Holding

The Hindu Widow Remarriage Act, 1856 cannot be applied retrospectively to a 1932 transfer, and the plaintiff’s suit is barred by limitation, so the appeal is allowed and the suit dismissed.

Summary

The plaintiff Krishan Dutt sued for a one‑third share and partition of land that his father had allegedly inherited from his brother‑in‑law after the widow Gangi remarried the brother Bala Ram, invoking a custom of "illaqua" whereby a widow’s property passes to the brother she marries. The defendants (appellants) proved that the 1932 compromise deed, witnessed by the parties and Panchayat, transferred the property to Bala Ram, and that the widow did not lose her rights upon remarriage. The High Court held that the Hindu Widow Remarriage Act, 1856 made the widow lose all rights, but the Supreme Court found that the Act was not applicable retrospectively to a transaction predating its enforcement in 1950. The Court also held that the plaintiff’s suit was barred by limitation, as he attained majority only in 1956 and filed the suit in 1968. Consequently, the appeal was allowed, the suit dismissed, and the High Court judgment set aside.

Issues considered

Whether the Hindu Widow Remarriage Act, 1856, applicable from 01‑01‑1950, can retrospectively affect a property transfer made in 1932 under local custom.
Whether the plaintiff’s suit filed in 1968 is barred by limitation.
Whether the parties were governed by the custom of "illaqua" that allows a widow’s property to pass to the brother she marries.

Legislation cited

Code of Civil Procedures. Section 157
Limitation Act, 1963

Subjects

Hindu lawWidow remarriageCustom of illaquaPartitionLimitationRetrospective effectProperty inheritanceEstoppel

Judgment

A RAM SWAROOP AND ANR.
v.
MAHINDRU AND ORS.

DECEMBER 18, 2003

B [Y.K. SABHAR\.i/AL AND DR. AR. LAKSHMANAH, JJ.]

Hindu Law:

Hindu Widow Remarriage Act, 1856 (as enforced in Himachal
Pradesh w.e.f 01.01.1950 vide Merged States (Laws) Act, 1~49-Section
C 2-Applicability of-Widow remarrying brother of deceased husband-
According to the custom prevailing in the community in the area property
inherited by widow ji·om her deceased husband succeeded by her second
husband-Compromise deed executed in year 1932, signed by widow,
husband's brothers, panchas and other witnesses and properties passed to
D the second husband as exclusive owner-Second husband died in 1956 and
his sons-defendants became the owners-Husband's brother also died and
his sons-plaintifffiled suit for declaration claiming 113 share in property
owned jointly with defendants and also partition-Defendants pleading
that plaintiffs have no cause of action since the parties are governed by
E the custom prevailing and plaintiffs father consented to the document
relating to the transfer of property of first husband in favour of second
husband-Suit dismissed by trial court, however appeal allowed-High
Court also decided in favour of plaintiff-On appeal held: Subsequent
applicability of the 1856 Act can have no retrospective effect and cannot
take away the right of the widow who got the property in 1932-Widow
F fully competent to inherit all properties and on remarriage she does not
lose her rights, title in the estate of her deceased husband as parties
governed by custom prevailing-Also the evidence on record proved that
on remarriage widow did not f01feit her right to suit properties and did
not divest her of her right in properties-Furthermore, plaintiffs father
G consented to the document relating to the transfer of property of first
husband in favour of second husband-Plaintiff attained majority in 1956
and filed suit in 1968 as such suit barred by time-Also as rights were
relinquished by plaintiff's father it could not be challenged-Hence, suit
filed by plaintiff dismissed and judgment of High Court set aside-
H CustomaT)' Laws-Limitation Act, 1963.
1064
RAM SWAROOP v. MAHINDRU 1065

M-plaintifrs father, B-appellant's father and K are brothers. A
Plaintiff, father of respondents in the present appeal, filed suit for
declaration claiming property owned jointly with the appellant-defend-
ants and partition of his share in 1968. Appellants contended that
respondents-plaintiff have no cause of action or locus standi to file suit.
It was submitted that K died about 32 years ago and his widow inherited B
his properties. One year later in accordance with the custom prevailing
in the area the widow became wife of B, father of the appellant-
defendants and brother of plaintiff's father and B succeeded to the
properties belonging to the first husband. A compromise deed was
executed in the year 1932 and was signed by the widow, Panchas,
plaintifrs father and other witnesses and the properties passed to B- C
appellant's father which he occupied as exclusive owner including the
suit properties. He used the properties without any interruption,
constructed shops at his own cost. Plaintiff's father died in 1942.
B-appellant's father died in 1956 and the appellant-defendants became
the owners and in possession of the properties. Appellants also submit- D
ted that they are in adverse possession of the land which their father was
also in adverse possession. Trial Court dismissed the suit. Respondents
filed an appeal. District Judge allowed the appeal. Appeilants then filed
regular second appeal. High Court held that on remarriage the widow
lost all her rights, title in the estate of her deceased husband and as such E
she could not have transferred such rights, title and interest in favour
of the second husband; and that the document relating to the transfer
of the estate of K in favour of B does not appear to have been given
effect to and dismissed the appeal. Hence the present appeal.

