2003 Supreme(SC) 1305

2002(4) Supreme 370
SUPREME COURT OF INDIA
Y.K. Sabharwal & Dr. AR. Lakshmanan, JJ.
Ram Swaroop & Anr. -Appellants
versus
Mahindru & Ors. -Respondents
Civil Appeal No. 4459 of 1997
Decided on 18-12-2003

IMPORTANT POINT
Where the property of first husband was transferred in favour of his widow by virtue of the custom where the plaintiff/defendant were a consenting party and the property having been passed to the second husband of the widow on her remarriage, cannot be either taken back or challenged on the ground that the properties still continue to be joint.

Headnote:Hindu Widow Remarriage Act, 1856-Section 2-Remarriage of widow-Whether widow loses all her rights and interest possessed by her in the property of her husband-Father of respondents filed a suit for declaration that respondent to be in joint possession of property having 1/3rd share and for partition of his share in respect of shops, vacant plots and for a decree for rendition of accounts- K , first husband of G died about 32 years ago and G being his widow inherited properties-After about one year of death of her husband, G in accordance with customs prevailing in the area became wife of father of appellants on her marriage with him-Whether on remarriage Smt. G lost all rights in properties inherited by her from her first husband-(No)-Widow got the property under family custom of illaqua by a deed of year 1932 to which document father of plaintiff respondent was a party who died in 1942-Whether subsequent applicability of Hindu Widow Remarriage Act which came to be enforced in the area in question w.e.f. 1.1.1950 vide the Merged States (Laws) Act, 1949 can retrospectively take away rights of widow-(No)-Whether plaintiff respondent who was born in 1938 and attained majority in year 1968 could file the suit in 1968-(No)-Suit was barred by limitation.

       Held : 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. In the instant case, the defendants have specifically pleaded the custom prevalent in the community 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. The evidence available in this case clearly proves the case of the defendants that on remarriage Smt. Gangi would not forfeit her right to the suit properties which she got from her husband earlier. It was also proved that marriage with Bala Ram does not divest her of her right in the properties. The plaintiffs/respondents herein have miserably failed to prove otherwise on the custom pleaded, proved and established by the defendants. In our opinion, both the lower Courts have failed to appreciate the fact that the partition took place with the consent of the parties including the father of the respondents and as such the respondents are estopped from filing this suit. (Paras 20 to 22)

       It is seen from the records that the Hindu Widows Remarriage Act, 1856 came to be enforced in the area in question w.e.f. 1.1.1950 vide the Merged States (Laws) Act, 1949 whereas the document compromise deed was executed in the year 1932 signed by Smt. Gangi and other Panchas and the father of the plaintiff and the other witnesses. Therefore, the provisions of the Hindu Widows Remarriage Act, 1856 was not applicable to the area and the provisions of the Act cannot be made applicable retrospectively. In our opinion, the compromise deed does not debar her from losing all her rights in the properties and she was fully competent and entitled to inherit all the properties. (Para 23)

       Once the rights have been relinquished by the father of the plaintiff, the same, in our view, cannot be challenged and even if the same has to be challenged it has to be done within a period of 12 years and admittedly no such case was filed by the respondents/(plaintiffs - Krishan Dutt, who was born on 7.10.1938 and attained majority in October, 1956) and filed the instant suit on 17.10.1968. Therefore, the learned trial Court rightly came to the conclusion that the suit of the respondents was barred by time. However, the appellate Court and the High Court have failed to give any reasoning as to how the suit of the respondents was within time. The cause of action arose to the plaintiff on his attaining majority to repudiate the title of the respondents/defendants which was also made in the year 1955 when the earlier suit was instituted by Bala Ram under Exhibit P8. 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. Kalavathy (mother of the plaintiff). Exhibits marked X, DX and DX1 which appears the thumb impression of Smt. Kalavathi (mother of the respondent/plaintiff) shows that the partition was duly acted upon. (Paras 25 and 26)