiffs was dismissed. 5. It was also held that Leela continued to remain a limited owner till 1956 and in that year, she became the full owner of the suit land and she had every . right to alienate the land by way of gift in favour of her sons begotten through the loins of Sardaru. The suit of the plaintiffs was dismissed. 5. The Rrial Courts judgment and decree were assailed before the first Appellate Court by the plaintiffs on various pleas. The Appellate Court accepted the appeal and set aside the judgment and decree appealed against and the suit of the plaintiffs was decreed to the effect that the gift deed dated December 31, 1981 registered on January 1, 1982 made by Smt. Leela, respondent No. 6 in favour of respondents 1 to 5 was set aside along with mutation No. 45 dated January 5, 1982 and the suit land, i.e. the share of Shri Situ was directed to be reverted to the nearest heirs of deceased Situ. 6. The present Regular Second Appeal has been preferred assailing the aforesaid judgment and decree passed by the first Appellate Court. 7. Learned Counsel for the parties have been heard and the record has been scrutinised. 8. The sole point stressed on behalf of the appellants before this Court has been that on the basis of the custom prevailing in the illaqua by which the parties were governed, Leela defendant No. 6, did not forfeit her right of inheritance in the property she inherited from her first husband after re-marrying the younger brother of her husband. According to learned Counsel, Leela defendant No. 6, inherited the property of her first husband Situ as a limited owner and after her re-marriage, with the younger brother of Situ, she did not forfeit her right in the property she had inherited from her husband as a limited owner. Learned Counsels further submission in this behalf has been that on the passing of the Hindu Succession Act, 1956, Leela became ful owner of the property she had inherited from her first husband and as full owner, she had every right to transfer the property in favour of her sons through the gift under reference. 9. Learned Counsels further submission in this behalf has been that on the passing of the Hindu Succession Act, 1956, Leela became ful owner of the property she had inherited from her first husband and as full owner, she had every right to transfer the property in favour of her sons through the gift under reference. 9. Learned Counsel for the appellants has tried to find some support in favour of the aforesaid submissions from Kangra Custom which has been described as answer to Question No. 47 in the Customary Law of Kangra District, compiled by L. Middleton, Esquire, I.C.S., Settlement Officer, Kangra District. For the sake of convenience and proper appreciation, Answer to Question No. 47 along with that Question, is re-produced hereunder: "Que. 47. What is the effect of unchastity upon the rights of a widow to the estate of her husband? What is the effect of her re-marriage? Ans. Generally a widow on re-marriage loses her estate, also unchastity, if proved, e.g. by the widow leaving her husbands house or by her having an illegitimate child, involves loss of her husbands estate. The Thakars, Rathis, Jats and Ghirths of Nurpur Tehsil assert that re-marriage involves loss of her estate, but if she has an illegitimate child she cannot be ejected from her husbands estate of which she retains possession provided she lives in his house." 10. The aforesaid answer, as it is, does not help the case of the appellant at all as has been submitted before this Court. There is nothing in the answer that a widow inheriting a limited estate on the death of her husband, on re-marriage in the same family, will not forfeit the property inherited by her from her first husband. The answer is very much clear and specific wherein it has been stated that the Thakars, Rathis, Jats and Ghirths of Nurpur Tehsil assert re-marriage involves loss of her estate. There is nothing in the answer as to whether re-marriage in the family or outside the family will have a separate effect on the inheritance of widows estate. The only exception given is that in case a widow has an illegitimate child and was living in the house of her first husband and was in possession of the property she had inherited as limited owner, she will not, in that event, forfeit that right. The only exception given is that in case a widow has an illegitimate child and was living in the house of her first husband and was in possession of the property she had inherited as limited owner, she will not, in that event, forfeit that right. So far as the present case is concerned, it is not at all covered by the answer referred to above to question No. 47. 11. The Court below has rightly held that Smt. Leela defendant No. 6, on her re-marriage prior to the passing of the Hindu Succession Act, had forfeited her right in the property she had inherited from her first husband as limited owner. At that time, on her re-marriage, Hindu Widows Re-marriage Act was applicable and that was repealed only after the passing of Hindu Succession Act, 1956 and on the basis of that repealed Act, a widow was to forfeit her right in the property she had inherited from her first husband on her re-marriage. 12. No other point has been stressed, except the aforesaid alleged custom which does not help the case of the appellants at all. 13. In view of the foregoing reasons, the appeal fails and is accordingly dismissed, leaving the parties to bear their own costs. The property inherited by defendant No. 6 from her first husband Situ shall revert back to Situs legal heirs, on defendant No. 6s re-marriage with Situs younger brother. The appeal stands disposed of accordingly. Appeal dismissed.