DIPA AND OTHERS Vs. GANGA DATT AND OTHERS

JUDGEMENT

(1.) The plaintiff filed a suit against Ganga Datt and others for possession of 7/12th share of land measuring 126 Kanals 11 Marlas which comes to 73 Kanals 16-1/2 Marlas, described in detail in the plaint situate in village Mohana, on the allegations that Ram Kala was the owner of the land, he died eleven years before the institution of the suit and on his death his widow Smt. Pato, defendant No. 4, inherited the property as life estate. She remarried Ganga Datt, defendant No. 1, by Karewa a year after the death of Ram Kala and out of their marriage five children were born to her. On account of this remarriage Smt. Pato lost all her rights in the property in dispute, according to the custom with which the parties are governed. She had made a gift of the land in favour of Smt. Chameli and Smt. Lachhmi, defendants 5 and 6, to whom the land in dispute has been allotted as a result of consolidation proceedings. The plaintiffs claim to be collaterals of Ram Kala and they claim to be entitled to the land because of the forfeiture of the life estate of Shrimati Pato on account of her remarriage or of her becoming unchaste. The plaintiffs have stated that they are not bound by the gift made by her and are entitled to the possession of the land which is ancestral qua them. The suit was resisted by the defendants on various grounds and on the pleadings of the parties the following issues were framed by the learned trial Court :-

(2.) The suit was dismissed by Shri Rajinder Lal Sehgal, Subordinate Judge First Class, Sonepat, on 10th April, 1958, on the finding that Karewa of Shrimati Pato with Ganga Datt had not been proved, that she did not lose any right in the property on account of unchastity and that the land in dispute had not been proved to be ancestral qua the plaintiffs. The plaintiffs filed an appeal in the Court of the District Judge, Rohtak, which was dismissed on 13th March, 1959, on the following findings :-

(3.) At the hearing the learned counsel for the appellants has referred to Question 55 in the Customary Law of Rohtak District, in which it is stated that in the case of Brahmans, proved unchastity forfeits the widow's right in her husband's estate. There is no dispute that by remarriage the widow forfeits her rights. The parties to the suit are Brahmans and on the basis of this recorded custom it is submitted by the learned counsel that even if the remarriage of Smt. Pato with Ganga Datt is not held to be proved, her unchastity has been proved and she forfeited all her rights in the estate of her late husband Ram Kala. It is admitted that no instance has been cited by either of the parties in support of this custom that the unchastity entails forfeiture of the widow's life interest in her late husband's property. It is, therefore, asserted by the learned counsel for the appellant that the onus lay on the defendants to prove that the unchastity did not result in the forfeiture of the widow's estate which they have failed to prove. In support of this argument reliance has been placed on my judgment in Mst. Bahteri and others v. Sher Singh and others, (R.S.A. 567 of 1959 decided on 19th November, 1968), in which I held as under :-