Judgment

MOHAN, J.:- The facts leading to this Civil Appeal are as under :

The suit property in question was originally owned by one Gulaba Singh. He died on September 5, 1969. The plaintiffs laid a suit No. 217/137 in the Court of Sub-Judge, 1st Class, Dhuri on 18-6-1970 for possession of the suit property on the plea that they were the grandsons of the fathers brother of the said Gulaba Singh. They also based their claim on the will stated to have been executed by Gulaba Singh in their favour on August 16, 1969. It was further averred in the plaint that the first defendant has no right, title or interest in the suit property. Her claim that she was validly married to Gulaba is baseless. The Karewa Nama dated October 28, 1965 alleged to have been executed between Gulaba Singh and the first defendant was a nominal transaction. In fact, the Karewa Nama recited that the first defendant was married to Bishan Singh who died about four years ago on April 22, 1964. The mutation of inheritance of the deceased was sanctioned in favour of the first defendant Surjit Kaur. Therefore, it had become necessary for the plaintiffs to file a suit for possession of the land and the house in question: An additional plea was made for permanent injunction restraining the first defendant from alienating the land in dispute.

2. The first defendant contested the suit on the ground that she was the legally wedded wife of Gulaba Singh who had contracted karewa form of marriage with her. In evidence whereof a Karewa Nama dated October 28, 1965 had been executed and the same has also been registered. After the marriage, both of them lived as husband and wife. Gulaba Singh had executed no will in favour of the plaintiffs. The plaintiffs could not lay their claim on the relationship with Gulaba Singh which is denied.

3. The second defendant Nachhattar Singh contested the suit contending that Gulaba Singh had executed a will in his favour on 1-9-1965 as a result of which he became the owner of the said property. It was also denied by him that the deceased had executed any valid will in favour of the plaintiffs or that the plaintiffs were related to Gulaba Singh.

4. On trial, it was held that the will set up by the plaintiffs was not valid. Surjit Kaur was the legally wedded wife of Gulaba Singh. Accordingly. the suit was dismissed.

5. Aggrieved by the dismissal of the said suit, the matter was taken up in appeal before the learned Additional District Judge, Sangrur in C.A. No. l0/ 1974. By judgment and decree dated 27-5-1978, it was dismissed.

6. Thereupon, Regular Second Appeal No. 1560/ 1978 was preferred to the High Court. The learned Single Judge of the High Court took the view that in the written statement, it had not been pleaded that marriage of appellant. Surjit Kaur with Gulaba Singh was solemnised in accordance with the customary rights and ceremonies. Nor did she as DW 4 state that the marriage was celebrated with customary ceremonies in due form. Having regard to Section 17 of the Hindu Marriage Act, the essential ceremonies set out under the Act had not been conducted. Merely because, there was distribution of sugar or gur, that would not constitute a valid marriage. Surjit Kaur was in the habit of changing husbands frequently. Therefore, she is not the wife/widow of the deceased Gulaba Singh. The respondents having proved that they are the nearest heirs of the deceased would be entitled to succeed to the estate of Gulaba Singh. In the result, the second appeal was allowed setting aside the concurrent findings.

7. Aggrieved by this, the present appeal has been filed.

8. The argument on behalf of the appellant is that the High Court erred in holding that there was no averment in the written statement as to the marriage of the appellant with Gulaba Singh. In fact, there is a mention in paragraphs 13 and 16 of the written statement, Ex. D4 that Kareva Nama also establishes the factum of marriage. DW 1 speaks that the ceremonies of marriage were performed i