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Hardayal and ors. Vs. Mst. Dakhan - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 32 of 1948
Reported inAIR1953P& H209
AppellantHardayal and ors.
RespondentMst. Dakhan
Appellant Advocate D.N. Aggarwal and; Rajinder Nath Aggarwal, Advs.
Respondent Advocate Hira Lal Sibal, Adv.
DispositionAppeal dismissed
Cases ReferredMoniram Kolita v. Kerry Kolitany
Excerpt: there is a reported judgment which goes against the recorded riwaj-i-am and it is -fateh singh v. this note clearly means that if she were to cohabit with an agnate of her husband it would not be sufficient evidence of this court. soni, j. 12. in this case dakhan after the death, of harsukh began to live with nanu. nanu's father is dungar the plaintiff. dungar is the real brother of, harsukh's father. dungar brought a suit saying that dakhan after harsukh's death had lost her interest in the estate because she had married nanu. no marriage with nanu has been proved. dungar's allegation is that she has lost the estate because of her unchastity even though the unchastity is alleged to have taken place after the estate had vested in dakhan. i doubt whether if a woman after her husband has died lives with another and with him alone she can be said to be unchaste except in a most technical sense of the word. the note given under the answer to question no. 15 says that if a widow cohabits with any but.....

Kapur, J.

1. This is a plaintiff's appeal against an appellate decree of District Judge Balak Ram dated 7-10-1947 reversing the decree of the trial Court whereby the suit of the plaintiff had been decreed.

2. The parties to the case are kumhars of Sirsa Tehsil. Mussammat Dakhan is the widow of Harsukh who died before the year 1930. Dungar plaintiff is the real uncle (father's brother) of Harsukh deceased. On 30-94932 a suit was brought by Musmmmat Dakhan for possession of 46 bighas 11 biswas of land situate in Mauza Chakkan in the Tehsil of Sirsa against Dungar. His defence was that Mussammat Dakhan had lost her right to the property as she had remarried Nanu, son of Dungar plaintiff, and in the alternative that she was unchaste. This suit was decreed and it was held by the learned Subordinate Judge that remarriage was not proved nor was unchastity established.

3. On 13-7-1944 Dungar brought a suit for declaration that he was owner by adverse possession of 25 Bighas 8 Biswas in Mauza Gandran and 43 Bighas and 10 Biswas in Mauaa Chakkan. He also sued for declaration that Mussammat Dakhan had contracted 'karewa' marriage with Nanu, the plaintiff's son, & had also become unchaste & had thereby lost her right to possession of the estate of her husband Harsukh. The defence was that there was no remarriage and that she (Mussammat Dakhan) was carrying on a liaison with Nanu, son of Dungar, and therefore there was no forfeiture of the estate. The trial Court held that remarriage had not been proved, that according to the statement made by the widow she was unchaste with Nanu and others, that unchastity had been proved and that adverse possession of the land in Mauza Chakkan had been established. On appeal being taken to the District Judge, he held that unchastity had been proved and that under custom by which the parties were governed the widow was not divested of her estate and that adverse possession had not been proved. The plain-tiff has come up in appeal to this Court.

4. The appellant submits that according to question No. 15 of the Riwaj-i-am of Sirsa notorious unchastity results in forfeiture of the estate by a widow. Question 15 and relevant portions of the answer to this question appear at page 123 of the Riwaj-tarn of Sirsa and are as follows: 'Question 15.-- What is the effect of unehastity upon the right of a widow in respect of the estate of her deceased husband? In the ca-se of widows who are not Hindus, what is the effect of their remarriage?

'Answer 1 5:'

(a) If a soilless widow have succeeded to her husband's estate, and be proved unchaste, or leave her husband's house to reside permanently with her parents or 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. (All tribes).

Note : If a widow bear an illegitimate child, or cohabit with any but an agnate of her husband, or elope from her home with any stranger, this is sufficient evidence of unchastity. All agree in saying that in such a case, or in the case of a widow's marrying any but an agnate of her husband, she must give up land, house, and moveables of all kinds, even clothes and ornaments, and take away with her only the garments necessary for decent covering.'

It is further stated that according to Kumhars even if she were to marry a brother of her deceased husband, a widow would lose her estate. In the present case, it is proved that Mussammat Dakhan has had children by Nanu and the question to be decided is whether she forfeits her estate because of this fact. According to the general custom of the Punjab which is contained in para. 31 of Rattigan's Digest of Customary Law, which has been described by their Lordships of the Privy Council as a book of unquestioned authority in the Punjab in -- 'Mt. Subhani v. Nawab', AIR 1941 PC 21 (A), the position is as follows:

'31. Amongst Hindus generally, and less frequently amongst Muhammadans, uncondoned adultery in the husband's lifetime deprives a widow of her right to succeed to his estate; and her unchastity as a widow sometimes causes a forfeiture of her life interest in that estate. But the onus is on those who assert the existence of a custom sanctioning forfeiture.'

