BASANT KAUR Vs. CHARAN KAUR

JUDGEMENT

(1.) Smt. Charan Kaur plaintiff-respondent No. 1 is the daughter of Hazara Singh of village Kaonka Kalan, tehsil Jagraon, District Ludhiana. Smt. Basant Kaur alias Bhundo defendant-appellant No. 1 claimed herself to be the widow of Hazara Singh. Smt. Charan Kaur alleged that Smt. Basant Kaur by misrepresentation got half share of the estate of Hazara Singh after his death which was mutated in her name vide mutation No. 7794. She has then given that half share of the estate of Hazara Singh by means of gift deed dated 3-12-1973 Ex. D.4 to Hazara Singh defendant-appellant No. 2. Smt. Charan Kaur alleged that Smt. Basant Kaur was not legally wedded wife of Hazara Singh and as such she was not entitled to half share of his estate. She consequently filed a suit for declaration to the effect that the gift deed Ex. D. 4 was illegal and did not affect her rights as daughter of Hazara Singh and as his sole heir. She, thus filed a suit for joint possession of the estate of Hazara Singh in the suit land which she owned to the extent of one half share. The defendant-appellants contested the suit. They contended that defendant No. 1 was the legally wedded wife of Hazara Singh and she along with the plaintiff inherited the estate of Hazara Singh in equal shares. It was further stated that defendant No. 1 gave birth to a male child named Buta Singh from the loins of Hazara Singh on 3-11-57 and she had been living with Hazara Singh as his wife. A Will Ex. D. 2 dated 3-7-1970 alleged to have been executed Hazara Singh was also propounded. It was further asserted that the plaintiff and defendant No. 1 had partitioned amongst themselves in equal shares the estate of Hazara Singh vide agreement dated 3-2-1973 Ex. D. 3 and as such the plaintiff was stopped from filing the suit. It was further pleaded that the suit was barred by limitation. The learned sub Judge 1st Class, Jagraon, vide judgment and decree dated 23-3-1976 dismissed the suit. An appeal filed by Smt. Charan Kaur, however, succeeded. The judgment and the decree of the learned Sub Judge Ist Class were set aside and her suit was decreed by the learned Additional District Judge vide judgment and decree dated 11-8-1977. The defendant-appellants, thus, filed the present regular second appeal in this court.

(2.) It may be mentioned right at the outset that after closely scrutinising the evidence and on due appreciation of the same, the learned additional District Judge has reached at a firm finding of fact that the will dated 3-7-1970 Ex. D. 2. propounded by the appellants was surrounded by suspicious circumstances and it was not a genuine and an authentic document. Likewise, the alleged agreement of partition of the estate of Hazara Singh between appellant No. 1 and respondent No. 1 Ex. D. 3 was ruled out of evidence firstly on the ground that its attesting witnesses had given mutually contradictory evidence which made this document suspicious and secondly because it was inadmissible in evidence for want of registration. I do not find any ground to disturb these findings of fact though the learned counsel for the appellants sought re-appreciation of the evidence on the basis of which the above conclusions were arrived at by the learned Additional District Judge.

(3.) Mr. K.C. Puri, the learned counsel for the appellants, did not dispute the fact that there was definite evidence of the record that appellant No. 1 was married to one Puran Singh of village Alamwala, district Ferozepur, who had turned her out of his house by giving her a beating. He, however, submitted that the evidence on the record shows that she had thereafter been living with Hazara Singh and their living together for nearly 20 years as husband and wife of Hazara Singh. He, thus, proceeds to contend that irrespective of the Will Ex D.2 and the agreement Ex. D.3 she being the widow of Hazara Singh was entitled to one half share of his estate after his death-the other half going to respondent No. 1, the daughter of Hazara Singh and his only issue. Mr. Puri very fairly conceded that he could not get out of the evidence on the record that appellant No. 1 was married to Puran Singh; that the said Puran Singh is still alive; that there has been no divorce between Puran Singh and appellant No. 1 either in accordance with law or under the custom and that there is no convincing evidence on the record that there was any ceremony of marriage by Anand Karaj or by Chaddar andazi by which she became the legally wedded wife of Hazara Singh. He however contends that according to the custom amongst the Jats of Ferozepur district, if a man turns out his wife by giving her a beating she is at liberty to remarry and since she and Hazara Singh had been living together as husband and wife till his death, the marriage between them is to be presumed. In support of this submission, he has placed reliance on Mst. Angrez Kaur v. Gurdit Singh and others,1962 PunLR 1179. He also contended that under section 29(2) of the Hindu Marriage Act, 1956, the right recognised by custom as to dissolution of a Hindu marriage whether before or after the commencement of the said Act is not affected by its provisions. In support of his submission, he placed reliance on Pritam Singh v. Smt. Sowarni,1966 PunLR 410. He also pointed out that village Alamwala to which Puran Singh the former husband of appellant No. 1, belongs, as also village Dhudheke, her parents' village are in district Ferozepur and it is undisputed that parties are Jats.