The judgment emphasizes the applicability of the Hindu Succession Act, 1956 over customary law and establishes the validity of a family settlement even in the absence of a written document.

S. Ravindra Bhat:

1. This appeal by the plaintiffs challenges a judgment and decree of a learned Single Judge of this Court in Suit No.643/1966 dated 07.06.1974. The impugned judgment dismissed the plaintiffs’ claim for partition, declaration and rendition of accounts.

2. The undisputed facts emerging from the pleadings are that Mare Singh, son of Pat Ram had six children – three sons (Bharat Singh, first defendant; Om Mittar, second defendant and Om Prakash, who predeceased Mare Singh) and three daughters (Chanderwati, mother ofthe Plaintiff Nos. 1 to 5 and wife of the sixth plaintiff; Kaushalya Devi, mother of third defendant in the suit and Vidyawati, mother of the fourth defendant in the suit). Mare Singh left behind a large estate, comprising several properties, including four houses – two in Village Nangal Raya and two in Mohalla Tokriwalan, Pul Mithai, Delhi and considerable agricultural land within Village Nangal Raya. The plaintiffs, legal representatives of deceased Chanderwati laid claim to 1/5th share of the entire estate of Mare Singh, alleging that Chanderwati, his deceased daughter was entitled to that share of his estate. They also claimed that alienation made to the fifth defendant – who was impleaded during the proceedings – was not binding and that the property was one of the assets mentioned in the suit, sold by the second defendant Om Mittar. The defendants, i.e. the first two defendants - Bharat Singh and Om Mittar shall be referred to by their names; likewise Chanderwati, mother of the first five plaintiffs and wife of the sixth plaintiff would be referred to by her name.

3. The plaintiffs sought to argue that by customary law applicable to their community, the married daughter could claim a share in the coparcenary equal to that of the sons, and other male coparceners. Bharat Singh and Om Mittar filed separate written statements. Both of them denied that Chanderwati had any share on the ground that she had relinquished her share of 1/5th of the 1/3rd (falling to Mare Singh on notional partition before his death) of the coparcenary property. It was argued that sometime in March 1961, they had settled with Chanderwati and agreed to pay her money as well as “bhat”, i.e. consideration or gift at the time of festivals and on the occasion of marriage etc. in her family. Om Mittar stated that a sum of Rs.10,000/- had been paid at the time of settlement. Bharat Singh only stated that a sum of Rs.2,000/- was paid as “bhat” to Chanderwati on the occasion of her daughter’s marriage.

4. In this state of pleadings, the parties went to trial; the suit was filed before the Sub-Judge, First Class, Delhi. After the constitution of this Court, the suit was transferred to its file. Issues had been framed earlier, but were subsequently amended on application of Order XIV Rule 7 CPC. The Court struck as many as 15 issues. During the trial, 5 issues (Issue Nos. 1, 2, 3, 4 and 5) were given up. After considering the matter, learned Single Judge summarized the points for decision as follows:

“(a) Whether the parties were governed in matters of succession by Hindu Law or custom?

(b) Whether there was any relinquishment by Chander Wati of her share in the estate left by Mare Singh on receipt of consideration in the form of money etc. and the promise of “Bhat” being given at the weddings of her children by the two surviving brothers, Bharat Singh and Om Mitter?

(c) If there was no relinquishment how is the estate of Mare Singh to be divided?”

5. The parties led evidence – both documentary and oral. The plaintiffs in support of their case relied upon the testimonies of 11 witnesses. Bharat Singh, the first defendant, relied on a testimony of 11 witnesses and Om Mittar relied on the testimony of 4 witnesses. During the pendency of proceedings, Bharat Singh died and his legal representatives were substituted and brought on record. Besides the deposition of witnesses, the parties relied upon several documents, includi