At p. 163, the learned author of Rattigan's Digest has stated that the general custom of the Punjab undoubtedly is against such forfeiture, and the onus is on those asserting a special custom to the contrary, i.e., p, special custom sanctioning forfeiture of the life-estate by reason of unchastity of a widow.

5. The principles which have to be kept in view in dealing with questions of customary law have recently been stated by their Lordships of the Supreme Court in -- 'Gokul Chand v. Parvin Kumari', AIR 1952 SC 231 (B). It has there been laid down that :

(1) There is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him see --'Daya Ram v. Sohal Singh', 110 P R 1906 P. 390 at. p. 410 (FB) (C); -- 'Abdm Hussain Khan v. Mt. Bibi Sona Daro', AIR 1917 PC 181 (D).

(2) In order to prove custom all that is necessary to prove is that the usage has been actedupon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality -- see -- 'AIR, 1941 PC 21 (A).

(3) Custom may be proved by general evidence or by a public record of custom such as the Riwaj-i-am or Manual of Customary Law (see -- 'Ahmad Khan v. Mt. Clianni Bibi', AIR 1925 PC 267 at p. 271 (E)).

(4) No statutory presumption attaches to the contents of a Riwaj-i-am, but as it is a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of a particular custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities: see -- 'Saleh Mohammad v. Zawar Hussain', AIR 1944 PC 18 (F) and --'AIR 1941 PC 21 at p. 25 (A)'.

(5) The opinions expressed by the Compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject are entitled to weight which will vary with the circumstances of each case. The only safe rule in regard to the weight to be attached to the compiler's remarks is that if they represent his personal opinion or bias and detract from the record of long-standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation they would be given, due weight see --'Narain Singh v. Mt. Basant Kaur', AIR 1935 Lah 419 at p. 421 (G); -- 'Khadam Hussain v. Mohammad Hussain', AIR 1941 Lah 73 (H).

6. As far as the Riwaj-i-am of Sirsa is concerned, there is nothing to show that any women,' were called when the Riwaj-i-am was compiled. Nor it there any proof that this custom has the sanction of long usage nor are there any instances in support of this custom. I am well aware that the rule has been followed so far as that custom has presumptive evidence even where it is not supported by instances, but in the present case there is a reported judgment which goes against the recorded Riwaj-i-am and it is -- 'Fateh Singh v. Kalu', 107 Pun Re 1888 (I), which is a Judgment by Plowden and Burney JJ. plowden J. has there observed :

'The Riwaj-i-am states that if unehastity (badehalni) of a widow, on whom her husband's estate has devolved, be proved, or if she quits her husband's house, or marries a stranger, the estate is taken out of her possession, and her name is removed. No precedent is cited in the Riwaj-i-am. Some of the witnesses of the parties supported the plaintiff; contention; the witnesses before the commission were divided as to the custom. No instance of forfeiture was cited by any witness At the hearing the appellants could cite one instance, and that occurred subsequently to the decision in the present suit.'

The learned Judge went on to say that there is no general custom in the Punjab by which a Hindu widow forfeits her husband's estate, when vested in her, by an act of unchastity and he referred to -- 'Mt. Ehurian v. Mt. Puran', 105 Pun Re' 1885 (J), -- 'Karam Dad v. Mt. Begam', 118 Pun Re', 1884 (K); -- 'Mt. Geli Bai v. Gela Ram', 158 Pun Re 1885 (L) and -- 'Mam Raj v. Bhola', 78 Pun Re 1869 (M). In his note, which is appended as addendum to the General Code of Tribal Custom of the Sirsa District by Mr. C. M. King, dated 2-4-1903, two cases are referred to where customary law in regard to the forfeiture of estate on account of unehastity was not followed. One is the reported judgment in -- '107 Pun Re 1888 (I) and the other is'-- 'Civil Appeal No. 898 of 1893 (N). decided by the Chief Court of the Punjab. The parties to these cases were Muhammadan Rajputs and the widow was delivered of an illegitimate child more than two years after the death of her husband. The Chief Court again held that the mere fact of unehastity was not sufficient to divest the widow of an estate which had vested in her.

