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2010 DIGILAW 866 (PNJ)

Lekh Raj v. Kirna

2010-02-11

RAKESH KUMAR GARG

body2010
JUDGMENT Rakesh Kumar Garg, J. (Oral): CM Nos.963-C & 1453-C of 2010 Civil Misc. applications are allowed subject to just exceptions. RSA No.353 of 2010 (O&M) This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the respondent-plaintiff for declaration to the effect that she is entitled to inherit the property in dispute of her deceased husband, Mangat Ram, along with her mother-in-law (Satya Devi) in equal shares and the order dated 19.10.2003 passed by the AC 1st Grade, Tohana and the dated 19.10.2004 passed by the Collector, Fatehabad were illegal, was decreed. The claim of the respondent-plaintiff in the civil suit was that she being the widow of Mangat Ram, had a right to inherit his property along Satya Devi, mother of deceased Mangat Ram, in equal shares being class-1 heirs of the deceased under Section 8 of the Hindu Succession Act. The aforesaid claim of the respondent-plaintiff was contested by the appellant-defendant on the ground that the plaintiff-respondent was divorced before the death of Mangat Ram orally, which was permissible in the custom of Gujjar caste of the area. On appreciation of evidence on record and after hearing learned counsel for the parties, the trial court found that the appellants have failed to prove the custom as pleaded by leading positive evidence and the suit of the plaintiff-respondent was decreed. Feeling aggrieved, the appellant filed an appeal before the lower appellate court which was also dismissed. Still not satisfied, the defendant-appellant has approached this court by way of the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the lower appellate court has erred at law while dismissing the appeal on the ground that after enforcement of the Hindu Marriage Act, the defendant cannot plead the customary right. According to the learned counsel, the aforesaid approach of the lower appellate court is incorrect in view of the provisions of Section 29(2) of the aforesaid Act. I have heard learned counsel for the appellant, however, I find no merit in the contention raised by him. According to the learned counsel, the aforesaid approach of the lower appellate court is incorrect in view of the provisions of Section 29(2) of the aforesaid Act. I have heard learned counsel for the appellant, however, I find no merit in the contention raised by him. Even if, as argued by learned counsel for the appellant, it is assumed to be correct that the defendant had a right to plead custom after enforcement of the Hindu marriage Act and such a customary right is protected under Section 29(2) of the Act, from the record of the case, I find that there is no challenge to the finding of fact recorded by the trial court to the effect that the appellant has failed to prove the factum of custom prevalent in the area. It is also not in dispute that Mangat Ram died on 24.4.1997 leaving behind the plaintiff, who being wife, was entitled to inherit along with Satya Devi, who was mother. It is also pertinent to note that though, it has been pleaded that an oral divorce has taken place between the parties on the basis of custom prevalent amongst the parties, yet admittedly there is no evidence of the date on which the aforesaid divorce took place between the plaintiff-respondent and deceased Mangat Ram. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed.