DILE RAM Vs. KAPOORI DEVI

JUDGEMENT

(1.) The case of the appellant who was plaintiff in the trial Court was that the suit property belonged to his father Hari Singh and on his death somewhere in the year 1956, a mutation was entered in favour of his three sons, namely, the plaintiff, second defendant Ishwar Singh and another brother Tulsi Ram According to the plaintiff, that Tulsi Ram was not heard of from 1950. The first defendant in the suit who is first respondent before us is admittedly wife of Tulsi Ram. The plaintiff stated that she had remarried the second defendant in the form of Jhanjrara marriage and she had also be got three children for him Ft is also stated in the plaint that the first defendant was guilty of unchastity and therefore she lost her right to succeed to the property of her husband under the customary law which prevailed in that area before the passing of Hindu Succession Act On that footing, the plaintiff prayed for a declaration that the first defendant on account of her remarriage with the second defendant and account of her unchastity giving birth to three children for the second defendant ceased to have any right, title or interest in the suit property.

(2.) The defendants contested the suit The first defendant raised the contention that there was no marriage between her and second defendant and after her husbands whereabouts were not known she was living with the second defendant who was the brother of her husband. She admits having borne three children for the second defendant, but according to her the Customary Law did not prevent her from succeeding ib the estate of her husband Tulsi Ram, whose whereabouts were not known from 1950 It is also stated by her that after the mutation entered in favour of three sons of Had Singh in the year 1956 there was a subsequent mutation in 1979 by which her name was included in the place of her husband Tulsi Ram Consequently it was contended that even under the provisions of Hindu Succession Act, she was entitled to succeed to her husbands estate

(3.) The trial Court while considering the question whether there was a marriage between the first defendant and the second defendant took a view that the evidence adduced by the plaintiff was not sufficient to prove Jhanjrara form of marriage between the two defendants. However, the trial Court proceeded to draw a presumption of marriage in view of long cohabitation of defendants and 2 from the year 1952. On the basis of such presumption the trial Court held that there was a marriage between the defendants 1 and 2, However, the trial Court proceeded to discuss the question of succession by referring to the Customary Law which prevailed previously in that area After setting out question No 47 in the "Customary Law of Kangra District excluding Kulu published by L. Middleton, Settlement Officer, Kangra District, the trial Court proceeded to hold that she had not lost her right to succeed to the property under the said law. The trial Court also placed reliance on the provisions of section 4 of the Hindu Succession Act and held that the Customary Law had been abrogated by the said Act.