Appellant-defendants contended that the widow on remarriage F
would not lose all her rights in the property.

Respondent-plaintiffs contended that the High Court correctly
interpreted the provisions of the Hindu Widow Remarriage Act, 1856;
that the widow on her remarriage with B-father of the appellant lost all G
her rights in the property which she inherited from her deceased
husband and as such she could not have transferred such rights, title
and interest in favour of B; that the document relating to the transfer
of estate of Kin favour of B would not confer any right, title or interest
on B; and that the said document was not given effect to and acted upon. H
I 066 SUPREME COURT REPORJS [2003) SUPP. 6 S.C.R.
A Allowing the appeal, the ~ourt

HELD : 1.1. It is se.ttled law that a custom must be pleaded and
proved. In the instant case, defendants specifically pleaded in the
written statement custom prevalent in the community in the area that
B on the death of a brather his widow is remarried by the other brother
and the property .belonging to the former is succeeded by the latter,
whom the widow remarries and also proved the custom beyond any
reasonable. doubt and the inheritance of the property by B and the
enjoyment of the same by him till his death and thereafter, the
appellant-defendants' right to inherit the said property. Further, a
C reading of the compromise deed coupled with the specific averment
made in the written statement an~ of the oral evidence of the widow
and others also establish the custom pleaded by the defendants.
[1079-E-G]

D 1.2. The evidence available clearly proves the defendants case that
on remarriage the widow would not forfeit her right to the suit properties
which she got from her husband earlier and also that marriage with B
does not divest her of her right in the properties whereas the respondent-
plaintiffs have failed to prove otherwise on the custom pleaded, proved
E and established by the defendants. [1079-H; 1080-A]

.. 1.3. The conclusion gf High Court while interpreting the provi-
sions of the Hindu Widow Remarriage Act, 1856 that consequent upon
the remarriage the widow loses all her rights, title in the estate of her
F deceased husband is baseless and incorrect. The main question raised
before the High Court was that after the marriage oftbe widow with 8-
father· of the appellant, all rights of the properties inherited· by the
widow from her husband devolved in Band he has been enjoying ;all the
properties exclusively with the consent and knowledge of the other
brothers. High Court overlooked this important fact and also wrongly
G observed that the document relating to the transfer of the estate ofK in
favour of B does not appear to have been given effect to. [1080-C-E]

1.4. The Hindu Widows Remarriage Act, 1856 came to be
enforced in the area in question w.e.f. 01.01.1950 vide ~he Merged
H States (Laws) Act, 1949 whereas the document-compromise de.ed was
RAM SW AROOP v. MAHINDRU 1067

executed in the year 1932 signed by the widow, other Panchas, father A
of the plaintiff and the other witnesses. Therefore, the provisions of the
1856 Act was not applicable to the area, it cannot have retrospective
effect and cannot take away the right of widow who got property in
the year 1932. The compromise deed does not debar her from losing
all her rights in the properties and she was fully competent and entitled B
to inherit all the properties. (1080-C-EJ

1.5. The consent for compromise was given by the father of the
plaintiff who was one of the signatories to the compromise deed and as
such the appellants got a valid title .which cannot be challenged by the
respondents and once the consent having been given it cannot be C
£hallenged by his successors or withdrawn unless the same has been
obtained by fraud and/or is contrary to law. There is no such plea by
respondents in the present proceedings nor it is the case of the respondents
that there was any fraud. High Court failed to appreciate the same and
also that the respondent had not claimed the forfeiture, nor the provisions D
of the 1856 Act were applicable. [Hl81-A-B; 1080-HJ

1.6. 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 the suit. Further, High Court and first appellate Court have E
also acted with material irregularity and failed to appreciate the fact
that the plea of partition/compromise was supported by documentary
evidence. [1080-B, 1081-F]

1.7. In the instant case, numerous dQcuments have been produced F
on record in the shape of rent notes, documents from the Municipal
Committee regarding payment of taxes showing exclusive ownership and
possession of the appellants or their predecessor. Plaintiff or his
predecessors never dealt with the said property in any capacity. The
exclusive possession of the appellants, construction ofadditional building
in the land in question and ouster of the respondent-plaintiffs was duly G
established by the documents mentioned above. (1082-G-H; 1083-A]

