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2002 DIGILAW 536 (ALL)

Dinanath Verma v. Gokaran

2002-04-12

B.K.RATHI

body2002
JUDGMENT B. K. Rathi, J. 1. THE Suit No. 20 of 1972 was filed in the court of Civil Judge, Basti by the respondent No. 1 for the relief of partition of 1/3 share of respondent No. 1 in the disputed four houses, details at the foot of the plaint and for recovery of Rs. 2,136 being arrears of rent from defendants Nos. 1 and 2 and Rs. 840 as arrears of rent from defendants Nos. 6 and 7. 2. THE facts of the case in brief are that there was one Pati Raj Sonar, who left Smt. Yashoda as his widow and Tirath Ram as his son. Tirath Ram was married to Smt. Lakhraji, appellant No. 8. Tirath Ram died on 14.10.1967, leaving Smt. Lakhraji his wife, Smt. Yashoda Devi his mother, Smt. Kesari Devi and Smt. Kapura Devi, respondent Nos. 2 and 3 as his daughters. It is alleged in the plaint that after the death of Tirath Ram, Smt. Lakhraji re-married with Phagoo, who was appellant No. 1 in this appeal and died during the pendency of the appeal. That according to the custom prevailing in the locality regarding the community to which parties belong, Smt. Lakhraji divested of the property, which was inherited by her from her husband, Tirath Ram after re-marriage. That the plaintiff purchased the property from Yashoda Devi, mother of Tirath Ram, who had 1/3 share in the disputed houses after the death of Tirath Ram and re-marriage of Lakhraji. It was also pleaded that Smt. Lakhraji also executed sale deeds of the disputed houses in favour of other appellants. That Smt. Lakhraji has no right to execute the sale deed. She had no share in the property. That the appellants Nos. 1 and 2 had realised Rs. 2,136 as rent from the purchasers and they are liable to pay this amount to the plaintiff. That the respondent No. 1 is also entitled to get Rs. 2,136 as arrears of rent from the other appellants. 3. THE respondent Nos. 2 and 3 claimed 2/3rd share in the disputed houses and also paid court fee and made request for partition of their 2/3 share in the disputed house. 4. THE suit was contested by the appellants and they have pleaded that Smt. Lakhraji never re-married to Phagoo. 2,136 as arrears of rent from the other appellants. 3. THE respondent Nos. 2 and 3 claimed 2/3rd share in the disputed houses and also paid court fee and made request for partition of their 2/3 share in the disputed house. 4. THE suit was contested by the appellants and they have pleaded that Smt. Lakhraji never re-married to Phagoo. That there is no such custom in the community that on the re-marriage of the widow, she is divested from the property succeeded by her from her previous husband. That Smt. Yashoda Devi had no right in the property. She surrendered her rights in the property in favour of Tirath Ram and after the death of Tirath Ram, the property was inherited by Smt. Lakhraji. That the disputed property is agricultural land in which houses have been constructed. That during the consolidation operations, the entire property was entered in the name of Smt. Lakhraji and, therefore, the claim of Smt. Yashoda Devi and the plaintiff and respondent Nos. 2 and 3 is barred by Section 49 of U. P. Consolidation of Holdings Act. The trial court recorded the oral and documentary evidence and has held that Smt. Lakhraji has never re-married with Phagoo. That there is no custom in the community of Tirath Ram of divesting the widow of the property on remarriage after the death of husband. That the plaintiff had no share in the property. That he is not entitled to damages and rent. Accordingly, the trial court dismissed the suit. 5. AGGRIEVED by the dismissal of the suit, Gokaran, respondent No. 1 preferred Civil Appeal No. 492 of 1980, which has been allowed and suit for partition of 2/3 share and recovery of Rs. 2,136 from the appellant Nos. 1 and 2 and Rs. 840 from appellant Nos. 6 and 7 has been decreed. AGGRIEVED by the decree, the present appeal has been preferred. 6. I have heard Sri Rajeev Gupta, learned counsel for the appellants and Sri H. K. Mishra, learned counsel for the respondent Nos. 2 and 3, who have come to contest the appeal. The learned counsel for the respondent No. 1, who filed the suit did not appear and, therefore, could not be heard. I have gone through the entire record. Various substantial questions of law were framed by the appellants in the memo of appeal. 2 and 3, who have come to contest the appeal. The learned counsel for the respondent No. 1, who filed the suit did not appear and, therefore, could not be heard. I have gone through the entire record. Various substantial questions of law were framed by the appellants in the memo of appeal. However, order sheet shows that the appeal was admitted on three substantial questions of law, mentioned below : (1) Whether the court below had the jurisdiction to entertain the appeal filed by the plaintiff? (2) Whether the court below has erred in law in considering the effect of the dismissal of Suit No. 64 of 1968? (3) Whether the court below has erred in interpreting the effect of Section 14 of the Hindu Succession Act over the provisions of Section 2 of the Hindu Widow's Re-marriage Act, 1856?" 7. AS regards the question No. 1, the same has not been challenged during the arguments before me and, therefore, without considering the merits, I record a finding that the first appellate court had jurisdiction to entertain the appeal against the original decree passed by civil court. 