JUDGMENT
K.C. Gupta, J.
1. This regular second appeal is directed by the plaintiff against the judgment and decree dated 10.4.1980 passed by the Additional District Judge, Gurgaon, whereby he accepted the appeal of the defendant (respondent) and reversed the judgment and decree passed by the trial Court in favour of the plaintiff on 24.11.1979.
2. Briefly slated, the facts are that Bijay Singh s/o Mangal Singh and Smt. Bholi were owners of l/25th share of agriculture land measuring 75 K 12 M as detailed in para No. 1 of the plaint alongwith all other rights pertaining to it as per Jamabandi for the year 1976-77 situated in the revenue estate of village Bas Lambi, Tehsil and District Gurgaon. However, Bijay Singh died unmarried about 9 years prior to the institution of
the suit on 18.7.1978 and the appellant (plaintiff) being father’s brother of deceased Bi-jay Singh was the nearest heir and was entitled to succeed to his estate including the suit land.
3. It was next averred that Smt. Gindori, respondent, was married to Murli, brother of the appellant and after the death of Murli, she performed Karewa marriage with one Ram Parshad of village Manesar, about 29 years ago and started cohabiting with him and had several children out of his loins.
4. It was next averred that the parties were Ahirs by caste and were dependent upon agriculture for their livelihood and were governed by agricultural custom according to which a widow after performing Karewa loses all her rights in the estate of her deceased husband and his family. As such she had lost all her rights in the estate of her husband Murli and had further no right of inheritance in the estate of Bijay Singh, Mangal Singh or any other family member. However, she claimed herself to be the mother of Bijay Singh and in collusion with the revenue authorities got the mutation sanctioned in her favour on 30.3.1978 in respect of the suit land.
5. It was also averred that the appellant asked the respondent several times to get the mutation corrected and to admit him as the owner of the suit land being the nearest heir of Bijay Singh, deceased, but she had refused to do so. With these allegations, suit for declaration, that the appellant was owner in possession of the suit land and the respondent had no right or interest in it was filed on 18.7.1978.
6. The respondent contested the suit and filed written statement. She took certain preliminary objections, that the suit was not maintainable in the present form; that the appellant had got no locus-standi to file the suit; that the suit was time barred and that the appellant was estopped by his act and conduct to file the suit. On merits, she denied. the allegations of the appellant and stated that she was the widow of Mangal Singh and mother of Bijay Singh, deceased, and being mother she had rightly succeeded to the property of Bijay Singh on his death and was in possession of the same. She further denied that she had performed Karewa marriage with one Ram Parshad or had any children from his loins. She also denied that the parties were governed by agricultural custom in the matter of inheritance etc. She further stated that the mutation was rightly sanctioned in her favour as she was the mother of Bijay Singh, deceased.
7. In view of the aforesaid pleadings, the following issues were struck on 14.12.1978:-”
1. Whether the plaintiff is the preferential heir of Bijay Singh deceased ? if so, to what effect ? OPP
2. Whether defendant is real mother of Bijay Singh deceased ? if so. to what effect? OPD
3. Whether the mutation sanctioned in favour of the defendant by a revenue officer is illegal, void and not binding on the plaintiff for the reasons mentioned in the plaint? OPP
4. Whether the defendant had performed Karewa with Ram Parshad and thereby forfeited her right in the property left by Bijay Singh ? OPP
5. Whether the suit is barred by limitation ? OPD
6. Whether the suit is not maintainable ? OPD
7. Relief.”
8. The parties adduced their evidence. After hearing counsel for the parties. Sub Judge 1st Class, Gurgaon, vide his judgment dated 24.11.1979, decreed the suit of the appellant by holding under Issue Nos. 1 to 4 that Smt. Gindori, respondent, was the real mother of deceased, Bijay Singh, but she had entered into Karewa marriage with one Ram Parshad and as such had forfeited her right in the property of Bijay Singh and further the mutation sanctioned in her favour was illegal, void, inoperative and against the interest of the appellant. It was also held that the appellant was entitled to the suit land
left by Bijay Sihgh, deceased. Issue Nos. 5 and 6 were also decided against the respondent as being not pressed.
9. Aggrieved by the said Judgment and decree, the respondent preferred an appeal which was decided in her favour vide judgment dated 10.4.1980 by the Additional District Judge, Gurgaon, and accordingly the suit of the appellant for declaration was dismissed.
10. Dis-satisfied with the said judgment and decree of the Additional District Judge, Gurgaon, the plaintiff has filed the present Regular Second Appeal.
11. None appeared on behalf of the respondent to address the arguments. It was reported by the process server that the respondent had refused to accept service of the summons and copy of the same had been affixed on the outer part of her house. Since, the service was considered to be sufficient and she was not present, so, she was proceeded against ex parte.
12. Counsel for the appellant, Sh. Vivek Verma, was heared and the record was gone into carefully.
The appellant has mentioned in para No. 1 of the plaint, the pedigree table as under:-
Gulab Singh (Died in 1954)
Ram Gopal died 20 years back
|
Maha Singh his widow Dhanpati
performed Karewa about 19 years back
Hans Ram died in 1946. His widow, Smt, Ram Piari (widow)
performed perfonned Karewa with Krishan Lal, plaintiff in 1948
Murli died in 1947
|
Jit Ram his Gindori (left.) performed Karewa with Ram Parshad about 29 years back.
Mangal Singh died about 29 years back
|
Bijay Singh deceased
died about 9 years back unmarried.
