- (1.) The plaintiff filed a suit against Ganga Datt and others for possession of 7/12th share of land measuring 126 Kanals 11 Marlas which comes to 73 Kanals 16-1/2 Marlas, described in detail in the plaint situate in village Mohana, on the allegations that Ram Kala was the owner of the land, he died eleven years before the institution of the suit and on his death his widow Smt. Pato, defendant No. 4, inherited the property as life estate. She remarried Ganga Datt, defendant No. 1, by Karewa a year after the death of Ram Kala and out of their marriage five children were born to her. On account of this remarriage Smt. Pato lost all her rights in the property in dispute, according to the custom with which the parties are governed. She had made a gift of the land in favour of Smt. Chameli and Smt. Lachhmi, defendants 5 and 6, to whom the land in dispute has been allotted as a result of consolidation proceedings. The plaintiffs claim to be collaterals of Ram Kala and they claim to be entitled to the land because of the forfeiture of the life estate of Shrimati Pato on account of her remarriage or of her becoming unchaste. The plaintiffs have stated that they are not bound by the gift made by her and are entitled to the possession of the land which is ancestral qua them. The suit was resisted by the defendants on various grounds and on the pleadings of the parties the following issues were framed by the learned trial Court :- 1. Whether the plaintiffs and defendants 1 to 3 are the collaterals of Ram Kala deceased ? If so, in what degree ? 2. Whether defendant 4 has contracted any Karewa with defendant 1 ? If so, when ? 3. Whether defendant 4 became unchaste after the death of Ram Kala ? 4. Whether the parties to this litigation are governed by the customary law in the matter of alienation and succession ? If so, what are those customs ? 5. If issue 4 is proved, what is the effect of Central Act No. 30 of 1956 on that custom ? 6. Whether by virtue of the provisions of the Central Act No. 30 of 1956, defendant 4 has not lost any right in the suit property, by Karewa or unchastity, if the same are proved in issues 1 and 2 ? 7. Whether defendants 5 and 6 are legitimate daughters of Ram Kala and defendant 4 ? 8. Whether the suit-land is ancestral qua the plaintiffs, defendants 1 and 3 and the deceased Ram Kala ? 9. If issue 7 is proved and issue 8 is not proved, whether the plaintiffs have a locus standi to bring this suit ? 10. If issues 7 and 8 are proved, whether the gift in question is tantamount to acceleration of succession ? 11. Whether the gift in question is tantamount to valid acceleration of succession ? 12. If issues 4, 7 and 8 are proved and issues 10 and 11 are not proved, is the gift in question valid ? 13. If issue 12 is not proved, whether the gift in question is invalid ? 14. Relief.
(2.) The suit was dismissed by Shri Rajinder Lal Sehgal, Subordinate Judge First Class, Sonepat, on 10th April, 1958, on the finding that Karewa of Shrimati Pato with Ganga Datt had not been proved, that she did not lose any right in the property on account of unchastity and that the land in dispute had not been proved to be ancestral qua the plaintiffs. The plaintiffs filed an appeal in the Court of the District Judge, Rohtak, which was dismissed on 13th March, 1959, on the following findings :- 1. That the remarriage of Shrimati Pato with Ganga Datt had not been established although it was established that they were having illicit connections as a result of which five illegitimate children were born to Shrimati Pato, three of whom were living; 2. that the land in suit is her self-acquired property; 3. unchastity is no ground to determine her rights; and 4. even if remarriage of Smt. Pato by Karewa had been established, the plaintiffs have no locus standi to claim the property because they have failed to prove that it was ancestral qua them. Aggrieved from that decree the plaintiffs have filed the present appeal in this Court.
(3.) At the hearing the learned counsel for the appellants has referred to Question 55 in the Customary Law of Rohtak District, in which it is stated that in the case of Brahmans, proved unchastity forfeits the widow's right in her husband's estate. There is no dispute that by remarriage the widow forfeits her rights. The parties to the suit are Brahmans and on the basis of this recorded custom it is submitted by the learned counsel that even if the remarriage of Smt. Pato with Ganga Datt is not held to be proved, her unchastity has been proved and she forfeited all her rights in the estate of her late husband Ram Kala. It is admitted that no instance has been cited by either of the parties in support of this custom that the unchastity entails forfeiture of the widow's life interest in her late husband's property. It is, therefore, asserted by the learned counsel for the appellant that the onus lay on the defendants to prove that the unchastity did not result in the forfeiture of the widow's estate which they have failed to prove. In support of this argument reliance has been placed on my judgment in Mst. Bahteri and others v. Sher Singh and others, (R.S.A. 567 of 1959 decided on 19th November, 1968), in which I held as under :- "It is thus clear that it is not the universal view that the entry in the Riwaj-i-am should not be given any importance if it is not supported by instances. On the basis of the entry in the Riwaj-i-am a presumption does arise in favour of the custom stated therein and this custom being confined to the district or the tribe to which it relates, will serve as a special custom which will prevail against the general custom as stated in para 31 of Rattigan's Digest of Customary Law." In reply, the learned counsel for the respondents has stated that Ram Kala held the land in suit as an occupancy tenant and after his death the succession to his occupancy rights is governed by the provisions of Section 59 of the Punjab Tenancy Act and not by any other rules of succession under the personal law or the customary law and for this reason the Court has to confine itself only to the provisions of Section 59 for determination of the successor of the occupancy tenant who has died. According to clause (b) of sub-section (1) of Section 59, the widow has the right to succeed to the occupancy rights and she can retain the same till her death or remarriage or abandonment of the land by her. This section does not speak of any unchastity. Remarriage with Ganga Datt not having been proved, Smt. Pato continued to hold the occupancy right in the land in suit. Under Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, she became the owner of the land and thereafter she became full owner of the land in view of the provisions of Section 14 of the Hindu Succession Act. The plaintiff-appellants have no right to control alienations of the land made by her. There is force in these arguments of the learned counsel for the respondents. Clause (2) of sub-section (1) of Section 59 only talks of remarriage and not of unchastity and, therefore, it is not permissible to refer to the Customary Law of Rohtak District for determining the succession to an occupancy tenant, as that Act is a special Act which overrides the general law with regard to succession. For these reasons Smt. Pato did not lose her rights in the estate left by her husband Ram Kala because of her proved unchastity with Ganga Datt.;