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Ratti Ram Vs. Smt. Basanti and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 29 of 1971
Judge
Reported inAIR1986HP61
ActsPunjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 - Section 3
AppellantRatti Ram
RespondentSmt. Basanti and ors.
Appellant Advocate K.D. Sud and; Deepak Gupta, Advs.
Respondent Advocate Devinder Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredKirtan Sahu v. Thakur Sahu
Excerpt:
- .....on record.3. on the pleadings of the parties, the following issues were framed :(1) whether mst. basanti remarried before the commencement of hindu succession act?if so, its effect? opp. (2) whether mst. basanti had been leading unchaste life as alleged? if so, its effect? opp. (3) whether mst. basanti had abandoned her possession and has not been in possession of the suit property since the death of mathu, her husband? if so, to what effect? opp. (4) relief.4. it may be stated at the outset that the plaintiff did not press issue no. 1 (2?) before the trial court and accordingly the issue was decided against him. mr. deepak gupta, learned counsel for the plaintiff, has also not seriously pressed issue no. 3 and rightly so regarding the abandonment of possession by defendant 1, as the.....
Judgment:

H.S. Thakur, J.

1. This appeal is directed against the judgment and decree passed by the learned District Judge, Shimla, dt. Nov. 27, 1970, affirming the decree and judgment passed by the trial court.

2. Necessary facts relevant to decide this appeal may be stated. Mathu and Mast Ram were real brothers. Mathu died issueless and was survived by his widow Smt. Basanti. The appellant (hereinafter to be referred to as the 'plaintiff') and respondents Bishia and Kewalia (respondents 2 and 3 respectively) are the sons of Mast Ram. Mst. Basanti succeeded Mathu as his widow. The plaintiff filed a suit against respondent 1 Mst. Basanti (defendant 1) and also impleaded Bishia and Kewaliarespondents 2 and 3 as defendants (the respondents shall be referred to hereinafter as the 'defendants') alleging that since defendant 1 had remarried one Sobhu and had also become unchaste after the death of her husband, she had lost all rights in the property inherited by her as a widow of Mathu. It may be pointed out that defendant 2, Shri Bishia died during the pendency of this appeal and his legal representatives have been brought on record.

3. On the pleadings of the parties, the following issues were framed :

(1) Whether Mst. Basanti remarried before the commencement of Hindu Succession Act?If so, its effect? Opp.

(2) Whether Mst. Basanti had been leading unchaste life as alleged? If so, its effect? Opp.

(3) Whether Mst. Basanti had abandoned her possession and has not been in possession of the suit property since the death of Mathu, her husband? If so, to what effect? Opp.

(4) Relief.

4. It may be stated at the outset that the plaintiff did not press issue No. 1 (2?) before the trial court and accordingly the issue was decided against him. Mr. Deepak Gupta, learned counsel for the plaintiff, has also not seriously pressed issue No. 3 and rightly so regarding the abandonment of possession by defendant 1, as the property at the relevant time was joint and the defendant 1 was so recorded in the revenue record.

5. As such, the only issue that survives for determination is whether defendant 1 remarried before the commencement of the Hindu Succession Act or not. The burden of this issue was on the plaintiff. It is not disputed by the learned counsel for the parties, and rightly so, that in case the remarriage took place after the commencement of the Hindu Succession Act, 1956, defendant 1 in spite of her remarriage could not be divested of her rights in the property inherited by her as a widow. It may be pointed out that the said Act came into force with effect from 17th June, 1956. According to the plaintiff, Mathu and Mast Ram were occupancy tenants in the suit land and had one-half share each, therein. Mathu died during the year 1946 and defendant No. 1 widow of Mathu acquired proprietary rights in the share of her husband under thePunjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. The plea of defendants 2 and 3 is that defendant 1 had not remarried and was also not living in unchastity. Defendants 2 and 3 would have got equal right in the property inherited by defendant 1, with the plaintiff, in case the plaintiff succeeded in the suit.

6. The main contention of the learned counsel for the appellant is that the courts below have not properly considered the entries in the Pariwar Register (Copy Ex. PA) and voters' list (copy Ex. PB), wherein Mst. Basanti defendant 1 is entered as the wife of Sobhu. The learned counsel has referred to a Full Bench decision in Kirtan Sahu v. Thakur Sahu, AIR 1972 Orissa 158. In this judgment, it has been held that the electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined in court to prove the same. According to this judgment, it is a public document and is admissible under the Evidence Act. On the same analogy, it is contended by the learned counsel for the appellant that the 'Pariwar' Register which is maintained under the Himachal Pradesh Panchayati Raj Act is admissible in evidence.

7. The case of the plaintiff is that defendant 1 got married to one Sobhu somewhere by the end of 1953 or beginning of 1954. It may be pointed out that in the plaint, it was alleged by the plaintiff that defendant 1 got remarried in 1952. As such, the plaintiff is not certain even about the year of marriage. Defendants 2 and 3 have denied the allegation of remarriage or unchastity against defendant No. 1. Conversely, defendants 2 and 3 have admitted that defendant 1 neither got remarried nor became unchaste. As such, the admission on their part is against their own interest, since in the event of the success of the suit, they were to get equal benefit in the property along with the plaintiff. Accordingly, the admission made by defendants 2 and 3 is of great significance. The learned District Judge has considered the entries as reflected in Exs. PA and PB. After examining the original 'Pariwar' Register, he had found that no serial number had been mentioned against the relevant entry. He hasalso noticed that this entry has been squeezed in, between Sr. Nos. 18 and 19. It is not disputed by the learned counsel for the parties that the entry in the 'Pariwar' Register was made somewhere during the year 1956 and in voters' list during the year 1958. It may also be noticed that the necessary customary or religious ceremonies of the performance of marriage have not been proved. Even specific custom with instances regarding re-marriage have not been pleaded. On the contrary, it has been asserted that it was not necessary to perform any ceremonies, as a widow could leave the house and settle with anyone, which would amount to re-marriage. It is found that the courts below have properly considered the entire evidence on record.

8. In view of the above discussion, I am of the view that the plaintiff has not been able to establish that defendant 1 had either remarried or had become unchaste after the death of her husband. Assuming but without believing that the defendant 1 got remarried and thus became unchaste, it is not established that all this happened before the commencement of the Hindu Succession Act. There is yet another point in favour of defendant 1. The record shows that Mathu and Mast Ram had occupancy rights in equal share in the land. Mathu died during the year 1946 and defendant 1 inherited his rights in the land, and by operation of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, acquired proprietary rights therein. Mutation to that effect was also attested in her favour. As such, the said property became her self-acquired property. There is nothing on record to show that the alleged custom, if any, is applicable to such self-acquired property.

9. The result of the above discussion is that I have no reason to differ with the reasoning and conclusion drawn by the learned District Judge. As such, the appeal is dismissed but in view of the circumstances of the case, the parties are left to bear their own costs.


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