In companyclusion, the lower Court came to the companyclusion that the appellants have fully established by their evidence that late Shri Bala Ram was exclusively in possession of the properties left behind by Shri Kanshi Ram.
The trial Court has also observed that in the jama bandi for the year 1941 42 Smt.
Gangi had delivered all the properties to Bala Ram second husband in a private partition and were being used by Bala Ram without any interruption.
The brief facts leading to the filing of the present appeal are One Krishan Dutt, who is the father of the respondents herein, LRs of plaintiff filed a suit for declaration in the Court of Senior Sub Judge Mahasu at Shimla and prayed for a decree of declaration thereby declaring the respondent to be in joint possession of the properpty having 1/3rd share and for partition of his share in respect of shops, vacant plots and for a decree for rendition of accounts.
It is a settled law by a catena of decisions of this Court and also of the other High Courts that a custom must be pleaded and proved.
It was further submitted that the father of the respondents plaintiffs by name Mansa Ram died in 1942.
Encircled Sd In Hindi Ram Nath Solan In red and Sd In Hindi Mehta Paras Ram Chawal Marked as Sd In Hindi Dhani Ram Mangru K/1 Sd In Hindi Devi Changar.
Gangi as after about one year of the death of her husband Smt.
Gangi with Shri Bala Ram by any of the parties and the factum of remarriage and the transfer of properties has been stated in one document.
The orders of Revenue authorities on the said mutation are also illegal, unauthorised and without jurisdiction and are in operative against the rights of the defendants.
It was also pleaded that, in any case, the appellants are in adverse possession of the land which they are occupying out of the land in the suit which their father was also in adverse possession.
Likewise, it was submitted that the first appellate Court has failed to appreciate the plea that on the death of Kanshi Ram, his properties were inherited by Smt.
Gangi had remarried Shri Bala Ram and as such all the properties of Kanshi Ram with the companysent of all his brothers came to her possession on the basis of a written proof on the record of the Court.
Since Pt.
P.W.1 is a teacher in Government High School.
Gangi Mast Ram Died in 1942 Died in 1956 Kanshi Ram Smt.
The decision about this remarriage was taken in the Panchayat.
The respective parties tendered their oral and documentary evidence.
We heard Mr. Ashok Grover, learned senior companynsel for the appellants and Mr. C. Agrawala, learned companynsel for the respondents.
They had companysented to these proceeding From that day onwards, Shri Bala Ram became the owner of the moveable and immoveable property of my first husband.
This evidence will be of numberassistance.
It has been further submitted that after about one year of the death of Shri Kanshi Ram, Smt.
The plaintiffs respondents herein have miserably failed to prove otherwise on the custom pleaded, proved and established by the defendants.
The property belonging to Kanshi Ram was given to Bala Ram objected to qua the document the companyy of which is marked K already on record .
Gangi to dislodge her case in regard to the custom of illaqua and her remarriage with Shri Bala Ram after the death of Kanshi Ram on the decision about the remarriage in the Panchayat.
Gangi in accordance with the customs prevailing in the area became the wife of Bala Ram, the father of the appellants defendants and on her marriage with the father of the appellants, all her rights and interests in the properties which she had inherited from her husband were given to Bala Ram and thereupon Bala Ram occupied the said properties as exclusive owner including the properties in the suit and on the demise of Bala Ram in 1956, the appellants defendants became the sole owners and in possession of the properties.
Thereafter Bala Ram lived with me.
S Shri Devi Singh, Dhani Ram, Paras Ram companytractor Bhoval and Ram Nath r o village Solan, Mathu, Mansha Ram, Bala Ram, Ram Singh and Ram Nath my brothers were present in that Panchayat.
My brothers arranged the meeting of this Panchayat in order to make necessary arrangements about my maintenance.
The learned District Judge, in his order, observed that it stood established that Smt.
The said appeal was ultimately assigned to the Court of District Judge, Solan and the learned District Judge vide order dated 20.12.1986 accepted the appeal of the respondents plaintiffs and set aside the judgment of the senior sub judge and passed a decree in favour of the plaintiffs respondents and against the appellants defendants.
Against the order of the learned District Judge, the appellants defendants filed a regular second appeal before the High Court of Himachal Pradesh at Shimla and companytended in the appeal that the learned District Judge has companymitted a grave irregularity by number adverting to the entire claim of the appellants and erroneously allowed the appeal in favour of the respondents herein.
The lower Court, therefore, came to the companyclusion that on the death of Kanshi Ram, Smt.
As regards the shops, it was submitted that the shops were companystructed by the father of the appellants Bala Ram at his own companyt and had a portion of land which Smt.