8. NOW coming to the other questions, firstly, I consider whether Smt. Lakhraji remarried to Phagoo. Oral evidence has been produced regarding re-marriage. However, the same does not appear convincing. There is absolutely no evidence to show that the marriage took place. On the other hand, only it is alleged that it was 'ghar baitha' ; that sagai took place and thereafter Smt. Lakhraji and Phagoo started living as husband and wife. It does not show that it was a legal marriage. It is not alleged in the plaint that "sapta-pati" took place and, therefore, this marriage cannot be recognised and Smt. Lakhraji cannot be divested from the property. In the present case, it is admitted position that the name of Smt. Lakhraji was recorded over the land on which disputed houses exist in C. H. Form No. 23. Smt. Lakhraji was declared as exclusive owner of the land and chack was carved out in her name. Smt. Yashoda Devi and respondent Nos. 2 and 3 did not raise any objection in the consolidation proceedings. They have not stated that Smt. Lakhraji has been divested from the land because she had re-married with Phagoo. Smt. Lakhraji was declared as exclusive owner of the land and chack was carved out in her name. Smt. Yashoda Devi and respondent Nos. 2 and 3 did not raise any objection in the consolidation proceedings. They have not stated that Smt. Lakhraji has been divested from the land because she had re-married with Phagoo. Therefore, the allegation made in the suit is only an afterthought and the allegation that Smt. Lakhraji has remarried cannot be accepted. 9. THE Apex Court in the case of Surjit Kaur v. Garja Singh and others, AIR 1994 SCC 135 , has held that where customary marriage is pleaded but the custom is not pleaded and there is no evidence of the nature of the ceremonies performed in marriage, in such a case, from the evidence that the parties were living together as husband and wife does not itself show that it would confer status of husband and wife. 10. IN this connections, it may also be mentioned that Suit No. 64 of 1998 was filed against Smt. Yashoda Devi. IN that suit, Smt. Yashoda Devi denied that Smt. Lakhraji has re-married. On the other hand, she denied the factum of re-marriage. Gokaran, the plaintiff purchased the property from Smt. Yashoda Devi. Therefore, the admission of Smt. Yashoda Devi is binding on him and he is estopped from pleading that Smt. Lakhraji has re-married with Phagoo. Learned counsel for the appellants has also referred to The Hindu Widow's Re-marriage (Repeal) Act, 1983, which shows that this Act was repealed from 31.08.1983. Therefore, the result of the repeal of the Act is that on re-marriage, the widow is not divested of the property, which she has succeeded on the death of her first husband. 11. IT may also be mentioned all the four houses are existing in agricultural land and admittedly there is no declaration under Section 143 of U.P.Z.A. and L.R. Act. Learned counsel for the appellants has referred to the decision of this Court in Indrajeet Singh v. Sardar Arjun Singh and others, 1983 RR 304. IT was held in this case, that if no declaration in respect of the land is made under Section 143 of U.P.Z.A. and L.R. Act, the land did not cease to be land. That even if certain construction exists on the land, it is not material. IT was held in this case, that if no declaration in respect of the land is made under Section 143 of U.P.Z.A. and L.R. Act, the land did not cease to be land. That even if certain construction exists on the land, it is not material. IT was further observed that the rights decided by the consolidation courts on such land are final. 12. APART from this, it is not disputed that during consolidation, the entire property was recorded in the name of Lakhraji. The decisions of consolidation courts are final under Section 49 of U. P. Consolidation of Holdings Act and Smt. Yashoda Devi or respondent Nos. 2 and 3 cannot claim the property. Their claim is barred by Section 49 of U. P. Consolidation of Holdings Act. There is also no reliable evidence regarding the custom that on re-marriage the widow is divested of the property inherited from her previous husband. Even if for the sake of the arguments, it is considered that the property is governed by Hindu Succession Act. It does not make any difference. Tirath Ram died on 14.10.1967, i.e., after the enforcement of Hindu Succession Act. Therefore, Smt. Lakhraji will inherit the property under Section 14 of the said Act as absolute owner and not as limited owner. If she became absolute owner of the property, she cannot be divested of the same for the reason that she has remarried with Phagoo. 13. IN the result, I find that the plaintiff, Gokaran has no right in the property in the suit. The sale deeds executed by Smt. Yashoda Devi in his favour are void as Smt. Yashoda Devi has no share in the property in the dispute. Smt. Lakhraji was absolute owner of the property and she transferred it to the other appellants. The sale deed is valid. The respondent Nos. 2 and 3 has also no share in the property in the suit. 14. THE trial court, therefore, rightly dismissed the suit. The result of the above discussion is that the first appellate court has not decided the matter in right perspective and the judgment of the appellate court is against the weight of evidence and is against law and is based on conjectures and surmises. I accordingly, find that it has not been proved that Smt. Lakhraji has remarried with Phagoo. 15. I accordingly, find that it has not been proved that Smt. Lakhraji has remarried with Phagoo. 15. ACCORDINGLY, the appeal is allowed with costs and judgment and decree of the first appellate court is set aside and that of the trial court is restored.