DILU Vs. DHANI RAM
LAWS(HPH)-1991-7-8
HIGH COURT OF HIMACHAL PRADESH
Decided on July 26,1991

Dilu Appellant
VERSUS
DHANI RAM Respondents

JUDGEMENT

DEVINDER GUPTA, J. - (1.) THIS is plaintiff's appeal against the judgment and decree passed on April 28, 1983, by Additional District Judge, Kangra Division at Chamba, allowing the defendant's appeal and dismissing the plaintiffs suit thereby reversing the judgment and decree passed on March 30, 1981, by Senior Sub Judge, Chamba, decreeing the plaintiffs suit. The appeal was admitted for hearing on July 21, 1983 but at the time of its admission no substantial question of law was formulated. As per the memorandum of appeal one of the substantial question of law arising is whether the judgment of the lower appellate Court is vitiated due to non consideration of material evidence and misreading of the same. The other is whether the plea of customary marriage was made out from the pleadings of the parties and stood proved from the circumstances on record.
(2.) PLAINTIFF filed a suit for grant of decree for declaration that she being the widow of Swaran had succeeded to his estate exclusively and defendant had no right title and interest. Attestation of mutation of inheritance by the revenue authorities was bad in law and the same was ineffective and inoperative against her rights. As a consequential relief, she claimed a decree for confirmation of her possession as such. In the alternative, it was prayed that in case it was held that she was out of possession, decree for possession be granted. According to the averments made in the plaint, the suit property was owned by one Swaran son of Inder, who died in the month of November 1976 leaving behind plaintiff as his widow. She claimed that after the death of her previous husband Hira, Swaran had duly taken her as his wife as per the custom of the Illaqa and Biradari. Even the two minor daughters of the plaintiff from the loins of her previous husband, namely, Km. Leela and Km. Sita were treated and maintained by Swaran as his daughters. The marriage of Leela was performed by him by treating her as his own daughter and she (the plaintiff) was always treated by the deceased as his wife and as such being his widow she had rightly inherited his estate and was entitled to continue as such. The defendant by misstating the facts and in connivance with the revenue authorities got the mutation of inheritance of the estate of deceased entered and attested in his favour behind her back, which had conferred no right, title or interest on him and on that basis was trying to interfere with her rights. Attestation of mutation on April 21 1977, had given rise to a cause of action to her to file the suit, which was filed on June 16, 1978. The suit was contested by the defendant, who denied the status of the plaintiff as widow of deceased and even denied the performance of marriage in accordance with the custom of illaqa, namely, Jhanjrara form with the deceased, after the death of Hira. Defendant also denied that the deceased considered Leela and Sita as his daughters or that the plaintiff was in occupation of the estate left by deceased. It was pleaded by the defendant in the written statement that one of the daughters of plaintiff, namely, Naro was married to him eight years ago. The deceased was his maternal uncle. Due to Naro's marriage with him, it was not permissible for the plaintiff to have entered into any marital tie with his maternal uncle and there was no possibility of plaintiff having married the deceased prior to Naro's marriage with him. Had such a marriage been performed, it was not permissible for the deceased and plaintiff to give Naro in marriage to him because such a marriage with maternal uncle's daughter is prohibited in the Illaqa.
(3.) THE Trial Court decreed the plaintiffs suit, after it came to the conclusion that plaintiff had proved that she was taken in Jhanjrara form of marriage by the deceased after the death of her previous husband, after such marriage both deceased and the plaintiff had been living together as husband and wife and the deceased even performed the marriages of the daughters of the plaintiff. The Trial Court also raised presumption in favour of marriage between plaintiff and deceased due to their long cohabitation. It also found the plaintiff to be in possession of the property. Feeling aggrieved, the defendant took the matter in appeal. The lower appellate Court reversed the findings of fact by allowing the appeal and dismissed the suit of the plaintiff. The reasons which prevailed with the lower appellate Court were that had Jhanjrara form of marriage taken place between plaintiff and Swaran, he would not have married plaintiff's daughter with defendant, who was his sister's son. It further held that the necessary ceremonies essential for Jhanjrara form of marriage were not proved to have been performed. Adverse inference was drawn against plaintiff in not having produced document know as Khewat drawn at the time of marriage. The evidence produced by plaintiff was held to be highly interested. It also found that there was no evidence produced on record to warrant a conclusion that plaintiff and deceased had been living together for long or that they were treated as husband and wife. Document Ex.PD, extract from birth and death register was not considered as relevant piece of evidence. It held that entry in the register was made somewhere in the year 1973 74 and not in 1970. This document was also held not to have been proved in accordance with law. The plaintiff has now preferred this Second Appeal.;


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