Gangi with Bala Ram father of the appellants herein , Smt.
and the execution of the documents in the presence of Panchayatdars.
Gangi have appended their signatures and thumb impressions on the document in his presence.
On the death of Kanshi Ram I got his entire property in succession.
The trial Court also came to the companyclusion that the plaintiffs respondents have failed to discharge their onus on the plea raised in the plaint by letting sufficient evidence on record.
Gangi had remarried Bala Ram with the companysent of his father Mansha Ram.
Sd In Urdu Mast Ram Thumb Impression of Mst.
He did number deny the marriage.
Kalavathi participated in that partition.
W.9 Ram Swarup defendant has also deposed about the remarriage of Gangi with Shri Bala Ram after the death of Kanshi Ram and the inheritance of the property by Bala Ram etc.
Aggrieved by the judgment of the High Court, the unsuccessful defendants preferred the Special Leave Petition.
Gangi father of plaintiff Second Husband Smt.
On the other hand, he said on the death of Kanshi Ram, Smt.
Against the order of dismissal of the suit, the plaintiffs respondents preferred an appeal before the High Court of Himachal Pradesh.
It has been further submitted that Smt.
Gangi in Hindi Bala Ram, Mansha Ram father of the plaintiff and Mansia in Hindi one Mast Ram who is the brother of Bala Ram has signed in Urdu.
However, the learned District Judge observed that Smt.
The parties are number in joint possession of the lands in suit and the allegations of the plaintiff are false to his knowledge.
Mathra died in 1930 widow of Gangi first husband of gangi Shibi Krishan Dutt Daughter Plaintiff Mahindru Som Dutt Usha Pushpa Savitri Rama Somawati Indra Shanti Jai Dutt Ram Swarup wife son daughter daughter S o Bala Ram S o Bala Ram Plaintifffs LRs Defendants Respondents in Supreme Court Appellants in Supreme Court On the pleadings, the trial Court framed 9 issues in support of their case.
Gangi on her remarriage forfeits her rights over the properties of her first husband Kanshi Ram which she inherited from him.
The chart giving the details of the parties to this action is given below Ram Dutt Thachu Sahibu Balak Ram Palak Ram Luru Ram Ram Saran Chana Died Died Ganga Ram Mathu Mansa Ram Bala Ram Smt.
The evidence tendered by D.W. 8 has been companyroborated by D.W. 6 Ram Nath whose occupation is zamindari.
Signatures of Panches.
Gangi and others clearly establish the custom pleaded by the defendants in the written statement.
Gangi had remarried Bala Ram according to the custom and that he has simply denied to a suggestion made as to whether he was aware of remarriage of a widow with any of the brothers of earlier husband the property inherited by her from that husband would stand devolved to her newly married husband with the companysent of other brothers of her husband.
Gangi remarried Bala Ram and there is numberdispute to the marriage of Smt.
Gangi settled with Bala Ram and the property of Kanshi Ram was given to Bala Ram and since then, Bala Ram became the owner of that property.
The aforesaid widow is quite young.
Gangi from her husband.
The admissions made by the father of the respondent admitting the partition through documentary exhibits marked A J and Compromise Deed which were proved to be signed by Mansa Ram father of the plaintiff and Smt.
Gangi in accordance with the customs of the illaqua became the wife of Bala Ram and all her rights and interests in the properties which she had inherited from her husband with the companysent of all the brothers in a panchayat vested in Bala Ram and ever since Bala Ram has occupied the properties as exclusive owner.
In the cross examination numberhing has been elicited from D.W. 8 Smt.
He also simply denied that Smt.
Kanshi Ram s o Pt.
The High Court, in our opinion, by misinterpreting the provisions of the Hindu Widows Remarriage Act came to a wrong companyclusion that on remarriage Smt.
Shri Bala Ram had accepted me as his wife with the companysent of S Shri Mathu and Mansha Ram.
Gangi, widow of Kanshi Ram has been shown as owner of 2/3rd share in the property and the jama bandi relates to the year 1945 46 and 1949 Shri Bala Ram, Mast Ram and sons of Luru Ram and Krishan Dutt plaintiff son of Mansa Ram are shown as owner of the land and jama bandi for the year 1957 58 and Ram Swarup and Jai Dutt defendants appellants are shown as owner of 2/3rd share of the land.
He would further depose that this writing was read over to all the witnesses and Mast Ram, Mansa Ram father of the plaintiff Bala Ram and Smt.
Leave was granted on 09.07.1997 and the operation of the impugned judgment was stayed during the pendency of the appeal and it was directed that numberthird party interest be created in the meanwhile by either party.
