JUDGMENT
A.L. Vaidya, J.
1. The suit land, which is the bone of contention between the parties, was lastly held by one Smt. Jugni as owner, who died issue-less in the month of February. 1982. She was originally married to one Bantu who died during the life time of Smt. Jugni. The mutation of her inheritance has sanctioned in favour of present appellant defendants Smt. Kashmiru and others who were alleged to be her nearest relations, one of them being sister’s son. The present respondent Sh. Doom filed a suit for declaration and possession to the effect that mutation of inheritance sanctioned in favour of present appellants on 16th August. 1982 was wrong, illegal and inoperative qua his rights as he claimed himself to be the husband of deceased Smt. Jugni having married the widow through some customary marriage. On that account the possession of the suit land was also asked for.
2. The trial court dismissed the suit while lower appellate Court decreed the same. The suit had been contested by the present appellants taking various legal objections and denying the case of the plaintiff on merit also. The factum of marriage of the deceased with the plaintiff was denied and it was pleaded that in the absence of pleading of the essentials of the custom, the marriagei if any, on that score could not be said to be valid one.
3. The parlies were put to trial on the following issues by the trial Judge :
1. Whether Smt. Jugni was legally married wife of the plaintiff, if so to what effect? OPP.
2. Whether land in dispute came to Smt. Jugni from the side of her parents? OPD.
3. Whether defendants are heirs of Smt. Jugni? OPD.
4. Whether plaintiff has no cause of action or right to sue? OPD.
5. Whether mutation of inheritance of Smt. Jugni No. 296 dated 22-10-1982 was wrongly sanctioned in favour of the defendants? OPP.
6. Relief.
4. The trial Court came to the conclusion that Smt. Jugni was not legally wedded wife of the plaintiff and accordingly Issue No. I was decided against the plaintiff while deciding Issue No. 2 the trial Court held that Smt. Jugni did not inherit the property in suit from her parents and Issue No. 2 was accordingly disposed of Issues Nos. 3 and 4 were decided in affirmative while Issue No. 5 was disposed of against the plaintiff. The suit accordingly was dismissed.
5. The lower appellate Court reversed the judgment and decree passed by the trial Court and decreed the suit. The lower Appellate Court came to the conclusion that the plaintiff was married to deceased Jugni and was. therefore, entitled to inherit the suit property.
6. The judgment and decree passed by the lower Appellate Court have been assailed in the present appeal on various grounds.
7. The main dispute between the parties rests upon the plaintiffs claim to inherit the estate of the deceased on account of his being the husband of the deceased through a customary marriage. It is on this plea of customary marriage that the parties are in variance in so far as the legal as well as factual proposition were concerned.
8. It has been the case of the defendants that lower Appellate Court has disposed of the plea of customary form of marriage. which in legal term was called as “jhan-jharara”, on the basis of the evidence which in the absence of the pleadings could not be looked into. It has been contended on behalf of the appellants that the plaintiff has failed to plead the essentials of the custom by which the parties were governed in the matter of marriages and in the absence of the essential ceremonies-required to be performed in such type of customary marriages being not pleaded, the evidence in this behalf examined by the plaintiff during the trial has to be totally ignored and if it was so done, the plaintiff’s customary marriage did not stand legally establish and as a natural consequence there of the plaintiff has to be non-suited. It is not so simple a matter, as has been contended on behalf of the appellants. In order to appreciate the legal proposition submitted, especially the effect of variance between the pleadings and evidence examined during the trial of the suit, ‘.here are various factors to be taken note of which depend upon the facts and circumstances of an individual case and with that background this proposition has to be appreciated.
9. The plaintiff in his plaint very specifically pleaded that Smt. Jugni on account of her marriage with him in accordance with custom of illaqua and brotherhood was his married wife. It was also pleaded that the plaintiff and Smt. Jugni after the marriage were residing as such together were in occupation of the suit land.
