SADA KAUR Vs. BAKHTAWAR SINGH

JUDGEMENT

(1.) THE following pedigree-table of the parties assists In appreciation of the facts of the casegulab SINGH (deceased)| ____________________________________________________________________ _ | | | | | Dalip Singh Chand Singh Sampurna Singh Bakhtawar Singh Jit Singh (deceased) Defendant 2. (deceased) Plaintiff 1. Plaintiff 2. | Widow Sada Daughters Kaur | Defendant 1. _________________ _ | | Kartar Kaur Jas Kaur defendant 3. Defendant 4. The land in dispute was inherited by his five sons on the death of Gulab Singh, the common ancestor. The suit, out of which the present second appeal arises, was instituted by the two plaintiffs on January 22, 1962- They averred that some thirty years earlier to that Dalip Singh had died issueless, leaving him surviving his widow Sada Kaur defendant 1, who, within a few months of the death of her husband, remarried, by Karewa. the real brother of her husband, Chand Singh defendant 2. They have had a number of children out of that marriage. On the death of Sampuran Singh, his two daughters (defendants 3 and 4) sold one-fifth share of their father to the remaining four branches of the common ancestor. The plaintiff averred that the land is ancestral qua them and their brother Dalip Singh deceased, that they were governed by custom among Dhaliwal Jats in Muktsar Tehsil of Ferozepur District in regard to inheritance, widow's right to succession, and forfeiture of estate on widow's unchastity or remarriage, and that throughout they have remained in possession of the land as owners and co-sharers. They sought declaration that they were owners of two-thirds of the land, the rest one-third remaining with Chand Singh defendant 2. This they claimed on the ground that on remarriage Sada Kaur defendant 1 forfeited her right to the estate of her deceased husband Dalip Singh.

(2.) THE trial Court found that the suit of the plaintiffs was within time, that though the parties are Dhaliwal Jats, by the custom applicable to them. Sada Kaur defendant 1 did not forfeit her first husband's estate on remarriage to his real brother Chand Singh defendant 2, that the plaintiffs failed to prove their title by prescription, that the land is ancestral qua the plaintiffs and Dalip Singh deceased, and that Sada Kaur defendant 1 had become full owner of her share of the land In view of the provisions of the Hindu Succession Act, 1956 The learned trial Judge by his judgment and decree of June 13. 1963, thus did not grant declaration to the plaintiffs as praved for by them, but he made a declaration that they along with Chand Singh defendant 2 are owners and in possession of four-fifths of the land in dispute Decree was ordered to be made according to that, leaving the parties to bear their own costs On an appeal by the plaintiffs from the decree of the trial Court, the learned Additional District Judge of Ferozepur by his judgment and decree of August 7. 1964, reversed the decree of the trial Court and decreed the claim of the plaintiffs as a whole. He pointed out that no other issue was a matter of argument before him except whether Sada Kaur defendant 1 having remarried, within a few months of the death of her first husband, his real brother Chand Singh defendant 2, forfeited the estate she inherited from her first husband or not? He answered the question in favour of the plaintiffs and against the defendants, relying very greatly upon the statement of custom in this behalf as given at page 166 of Currie's Customary Law of Ferozepur District of the Settlement of 1914. Question 47 is --What is the effect of unchastity upon the right of a widow to the estate of her deceased husband? What is the effect of her remarriage? And the answer given is" answer-- At last settlement Mr. Francis wrote:-'unchastity or remarriage deprives a Widow of her right to the property. ' The Muktsar Code gives a similar answer. The Sirsa Code, however, stated; "if a sonless widow have succeeded to her husband's estate, and be proved unchaste or leave her husband's house to reside permanently with her parents elsewhere, or marry by nikah or karewa any one except a near agnate of her husband, she loses all right to her husband's estate. ' Further on (page 124) it says:-- 'whenever a widow remarries, even if she marry the brother of her deceased husband, she loses her right to her deceased husband's estate, which reverts at once to his agnates (mostly Sikh, Jats, Kumhar, Khatri, Lohar, Bodla, Chishti, Wattu ). If a sonless widow in possession of her husband's estate marries his brother, she is often allowed to remain in possession of her deceased husband's estate for her life time (Bagri Jats, Musalman Jats and Rajputs ). As regards the question of unchastity, there seems to have sprung up a greater laxity. Most tribes now say that unchas-tity does not affect the widow's rights. The following groups however say that unchastity entails forfeiture:-- Among Sikh Jats, Dhaliwals of Moga and Muktsar, Siddhus in Ferozepore, Gils and miscellaneous Jats in Moga and Sandhus and Khosas in Muktsar, and among other tribes -- Bodlas, Nipals and Chishtis in Fazilka. and in Ferozepore Pathans, Arains and Moghals. Note.-- The truth on this point, I think, is that as long as the widow remains in her deceased husband's house and her unchastity is not an open scandal, no one will object As Regards the effect of remarriage, all tribes that admit widow remarriage agree that no matter whom the widow marries, she forfeits all right to her deceased husband's estate. Note.-- Despite the rulings to the contrary that are quoted below, I am convinced that the above answer is a true exposition of the custom. The people when pressed on the point put it as follows:-- the widow on re-marriage ceases to be the widow of her late husband and becomes the wife of the man she has married; she thus forfeits her right, which is really only one of maintenance from the income of the deceased's property. Instances to the contrary will generally be found to be rather of the nature of family arrangements, whereby if the widow has daughters by the previous husband, she may be allowed to retain the whole or a part of the estate till they have been married or where the new husband has already a wife and it is anticipated that the two women may quarrel. Many of the refusals in succession cases to admit that a karewa marriage has taken place are simply due to the belief that ipso facto the widow's rights are extinguished. " The learned Author then discusses the decisions of the Chief Court and cites one hundred and two instances in support of his conclusions. Of those there are nine of Dhaliwal Jats, seven from Moga Tehsil and two from Fazilka Tehsil, appearing at pages 173. 174 and 185. Of those nine instances of Dhaliwal Jats in Ferozepur District, eight are in support of the plaintiffs and one against them. All the seven instances from Moga Tehsil are in support of the plaintiffs. Of the two instances from Fazilka Tehsil one is in their favour and one is against them, that is to say, one instance is in favour of Sada Kaur defendant 1. No instance of Dhaliwal Jats is available from Muktsar Tehsll, but the enquiries of the learned Author as digested at page 106 give an answer even with regard to Dhaliwal Jats of Muktsar Tehsil on the questions posed. It will be seen that so far as the question of remarriage is concerned, all tribes said that remarriage, no matter whom the widow remarries, causes forfeiture of all rights to her deceased husband's estate. Overwhelming instances of other Jats in Ferozepur District are also in support of the plaintiffs and against Sada Kaur defendant 1, as enumerated and listed in this book. Now, apparently Riwaj-i-Am, unless rebutted, is a relevant and strong piece of evidence in support of custom. No doubt, the females were not consulted at the time of preparation of the Riwaj-i-am but in spite of this no substantial evidence to the contrary in the form of sufficient number of instances is available Sri this book which rebuts the presumption of correctness of the custom stated therein.

(3.) THE learned Additional District Judge thus proceeded on this evidence and was of the opinion that the Full Bench decision of this Court reported as Charan Singh Harnam Singh v. Gurdial Singh Harnam Singh. AIR 1961 Punj 301, (FB), was not quite in point because it was a case from another district, that is to say, Ambala District.