1.8. Once the father of the plaintiff has relinquished the rights,
it 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 H
1068 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A was filed. Plaintiff-respondent was born on 07,10.1938, attained ma-
jority in 1956 and filed the instant suit on 17.10.1968. Therefore, trial
Court rightly held that the suit of the respondents was barred by
limitation. However, appellate Court and High Court have failed to
give any reasoning as to how the suit of the respondents was within
B time. [1081-B-D)

1.9. The Hindu Widow Remarriage Act and the Bhagat State
Gazette -- Part A and a passage in the Simla District Gazette to the
effect that a widow if she remarries whether in or out of her husband's
family is not entitled to his property. The instant case is different from
C the case mentioned in the gazette. There is no evidence on the record
to show that the provisions of the said Act, the passage in the Gazette
were applicable in the community in the area. Secondly, the property
was transferred by virtue of the custom where the r.espondents and
appellants were a consenting party and the property having been
D passed on to the father of the appellant cannot be either taken back
or challenged on the ground that the properties still .continue to be
joint. Above all, there is no plea in the plaint to the said effect and the
Bhagat State Gazette has not been marked as an Exhibit as such no
reliance can be placed on the Gazette. [1082-B-D)
E CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4459 of
1997.

From the Judgment and Order dated 7.1.97 of the Himachal Pradesh
High Court in R.S.A. No. 66 of 1987.
F
Ashok Gorver, Ashok Kumar Chhabra, Ms. Anupama Grover and
Ms. Madhu Moolchandani for the Appellants.

E.C. Agrawala, Anand Sharma, Mahesh Agarwal (NP) and Rishi
G Agrawal (NP) for the Respondents.
The Judgment of the Court was delivered by
I
DR. AR. LAKSHMANAN, J. : The above appeal was filed by the
defendants against the order dated 07.01.1997 passed by the High Court
H o(Himachal Pradesh at Shimla in R.S.A. No. 66 of 1987.
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1069
The brief facts leading to the filing of the present appeal are:- A
One Krishan Dutt, who is the father of the respondents herein, (LRs
of plaintiff) filed a suit for declaration in the Court of Senior Sub-Judge
Mahasu at Shimla and prayed for a decree of declaration thereby declaring
the respondent to be in joint possession of the properpty having l/3rd share B
and for partition of his share in respect of shops, vacant plots and for a
decree for rendition of accounts. The respondents alleged in the plaint that
the appellants/defendants are joint owners of the property detailed in the
plaint that the respondents have got l/3rd share in the properties and are
accordingly entitled to l/3rd share by partition, the parties being in joint C '

possession of the properties.

The appellants filed their written statement and apart from taking
legal objections have contended that there is no cause of action nor locus
standi of the respondents to file the suit that Kanshi Ram (first husband
of Gangi) died ubout 32 years ago and Gangi the widow of Kanshi Ram D
inherited the properties. It has been further submitted that after about one
year of the death of Shri Kanshi Ram, Smt. Gangi in accordance with the
customs prevailing in the area became the wife of Bala Ram, the father
of the appellants/defendants and on her marriage with the father of the
appellants, all her rights and interests in the properties which she had E
inherited from her husband were given to Bala Ram and thereupon Bala
Ram occupied the said properties as exclusive owner including the
properties in the suit and on the demise of Bala Ram in 1956, the
appellants/defendants became the sole owners and in possession of the
properties. It was further submitted that the father of the respondents/
plaintiffs by name Mansa Ram died in 1942. It has been further submitted F
that Smt. Gangi had delivered all the properties to Bala Ram (second
husband) in a private partition and were being used by Bala Ram without
any interruption. As regards the shops, it was submitted that the shops were
constructed by the father of the appellants Bala Ram at his own cost and
had a portion of land which Smt. Gangi had inherited from her husband G
and delivered to Bala Ram and that Bala Ram was the exclusive and sole
owner of this property and on demise, the property has fallen in exclusive
possession of th~ appellants. It was also pleaded that, in any case, the
appellants are in adverse possession of the land which they are occupying
out of the land in the suit which their father was also in adverse possession. H
1070 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A The chart giving the details of the parties to this action is given
below:-

Ram Dutt

Thachu Sahibu Balak Ram
B
I
Luru Ram Ram Saran
I
Chana
I
Palak Ram

I (Died) (Died)
I

n
Ganga Ram

c Mathu@ Mansa Ram Bala Ram Smt. Gangi
Mast Ram (Died in (Died in
1942) 1956) Kanshi Ram Smt. Gangi
(father of (Second Husband (died in 1930 (widow)
plaintiff) of Gangi) first husband
D

Shibi
I
Krishan Dutt
Smt. Mathra
of Gangi)

(Daughter) (Plaintiff)
I
E
Mahindru Som Dutt Usha Push pa
(wife) (soi;) (daughter) (daughter)
I I
Plaintifffs LR's Respondents in Supreme Court
F
Savitri Rama Somawati Indra Shanti Jai Dutt Ram Swarup
S/o Bala Ram S/o Bala Ram

~
Defendants
G Appellants in Supreme Court

On the pleadings, the trial Court framed 9 issues in support of their
case. The respective parties tendered their oral and documentary evidence.