10. The suit land was situated in Tehsil Churah of District Chamba and parties were also residing in the same Tehsil.
11. It has come in the evidence examined by the parties before the trial Court that plaintiff married Smt. Jugni by way of “Jhanjrara’ marriage which is customary form of marriage. Otherwise also, this customary type of Jhanjrara marriage has been recognised to be a customary marriage prevalent in Chamba District as is evident from the book titled Gazetteer of the Chamba State, Part A-1904, page 126, wherein form of marriages have been described as under:
“Among all castes three kinds of marriages are in vogue: (i) regular (byah); (ii)jharigrara and (iii)jhind phuk or man-marzi. Regular
marriage involves betrothal (mangni) and the orthodox phera and the chhe-chap are essential. In a Jhanjrara the bride puts on ornaments, especially the nose-ring (nath), a red string to bind her hair (dori), and a bodice (choli). In both forms of customary marriage the worship of the family god or of a lamp is essential. The Jhanjrara rite is customary in the remarriage of a widow or of a woman divorced by her former husband, it is called choli-dori. especially in the Sadar and Brahmaur Wizarats and sargudhi in Churah.”
12. Thus taking into account the aforesaid facts that a widow’s remarriage, by way of custom, could be solemnised in Chamba District and this custom has been accepted, as referred in Gazetteers, as far back as in the year 1904. There is no doubt that the plaintiff has not pleaded the essential ceremonies which constitute this Jhanjrara type of customary marriage but in the context of the aforesaid circumstances, where such type of marriage was recognised by the people of the area and parties to that effect have examined evidence also, in that event, question of variance between pleadings and evidence loses all significance. The plaintiff, during the course of evidence examined, has tried to establish his marriage with the deceased Jugni to be a Jhanjrara type of customary marriage and the defendants have tried to rebut the said evidence examined by the plaintiff. In this view of the matter, when both the parties were in knowledge of each party’s case being examined through evidence, in that event, the pleading would not be material. The absence of pleading in case caused any prejudice to the opposite party such a fact can be looked into but in the present case as the defendants knew the case of the plaintiff put up before the trial Court through evidence examined, and the defendants having sufficient opportunity to rebut the same,, have tried to rebut also, the absence of ceremonies not pleaded will not matter in any way. Needless to say, the plaintiff in the plaint very specifically pleaded that he married Smt, Jugni deceased through custom of the illaqua and brotherhood by which they were governed. Taking into consideration all these aspects the appellants submission that the evidence, without pleading regarding Jhanjrara form of marriage, is to be excluded, does not hold good.
13. The parties case, as such, now has to be appreciated on the basis of the evidence examined by them before the trial Court.
14. The oral as well as documentary evidence have been brought on record by the parties to establish their respective case.
15. The plaintiffs oral evidence consisted of statements made on oath by four witnesses including the plaintiff himself. This Doom while appearing as PW-1 stated on oath that Smt. Jugni was his wife who was married to him through Jhanjrara seven years back. This witness was examined on 18-6-1983. According to him, in that Jhanjrara ceremony, the brotherhood was served with feast and Jugni was provided bangles and nose-ring by him. He also distributed ‘Gur’. Similar in the version given by PW-3 Sh. Jawahar, who himself attended this Jhanjrara ceremony. This witness stated that he knew the parties and also knew Jugni deceased. He very specifically stated that Jugni was the wife of Doom and marriage between two took place about seven years back and in that Jhanjrara marriage Gur was distributed, meals were served and ornaments were given to the bride and thereafter Jugni resided with Doom as his wife till she died. According to him, he attended this Jhanjrara ceremony and besides him 40 other persons were there who included Dhian Chand, Molap, Rehru, Tek Chand with his wife, Baldev, Mansa, wife of Roop Chand, Purshotam and others. PW-4 is Smt. Dekhnu, the real sister of Doom, who has also supported this Jhanjrara ceremony performed for the marriage between the plaintiff and Smt. Jugni deceased. She stated that marriage of Doom and Jugni took place seven years before when ornaments were given including nose-ring. According to her Gur was distributed and meals were served. After Jhanjrara ceremony, according to this witness, Jugni resided with Doom as his wife and remained as such till her death. She stated that in such a customary marriage Purohit was not there.
