Pathak, C. J. (Actg.)
The appeal is directed against the judgment and
decree passed on 9-11-68 by the District Judge, Cachar, Silchar, in title Suit No. 11 of 1968.
2. The respondents Patrabala Devi, Dharanibala Devi, Ramanibala Devi and Nayanibala Devi filed a suit against the main defendant Rasamani Das, the present appellant for awarding khas possession of the land, houses and cattle etc. described in the schedule 'Ka', 'Kha' and 'Ga' annexed to the plaint on declaration of their title thereto and for other reliefs sought by the plaint in the suit.
3. The plaintiffs' case in short is that they are all daughters of late Raimani Das by his wife Bilashmani. Raimani Das was the owner of 61B. 9K. 8 Chattaks of land in two different villages. Defendant No. 1 Rasamani Das is the son of Raimani Das by his first wife. After the death of his first wife Raimani married Bilashmani Devi, who was a widow. During the lifetime of Raimani Das, he transferred 3B. 18K. and odd land to his son-in-law Surendra Chandra Das, husband of Plaintiff No. 1 Patrabala Devi by a registered deed on 16-4-36. Thereafter on 19-1-38 he transferred 2B-8K-8 Chattaks of land to Ms wife Bilashmani Devi. This land is described in Schedule 'Kha' to the plaint. The remaining lands remained in possession of Raimani till his death about 18 or 19 years before the filing of the suit. At the time of his death he left behind his wife Bilashmani Devi and his son Rasamani by his former wife as his heirs of moveables and immovables. After the death of Raimani his son Rasamani came to the house in the western bhit and for his step mother Bilashmani a C. I. Sheet house was raised on the eastern bhit, Bilashmani used to live in the new house and had a common mess with her step son, Rasamani. Bilashmani died in 1373 B. S, corresponding to 1962-63 A. D. leaving behind the four plaintiffs who are daughters by Raimani as her sole heirs. When the husbands of these four plaintiffs came to cultivate the land left behind by Bilashmani on behalf of the plaintiffs, defendant No. 1 Rashmani resisted the same and threatened them with dire consequences. The plaintiffs also were not allowed to enter the house left by their mother. They were also prevented from taking the moveables. Defendant No. 1 also dispossessed Surendra Chandra Das from the land purchased by his mother-in-law Bilashmani which he used to cultivate on her behalf. Therefore, the plaintiffs have no other alternative than to file the present suit for recovery of the Khas possession of half of the land described in Schedule 'Ka', of the plaint on declaration of their title. They have also prayed for recovery of Khas possession of the land described in Schedule 'Kha' to the plaint on declaration of their title. In Schedule 'Ga' the plaintiffs give a list of the house and the buffaloes and cows over which they claim title and want possession.
4. Defendant No. 1 who is the principal defendant in this suit has contested the suit by filing written statement. His case is that the plaintiffs have no cause of action for the suit; that the suit is not maintainable in the present form; that the suit is barred by limitation and that the suit is under-valued. Defendant No. 1 admits that Raimani Das was the owner of the lands and properties described in the schedule to the plaint. He also admits that the contention of the plaintiffs that Raimani transferred some land to Bilashmani Devi and had the same cultivated by her son-in-law, Surendra Chandra Das. His main case is that Bilashmani Devi, the mother of the plaintiffs was a widow and that after the death of his first wife, Raimani Das took Bilashmani as his wife by a ceremony called -- 'Hamand' or 'Henga'. He has averred that 'Henga' or 'Hamand' marriage is not legal and valid marriage. Further he has stated that a wife of such a marriage never gets the status of a legally married wife and she cannot inherit her husband's property on his death. He has stated that the defendant's father Raimani died in 1938 and so the plaintiffs who are the daughters of Bilashmani by Raimani have no right to get any property left behind by Raimani Das. As far as. however, of some land shown in schedule 'Kha' is concerned, it is averred that at the time of its transfer to Bilashmani on 19-1-38 by Raimani, it was verbally agreed that Bilashmani would enjoy the same for her life and that after her death it would go back to the answering defendant and according to this arrangement Surendra Das who used to cultivate the land, relinquished possession in favour of the answering defendant after the death of his mother-in-law. He has further averred that Bilashmani was never in possession of any part of Baimani's property after his death and that she lived with her son-in-law Surendra Chandra Das and died in his house and as such she cannot become entitled to any property left behind by Raimani under the provisions of the Hindu Succession Act.
5. On the pleadings of the parties as many as 15 issues were framed. However, the main challenge to the suit was made on two counts: The first challenge to the suit was the factum of the 'Henga' marriage between Bilashmani and Raimani. The second challenge was that even if Henga marriage was performed the woman becoming a wife under the customary Henga marriage is not entitled to any inheritance.
