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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sureshwar Thakur, J.
Kavita – Plaintiff/Appellant
Versus
Tara Devi – Defendant/Respondent
RSA No. 263 of 2003
Decided On : 18.3.2015
Customary Marriage - Inheritance Rights - 1. The Hindu Succession Act, 1956 - Section 8 - 2. Evidence Act, 1872 - Section 57(1) - 3. Customary Law - [Hindu Succession Act, 1956 - Section 8, Evidence Act, 1872 - Section 57(1)] - The court discussed the legal provisions of the Hindu Succession Act, 1956, particularly Section 8, and the Evidence Act, 1872, Section 57(1), in the context of customary marriage and inheritance rights. The court emphasized the necessity of explicit pleading of custom along with its ingredients and the requirement to establish a custom by clear and unambiguous evidence. The judgment highlighted the importance of proving the alleged custom and the need for evidence to be ancient, certain, and reasonable. The court also emphasized that a custom must not be illegal, immoral, unreasonable, or opposed to public policy. The judgment underscored the strict construction of custom, the obligation to establish it with clear and unambiguous evidence, and the requirement for material customs to be proved properly and satisfactorily.
Fact of the Case:
The plaintiff claimed to be the only surviving female child of her father and sought a declaratory decree that her father never contracted a second marriage. The defendant contested the claim, asserting that she was legally married to the plaintiff's father and was entitled to inheritance rights.
Finding of the Court:
The court found that the defendant's marriage with the plaintiff's father was solemnized in accordance with the prevailing custom in the area, and the evidence presented by both parties supported the validity of the marriage. The court concluded that the plaintiff's appeal was dismissed, and the judgments of the lower courts were affirmed in favor of the defendant.
Issues: The issues included the legality of the defendant's marriage, the inheritance rights of the plaintiff, and the validity of the entries in the relevant records.
Ratio Decidendi: The court emphasized the necessity of explicit pleading of custom along with its ingredients and the requirement to establish a custom by clear and unambiguous evidence. The judgment highlighted the importance of proving the alleged custom and the need for evidence to be ancient, certain, and reasonable. The court also emphasized that a custom must not be illegal, immoral, unreasonable, or opposed to public policy. The judgment underscored the strict construction of custom, the obligation to establish it with clear and unambiguous evidence, and the requirement for material customs to be proved properly and satisfactorily.
Final Decision: The plaintiff's appeal was dismissed, and the judgments of the lower courts were affirmed in favor of the defendant.
Sureshwar Thakur, J.
1. The instant appeal is directed against the judgment and decree, rendered on 10.04.2003, in Civil Appeal No. 25-S/13 of 2002, by the learned District Judge, Shimla, H.P. whereby, the learned First Appellate Court dismissed the appeal, preferred by the plaintiff /appellant and affirmed the judgment and decree, rendered by the trial Court, on 28.02.2002.
2. The plaintiff instituted a suit through her grand father-cum-natural guardian claiming herself to be the only surviving female child of her father late Shri Kanwar Singh besides, she claimed for rendition of a declaratory decree that deceased Kanwar Singh during his life time never contracted a second marriage with Tara Devi and the entries recording the solemnization of such marriage of the defendant with deceased Kanwar Singh, father of the plaintiff are illegal and liable to be quashed and set aside, besides relief for permanent prohibitory injunction for restraining the defendant/respondent herein for succeeding to the estate of deceased Kanwar Singh was prayed for. Further she prayed for relief of a decree for mandatory injunction to recover the amount of ex-gratia grant, leave encashment and GIS from the defendant as already defrayed to the defendant/respondent herein.
3. It is not in dispute that Kumari Kavita is the daughter of one Kanwar Singh, who was employed as a Patwari. Smt. Sushma, the natural mother of Kumari Kavita has admittedly expired in the year 1992. Kanwar Singh, the father of the plaintiff has also admittedly died in the month of July, 1999. After the death of Kanwar Singh, a legal heir certificate has been issued by Sub Divisional Officer (Civil), Chopal, whereby Tara Devi has been declared to be an heir of Kanwar Singh alongwith Kumari Kavita. Tara Devi is stated to have been shown as widow of Kanwar Singh on the basis of a report Rojnamcha, dated 13.7.1999 recorded by Halqua Patwari of Patwar Circle, Pauria.
4. The case of the plaintiff in the suit was that Kanwar Singh never married to any other woman after the death of Smt. Sushma, in the month of November, 1992. It was stated that name of defendant, Tara Devi as a widow of Kanwar Singh was wrongly recorded by Halqua Patwari in his report Rajnamcha No.330, dated 13.7.1999 and it was sought to be declared that this report was wrong and illegal and likewise the legal heir certificate issued by Sub divisional Officer (Civil), Chopal, dated 13.8.1999, in which Tara was shown as a widow of Kanwar Singh, was also wrong and illegal. The plaintiff also prayed for a declaration that the payment of exgratia grant, leave encashment and group insurance scheme to the defendant, Tara Devi was also wrong and illegal because defendant Tara Devi was never married with Kanwar Singh. The defendant was also sought to be restrained from claiming the property and terminal service benefits of Kanwar Singh by issuance of a prohibitory injunction.
5. The defendant/respondent contested the suit by filing written statement wherein she after admitting that plaintiff Kumari Kavita was the daughter of Kanwar Singh has further asserted that after the death of Smt. Sushma, the mother of the plaintiff in the year 1992, Kanwar Singh had married with defendant, Tara Devi according to the local custom. It was further alleged that defendant had remained with Kanwar Singh as his wife till the last breath of Kanwar Singh and it is thus claimed that defendant, Tara Devi, along with plaintiff, Kumari Kavita, were the legal heirs of Kanwar Singh. It is asserted that the report Rojnamcha showing the marriage between defendant and Kanwar Singh was also correctly recorded and further that the legal heir certificate issued by the Sub Divisional Officer in favour of Tara Devi was also correct. The defendant also took the plea that the terminal benefits, after the death of Kanwar Singh, have been also rightly paid to Tara Devi. On these allegations, the defendant prayed for the dismissal of the suit of the plainti
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