16. In rebuttal Baldev Singh examined himself as DW-1, He has denied the marriage. DW-2 one Sh. Sham Lal who made general statement that in his presence Jhanjrara did not take place. He also stated that even earlier marriage of Jugni had not taken place in his presence. There is nothing in the statement of this witness that he could be the competent witness to depose this fact. Further, there is nothing in the statement of this witness that his presence in such like ceremony was essential and natural. Similarly, DW-3 Chandu Ram has also denied the marriage. He has given an additional factor that Jhanjrara marriage is entered in some Register, but that is not stated even by the defendants or such an entry was essential in this type of customary marriage. Similarly, Bija Ram, DW-4 by making a general statement will not help in proving the case of the defendants.
17. On the basis of the oral evidence examined, one thing has been established that some ornaments were given to Smt. Jugni along with nose-ring. According to the plaintiff, and his witnesses the marriage took place about seven years back when they made statement before the court. In a seven years time all the details of ceremony may not be possible to be remembered by the witnesses but the main ceremony of giving nose-ring and ornaments and serving the brotherhood ‘ with feast stood legally established. Otherwise also in such a case where details of ceremonies as per custom had not been fully given OH account of lapse of the time, in that event, the opinion of the brotherhood with respect to the relations of the deceased with the plaintiff would be very much relevant and conduct of the deceased with the plaintiff would be equally important to establish their relations. It has come in evidence examined on behalf of the plaintiff that Smt. Jugni and plaintiff were taken as husband and wife by brotherhood after the alleged Jhanjrara ceremony which was performed after Smt, Jugni had become widow after the death of her first husband.
18. An other important aspect of the evidence, examined during the trial of the suit, is very much relevant which goes in favour of the marriage between Smt. Jugni and Doom plaintiff. It has come in evidence that Smt. Jugni was admitted in Tuberculosis Hospital and to prove that fact Ex. PA the certificate issued by PW-2 has been brought on record which certify that Smt. Jugni wife of Sh. Doom Ram, village Salwan, P.O. Bhanjraru, Panchayat Bhanjraru. Tehsil Churah per index No. 9185 CDC 19913, was under treatment for pulmonary tuberculosis since 12-5-1981. According to the defendant Baldev, it was he who got Smt. Jugni admit-ted in T. B. Hospilal and he had engaged the plaintiff us coolie to do the same and probably Doom Ram plaintiff as coolie by misrepresentation got himself recorded in the relevant record as husband of Smt. Jugni. Such an explanation comirg from the defendant does not appeal to reasoning at all. It appears to be most incredible and unbelievable that coolie engaged for admission would behave in that manner. This Baldev while appearing as DW-1 very specifically stated that he had gone to T. B. Hospital. He further added that some labourer, which was identified as the plaintiff, brought Jugni to T. B. Hospital and was paid Rs. 40 – as wages. But the witness stated that no receipt was issued in this behalf. According to this witness, she remained in the hospital for about 15 to 16 days. In case the defendant himself had gone to T. B. Hospital and Doom had* nothing to do with the deceased, in that -event, the description of Jugni in the hospital record was either given by Jugni herself or by this witness. A labourer without any background could not do such an act. In this view of the matter, the description of Jugni as wife of Doom plaintiff in the hospital record at the time of her admission cannot be easily ignored and this fact strengthened the oral evidence examined during the trial as discussed above.
19. On the basis of the aforesaid evidence, the lower Appellate Court came to the correct conclusion that Jugni after the death of her first husband remarried the present plaintiff and died as his wife. The plaintiff as such was legally entitled to the estate of the deceased being her husband as her legal successor in the absence of any issue of Jugni deceased. The judgment and decree passed by the lower Appellate Court do not require any interference whatever.
20. No other point has been stressed.
21. In view of the foregoing reasons, the present appeal being devoid of merit is accordingly dismissed. The parties arc left to bear their own costs.