7. Reference may here be made to the cases which were relied upon by Plowden J. in his judgment, -- '158 Fun Re 1883 (L)'; -- '118 Pun Re 1804 (K)'; -- '105 Pun Re 1885 (J)' and -- '78 Part Re 1869 (M)'. The first is -- '158 Pun Re 1883 (L). This was a case from Multan and it was observed in this case that no case had come up for decision in which it was held that there was a general custom in favour of forfeiture of estates on the unchastity of a widow. The next case is -- '105 Pun Re 1885 (J)', which was a case from Delhi of Ahirs. It was held in this case that no general custom existed in the Punjab making forfeiture of a widow's estate the result of unchastity on the part of a Hindu widow. It was also held in this case that there was no forfeiture. The third case relied upon is -- '118 Pun Re 1884 (K)', which was a case of Chima Jats of Gujrarwala District. It was held that a special custom whereby a widow could be deprived of her husband's estate on account of unchastity had not been proved.

8. Counsel for the appellant has relied upon three judgments, the first one of which is --'Mahsian. v. Mt. Purbho', AIR 1930 Lah 504 (O). That was a case of a Brahman widow and was decided in accordance with customary law of Kangra District according to which the unchastity of a widow involves the forfeiture of her estate, but the point which seems to have been argued in that case was not whether unchastity would involve forfeiture but whether where unchastity was proved a widow was entitled to maintenance. Sir Shadi Lal C. J. held that unchastity involved forfeiture and as more than 12 years had passed the widow had completed her title to widow's estate. The next case relied on is a case from Gurgaon, -- 'Bhajna v. Mt. Bheoli', AIR 1932 Lah 177 (P), which was decided on the question of onus, Addison J. there held that the Riwaj-i-am being in favour of forfeiture with regard to Ahir Widows the onus of rebutting the correctness was upon the widow. The question as to what was the general custom of the Punjab was not discussed in that case.

9. Similarly the next case relied upon is -- 'Mt. Rajji v. Bhana', AIB 1934 Lah 824 (Q), which again was a case of Sainis of Hoshiarpur District decided by Hilton J. The decision Went on the question of onus.

10. None of the cases mentioned above is in my opinion of much assistance to the appellant.

11. The parties are Hindus and according to a decision of their Lordships of the Privy Council in -- 'Moniram Kolita v. Kerry Kolitany', 7 Ind App 115 (PC) (R), a widow who has succeeded to the estate of her husband cannot be divested of that estate because of her subsequent unchastity. It was for the plaintiffs to set up andprove a special custom. No doubt a custom has been set up and in support of that custom reliance is placed on an entry in the Riwaj-i-am of Sirsa Tahsil which is contained in question No. 13 at page 123 of that Riwaj-i-am. But this entry goes counter to the general custom which is contained in Rattigan's Digest in Para. 31 and even in regard to Sirsa there are two reported cases, which I have mentioned above, according to which a widow does not forfeit her estate because of unchastity. I am, therefore, of the opinion that the onus which according to law was on the plaintiff has not been discharged and he cannot succeed. I may here add that the person with whom the widow was supoosed to be living in adultery was Nanu son of Dungar, and Dungar should not be allowed to take advantage of this fact. In another case of Punjab, it was held by this Court that if the adultery was with the collateral who subsequently claimed the estate because of that adultery, such collateral would be estopped. Although the case is not analogous, it would not be right for Courts to give a decree in favour of Dungar in the circumstances of the present case. I would therefore dismiss this appeal but leave the parties to bear their own costs in this Court.

Soni, J.

12. In this case Dakhan after the death, of Harsukh began to live with Nanu. Nanu's father is Dungar the plaintiff. Dungar is the real brother of, Harsukh's father. Dungar brought a suit saying that Dakhan after Harsukh's death had lost her interest in the estate because she had married Nanu. No marriage with Nanu has been proved. Dungar's allegation is that she has lost the estate because of her unchastity even though the unchastity is alleged to have taken place after the estate had vested in Dakhan. I doubt whether if a woman after her husband has died lives with another and with him alone she can be said to be unchaste except in a most technical sense of the word. The note given under the answer to question No. 15 says that if a widow cohabits with any but an agnate of her husband, this is sufficient evidence of unchastity. This note clearly means that if she were to cohabit with an agnate of her husband it would not be sufficient evidence of unchastity. The custom recognizes unchastity of a peculiar kind only. A woman is unchaste if she cohabits with people who are not agnates of her husband. In, my opinion, there is no evidence to show that Dakhan has been cohabiting with anybody except Nanu and it ill-befits Nanu's father Dungar the present plaintiff, to allege that she has become unchaste. The reason why Dakhan did not have any ceremony of marriage with Nanu is obvious and that is that she does not want to lose her interest in the land. For this very reason she made a false statement that she had been living with others besides Nanu, a statement which I am not prepared to believe and which has been made merely to save the loss of her interest in the land. As my learned brother has pointed out a custom of this kind which is at variance with the general custom of the Province and which is at variance with Hindu Law on, the subject will have to be strictly proved. The evidence led in this case does not prove such a variation from the general custom or from the Hindu Law. I therefore agree with the order proposed by my learned brother that this appeal must be dismissed.

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