The learned subordinate Judge came to the companyclusion that the onus to prove the joint possession of the properties and the respondents having 1/3rd share in the properties was on the respondents plaintiffs and that the respondents have failed to adduce any positive evidence.
He deposed that after one year from the death of Kanshi Ram he called a meeting of Panchayat and enquired from Mansha Ram father of plaintiff Matu Ram and Bala Ram who were the near relations of Smt.
I was 18 years old when Kanshi Ram expired.
Gangi lost all rights in the properties inherited by Smt.
The appellants filed their written statement and apart from taking legal objections have companytended that there is numbercause of action number locus standi of the respondents to file the suit that Kanshi Ram first husband of Gangi died about 32 years ago and Gangi the widow of Kanshi Ram inherited the properties.
Shri Kanshi Ram used to live separately from S Shri Bala Ram, Mathu Ram and Mansha Ram.
9th day of Posh, 1988.
Gangi with Shri Bala Ram by any of the parties.
Mehta Paras Ram companytractor r o Village Chawal, Mehta Dhani Ram r o Village Mungru Illaqua Patiala and Mehta Devi Singh r o Village Changar were appointed from the Biradari Brotherhood and Ram Nath was appointed from Solan.
He had taken over the possession also of that property.
Gangi had inherited from her husband and delivered to Bala Ram and that Bala Ram was the exclusive and sole owner of this property and on demise, the property has fallen in exclusive possession of the appellants.
Gangi the estate inherited by her from her husband devolved in favour of Mast Ram, Bala Ram and sons of Luru Ram, namely, Mansa Ram, father of the plaintiff and Krishan Dutt plaintiff in equal shares and accordingly the plaintiffs respondents came to occupy 1/3rd share in joint properties.
Gangi about her future maintenance and upon this with the companysent of all Smt.
Murtu Sd In Urdu Ram Singh Village Dadyog.
Gangi, as stated above.
He also deposed about the writing which was executed in the presence of the Panchayat and he also identified the signatures on this writing.
It was further companytended by the appellants that the lower appellate Court has totally misconstrued the pleadings of the parties especially the plea set up in the written statement.
Seals of companyying Agency The above document was signed by Smt.
In the instant case, the defendants have specifically pleaded the custom prevalent in the companymunity in the area in question and also proved beyond any reasonable doubt in regard to the said custom and the inheritance of the property by Bala Ram and the enjoyment of the same by him till his death and thereafter, the defendants appellants right to inherit the said property.
Ram Singh s o Pt.
A reading of the above documents companypled with the specific averment made in the written statement and of the oral evidence of Smt.
Lakshmanan, J. The above appeal was filed by the defendants against the order dated 07.01.1997 passed by the High Court of Himachal Pradesh at Shimla in R.S.A. No.
I remarried Shri Bala Ram after one year from the death of Shri Kanshi Ram.
The Revenue authorities had also wrongly entered mutation No.
The plaintiff has numberright, title or interest in the said 2/3rd share of Shri Kanshi Ram.
Ram Nath and Pt.
Since the death anniversary of Kanshi Ram has been solemnised yesterday i.e. the 8th Posh, 1988 B.K. and number the aforesaid widow and her brothers S Shri Pt.
That the Revenue entries, showing the plaintiff and defendants as joint owners and showing the defendants to be owners to the extent of 2/3 and the plaintiff to the extent of 1/3, are totally wrong, against facts, illegal and without jurisdiction and are in operative against the rights of the defendants.
One Murtu affixed his thumb impression on the document, one Ram Singh Village Dadyog has also signed in Urdu.
Dr. AR.
The document was attested by 4 persons in Hindi who are near relations.
Therefore, the learned District Judge held that on remarriage of Smt.
Ganga Ram r o Village Solan had expired issueless on the 18th Manghar, 1967 and his widow is in possession of the property in her capacity as an owner.
On S.A. Shri Kanshi Ram deceased was my husband.
The document reads thus COMPROMISE DEED Since Pt.
I have heard the companytents of the original writing marked K. It is the same writing which was scribed at that time.
66 of 1987.
This Panchayats meeting was held in my house.
P.W.2 is Krishan Dutt, plaintiff himself.
He also deposed that on behalf of the plaintiff Krishan Dutt his mother Smt.
01.01.1950 vide the Merged States Laws Act, 1949 can retrospectively take away the rights of Smt.
The respondents alleged in the plaint that the appellants defendants are joint owners of the property detailed in the plaint that the respondents have got 1/3rd share in the properties and are accordingly entitled to 1/3rd share by partition, the parties being in joint possession of the properties.