13. The allegation of the appellant is that Smt. Gindori, respondent, had no concern or connection with Mangal Singh and in fact she was the widow of Jeet Ram s/o Murii and after his death, she performed Karewa marriage with one Ram Parshad about 29 years ago. He also alleged that Smt. Gindori, respondent, had not given birth to Bijay Singh from the loins of Mangal Singh as she had never performed Karewa marriage with him. It has been held by the trial Court vide judgment dated 24.11.1979 that Smt. Gindori is the real mother of deceased, Bijay Singh as she had entered into Karewa marriage with Mangal Singh, father of Bijay Singh and from his loins, she had given birth to Bijay Singh and further Mangal Singh died on 24.4.1953. However, he has further held that Smt. Gindori had entered into Karewa marriage with Ram Parshad and after performing the said marriage, she had forfeited her right in the property of Bijay Singh. The learned Additional District Judge also held in his judgment that Smt. Gindori, respondent, is proved to be the mother of Bijay Singh, deceased, whose inheritance was in dispute and further by performing Karewa marriage with Ram Parshad, she did not forfeit her right in the property of Bijay Singh, being his mother. Therefore, both the Courts have conclusively held that Smt. Gindori, respondent, had given birth to Bijay Singh from loins of Mangal Singh. This fact is a question of fact which cannot be agitated in Second Appeal in view of Sections 100 and 102 of the Civil Procedure Code. Even this fact is also proved from the statement of PW2, Udham Ram, appellant’s own witness. He stated that Smt. Gindori, had first performed Karewa marriage with Mangal and then wirh Ram Parshad and she had given birth to one son from the loins of Mangal whose name was Bijay. DW1, Smt. Gindori, also stated in her statement that Mangal Singh was her husband and he died about 20/20 years back prior to 17.8.1979 and he was in army. She next stated that she had given birth to two sons, namely, Zile Singh
and Bijay Singh and both of them were unmarried and had died. She admitted that Kishan Lal, appellant, was the real brother of Mangal Singh. DW-2 Shri Chand also stated that the respondent, Gindori, was the widow of Mangal Singh who was in Army. He next stated that after the death of Mangal Singh, Smt. Gindori and her son Bijay Singh got pension on account of Mangal Singh. He also stated that Gindori had given birth to two sons and one daughter from the loins of Mangal Singh. DW3-Sh. Daya Nand, Public Relation Inspector, stated that he had brought the summoned record and according to the record. Mangal Singh had died on 24.4.1953 and after his death, family pension was sanctioned in favour of Smt. Gindori and her two children, namely, Zile Singh and Bijay Singh upto 9.5.1961. He next stated that the family pension was stopped after 9.5.1961 as Smt. Gindori had performed Karewa marriage with Ram Par-shad. The statement of the appellant that Smt. Gindori was not the widow of Mangal and she had not given birth to Bijay Singh from the loins of Mangal cannot be believed. Therefore, it is conclusively proved that Smt. Gindori, respondent, had performed Karewa marriage with Mangal Singh and had given birth of Bijay Singh from his loins.
14. Counsel for the appellant contended that even if it is held that Smt. Gindori, respondent, was the mother of Bijay Singh, then also since Smt. Gindori had performed Karewa marriage with one Ram Parshad, so, she had forfeited her right in the property of Bijay Singh being his mother as the parties were governed by agricultural custom. It is stated in the plaint that Bijay Singh had died unmarried about 9 years prior to the institution of the suit on 18.7.1978 i.e. In the year 1969, meaning thereby, after the enforcement of Hindu Succession Act in the year 1956. The dispute is regarding the inheritance of Bijay Singh. According to Section 4(1)(a) of the Hindu Succession Act, 1956, any custom or usage as part of that law enforced immediately before the commencement of this Act ceases to have effect with respect to any matter for which provision is made in this Act i.e. the said section had got over-riding effect on any custom or usage. Since, Bijay Singh was unmarried and had died intestate after 1956, so, his property will devolve on his mother i.e. Smt. Gindori being Class I heir. If Smt. Gindori had performed Karewa marriage with one Ram Parshad, then she is not dis-qualified from inheriting the property of her son. Under Section 24 of the Hindu Succession Act, 1956, only certain widows, ii” they re-marry, are disqualified from inheriting the property of the intestate as widows but the mother is not one of Ihem- Therefore, Smt. Gindori had rightly succeeded to the suit land left by her son Bijay Singh after 1956 and the mutation had been rightly sanctioned in her favour. There is no dis-qualification attached to it if she had performed Karewa marriage with one Ram Parshad as she did not forfeit her right in the property of Bijay Singh being his mother.
15. Counsel for the appellant also contended that in the copy of the Jamabandi, to which presumption of truth is attached, Smt. Gindori had been described as widow of Jeet Ram son of Murli and as such, there was no question that she was widow of Mangal Singh. Again, in my opinion, the contention of the learned counsel for the appellant is not tenable. The presumption attached to the entries in the Jamabandi are refutable. It is proved from the statement of DW3 that Mangal was in the military and he had died on 24.4.1953 and his widow, Smt. Gindori, and her two sons, namely, Zile Singh and Bijay Singh, had got family pension for 7-8 years. The family pension was only stopped when it was found in ihe year 1961 that Smt. Gindori had performed another Karewa marriage with one Ram Parshad.
No other point has been urged before me.
16. The up-shot of the above discussion is that the Regular Appeal fails and the
same is dismissed.