6. During the trial seven witnesses were examined on behalf of the parties and on consideration of the evidence on record the plaintiffs' suit was decreed declaring the plaintiffs' right, title and interest to half of the properties left by Raimani Das and also giving a declaration that the plaintiffs are entitled to joint possession with the answering defendant No. 1 in respect of the invaluable property including houses and the suit property left by Raimani Das. The defendant being aggrieved by the judgment and decree has preferred this present appeal.
7. Mr. A. M. Majumdar, the learned counsel for the appellant submits that the trial Court was wrong in holding that there was a 'Henga' marriage between the father of the appellant and his stepmother Bilashmani. The second submission of Mr. Mazumdar is that even if there was a 'Henga' marriage between the appellant's father and Bilashmani, she was not entitled to any inheritance after the death of his father because according to the custom a Henga wife is not so entitled On the other hand. Mr. B. Sarma, the learned counsel for the respondents joins issue in the above submissions.
8. The fact that the 'Henga' or 'Hemand' marriage is prevalent in the community to which the parties belong, has been amply proved by the evidence of the witnesses. 'Henga' or 'Hamand' marriage is a customary marriage between widow and widower or divorcees. According to the evidence of the witnesses, this is prevalent among the community to which the parties belong. Plaintiff No. 1 has stated that after the death of her mother's previous husband, her father Raimani performed Hamand marriage with her mother Bilashmani. D. W. 1 Raj-kul Mandal aged 80 years has stated that he belonged to Mahashya, i. e. Patni community. In their community 'Hamand' or 'Henga' marriage is prevalent. He has stated that Hamand is performed without the formalities of an ordinary marriage. He has stated that Hamand wife is a concubine (Rakshita). He has further stated that he has never heard of unmmaried girl being party to Hamand. He further states that Hamand marriage is completed in course of a single day. The 'guru puro-hit' (priest) comes, the 'Sapta pradakhina' is performed and the ceremony is finished in just one sitting. Such ceremonies as 'Adhibasha', 'Basibibana', 'Chathurtha mangala' and 'Chata snana' etc. are not observed in Henga wedding. He has stated that when the husband of Henga marriage dies, his Henga wife observes 'Habisha' if she does not have children and does not do it if she has any.
9. P. W. 2, Dulal Ram Das, aged 80 years has stated that the parties to the suit belong to the same lineage, that is to say he is an agnate of the parties. He has stated that Hamand marriage or Henga marriage was prevalent among their community. He has said that Bilashmani was married to Raimani according to Henga or Hamand form of marriage.
10. D. W. 1 Rupeswar Das, who is the son of the main defendant No. 1, aged 44 years, has stated that the Hamand or Henga form of marriage is in vogue in their society. D. W. 2 Rashbihari Das has stated that he belonged to the Patni Mahi-shya Das Community, to which the plaintiffs and the defendant to the suit belong. He has stated that Hamand or Henga marriage is in practice amongst them. Similarly, D. W. 4 Tairaman Biswas aged 75 years and D. W, 5 Nabakishore Das aged 84 years, have stated that 'Hamand' or 'Henga' marriage is in vogue in their society. Therefore, from the evidence on record there is no manner of doubt that 'Henga' or 'Hamand' form of marriage is prevalent in the community of the parties to which they belong. (It may be noted that a similar form of customary marriage known as 'Dhemna'' where the wife of such marnage is knows as 'Dhemni' is prevalent in some parts of Brahmaputra Valley among certain communities which is judicially noticed in Baliram v. Ugramal, reported in 2 Un-reported Cases (Assam) 27).
11. Now the main question that has been contended on behalf of the appellant is that there is no evidence on record to show that Bilashmani was married by Raimani according to 'Henga' form of marriage. The learned counsel has contended that, the factum of marriage has not been established by any evidence on record. From a perusal of the pleadings as well as on scrutiny of the evidence on record, we are satisfied that Bilashmani was married by Raimani in the 'Henga' form of marriage. The main defendant (the present appellant) Rasamani Das has not come to the witness box in support of his contention raised in his written statement. But on a perusal of the written statement filed by him it is crystal clear that Bilashmani was married by his father according to 'Hamand' form of marriage. He has stated in his written statement in the following clear terms:--
'After the death of the mother of defendant No. 1, his father as a widower married, according to their then prevalent social customs, Bilashmani, the plaintiffs' mother for the ' second time when the latter was a widow.'
In view of the aforesaid averment made by the appellant, he cannot now be allowed to raise the contention that Bilashmani was not married according to the 'Henga' custom of marriage. Further none of the witnesses appearing on behalf of the defendant has stated that Bilashmani was not married to Raimani according to 'Hamand'. Plaintiff No. 1 has categorically stated that her mother was married to Raimani according to the customary form of 'Hamand' marriage. Similarly her husband P. W. 11 has stated that his father-in-law had performed a 'Henga' or 'Hamand' form of marriage with his mother-in-law. Similarly is the evidence of P. W. 2 Dulal Ram Das, who has stated that after the death of his wife Raimani married Bilashmani according to 'Hamand' custom of their clan. His categorical statement is that according to the custom of their clan Raimani had performed 'Hamand' with Bilashmani. From the materials on record and also for the reasons stated above, we have no hestita-tion to hold that the first contention raised on behalf of the appellant is without any merit.
12. Regarding the second contention raised on behalf of the appellant, it has been submitted that even if Bilashmani was married to Raimani according to 'Henga' custom, she was not entitled to succeed to the property of her husband on his death. The learned counsel has drawn our attention to the evidence of the witnesses on behalf of the defendant who have stated that a 'Hamand' wife is not pntitled to inherit her husband's property on his death. He has drawn our attention to the evidence of Rajkula Mandal, Witness No. 1 for the defendant examined on commission, who has stated that a Hamand wife is not entitled to inherit but he cannot give any illustration of such a practice. He has categorically stated --'I do not know if a Hamand wife has inherited her husband's property on his death'. Although, he has stated that he is the leader of their community and aged about 80 years, he does not know about the custom of inheriting by a Hemand wife, the property of her deceased husband. D. W. 1 Rupes-war has stated that the children of a Hamand marriage are entitled to inheritance to their father's property but the 'Hamand' wife is not entitled to her husband's property. But this witness also cannot give any example to show that a Hamand wife does not get her husband's property. Similarly, D. W. 2 Rashbihari Das, has stated that the childen by a 'Hamani' marriage are entitled to get their father's property but the 'Hamand' wife is not entitled to inherit her husband's property. Similarly, D. W. 4 and D. W. 5 have stated that a Hamand wife is not entitled to her husband's property. But on the other hand, it has been categorically stated in his cross-examination by P. W. 2 Dulal Ram Das, aged 80 years, whose evidence we have already adverted to that 'It is not a fact that 'Hamand' wife is not entitled to her husband's property.'
13. Be that as it may, the legal position is that the entitlement of Bilashmani to get inheritance to the property of her deceased husband was based on the provision of the Hindu Women's Rights to Property Act, 1937 (as amended) -- hereinafter referred to as 'the Act' -- as Raimani died after the commencement of the aforesaid Act. 'The Act' was passed with a view to amending the Hindu Law to give better rights to women in respect of the property. Under the Hindu Law, as it originally stood, if the husband died undivided from the other members, his other coparceners including his father and brother became entitled to his interest by survivorship and the widow had only a right to maintenance. If a Hindu husband died leaving even self-acquired property or properties which he got on division from his brothers, or with his sons, his sons became heirs under Hindu Law to the exclusion of the widow. It was to remedy this injustice that the Hindu Women's Right to Property Act, 1937 as amended by 1938 Act was passed. The measure was intended to redress disabilities and 'to' give better rights to women'. It was ameliorative in character and enacted to carry out important social reform. It introduced far-reaching changes in the law of succession and was obviously intended to give better rights to women by recognising their claim to fair and equitable treatment in certain matters of succession. (See Mulla's Hindu Law--12th Edition page 104 and Hindu Law by D. Fathak, Third Edition page 186).
14. The main features of the Act are:--
(i) When a Hindu governed by Daya-bhaga Law dies leaving any property and when a Hindu governed by any other school dies leaving separate property.
(a) A widow along with the sons is entitled to the same share as the son.
(b). A predeceased son's widow inherits in like manner as the son, if there is no son surviving of such predeceased son; and in like manner as son's son if there is surviving a son or son's son of such predeceased son.
(c). The same provision applies mutatis mutandis to the widow of a predeceased son of a predeceased son.
(ii) In the case of a Mitakashara joint family the widow takes the place of her husband.
15. In the present case the parties are governed by Dayabhaga law. Therefore Bilashmani's entitlement is under Section 3 of 'the Act'. Though 'the Act' gives a widow the statutory entitlement to inherit yet she gets only a limited interest which is defeasible on her death or remarriage. We are unable to accede to the contention raised on behalf of the appellant that there is a custom by which the Henga wife is disentitled to inherit We are of opinion that once the marriage is performed in the 'Henga' form she gets the wife-hood or the status of a wife and in such a case all the incidents, referable to a wife including her right of inheritance must be held to be applicable. However, even assuming that there was some contra custom, after the commencement of 'the Act' such custom must be held to be over-riden. The law on the point is quite clear as provided under Section 2 of 'the Act'. Section 2 clearly provides that -- 'Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate.' In view of the aforesaid statutory provision we do not find any substance in the contention raised on behalf of the appellant. Bilashmani died after the com-mencement of the Hindu Succession Act, 1956 and in view of the provision of Section 14 of the Hindu Succession Act, the property: that devolved on her on the death of her husband which was held by her as limited estate ripened into absolute estate to which the plaintiffs are legally entitled to succeed on her death.
16. In view of the aforesaid reason, we do not find any valid ground for interfering with the judgment and decree passed by the learned trial Court. The appeal is without merit and the same is dismissed. But in view of the relationship of the parties to the proceeding, we leave the parties to bear their own costs.
K.N. Saikia, J.