H The learned subordinate Judge came to the conclusion that the onus
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1071
to prove the joint possession of the properties and the respondents having A
I/3rd share in the properties was on the respondents/plaintiffs and that the
respondents have failed to adduce any positive evidence. The trial Court
has also observed that in the jama bandi for the year 1941-42 Smt. Gangi,
widow of Kanshi Ram has been shown as owner of 2/3rd share in the
property and the jama bandi relates to the year 1945-46 and 1949-50. Shri B
Bala Ram, Mast Ram and sons of Luru Ram and Krishan Dutt (plaintiff)
son of Mansa Ram are shown as owner of the land and jama bandi for the
year 1957-58 and Ram Swarup and Jai Dutt (defendants/appellants) are
shown as owner of 2/3rd share of the land. The lower Court, therefore,
came to the conclusion that on the death of Kanshi Ram, Smt. Gangi had
remarried Shri Bala Ram and as such all the properties of Kanshi Ram with C
the consent of all his brothers came to her possession on the basis of a
written proof on the record of the Court. In conclusion, the lower Court
came to the conclusion that the appellants have fully established by their
evidence that late Shri Bala Ram was exclusively in possession of the
properties left behind by Shri Kanshi Ram. The trial Court also came to D
the conclusion that the plaintiffs/respondents have failed to discharge their
onus on the plea raised in the plaint by letting sufficient evidence on record.

Against the order of dismissal of the suit, the plaintiffs/respondents
preferred an appeal before the High Court of Himachal Pradesh. The said E
appeal was ultimately assigned to the Court of District Judge, Solan and
the learned District Judge vide order dated 20.12.1986 accepted the appeal
of the respondents/phintiffs and set aside the judgment of the senior sub-
judge and passed a decree in favour of the plaintiffs/respondents and
against the appellants/defendants. The learned District Judge, in his order, F
observed that it stood established that Smt. Gangi remarried Bala Ram and
there is no dispute to the marriage of Smt. Gangi with Shri Bala Ram by
any of the parties and the factum of remarriage and the transfer of
properties has been stated in one document. However, the learned District
Judge observed that Smt. Gangi on her remarriage forfeits her rights over
the properties of her first husband Kanshi Ram which she inherited from G
him. Therefore, the learned District Judge held that on remarriage of Smt.
Gangi the estate inherited by her from her husband devolved in favour of
Mast Ram, Bala Ram and sons of Luru Ram, namely, Mansa Ram, father
of the plaintiff and Krishan Dutt (plaint; ft) in equal shares and accordingly
the plaintiffs/respondents came to occupy I/3rd share in joint properties. H
1072 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A As regards partition, the District Judge held that it was not acted upon and -r
the parties considered themselves to be the joint owners of the land in
dispute and, therefore, the question of the appellants being in the adverse
possession in the joint properties will not arise at all and accordingly set
aside the judgment and order of the trial Court and allowed the appeal of
B the plaintiffs/respondents. Against the order of the learned District Judge,
the appellants/defendants filed a regular second appeal before the High
Court of Himachal Pradesh at Shimla and contended in the appeal that the
learned District Judge has committed a grave irregularity by not adverting
to the entire claim of the appellants and erroneously allowed the appeal
in favour of the respondents herein. It was further contended by the
C appellants that the lower appellate Court has totally misconstrued the
pleadings of the parties especially the plea set-up in the written statement.
Likewise, it· was submitted that the first appellate Court has failed to
appreciate the plea that on the death of Kanshi Ram, his properties were
inherited by Smt. G~ngi as after about one year of the death of her husband
D Smt. Gangi in accordance with the customs of the illaqua became the wife
of Bala Ram and all her rights and interests in the properties which she
had inherited from her husband with the consent of all the brothers in a
panchayat vested in Bala Ram and ever since Bala Ram has occupied the
properties as exclusive owner.
E
The High Court ofHimachal Pradesh, ignoring the submissions made
by the appellants, by interpreting the provisions of the Hindu Widow
Remarriage Act, 1856 came to a conclusion that on remarriage Smt. Gangi
lost all her rights, title in the estate of her deceased husband and, therefore,
sl\e could not have transferred such rights, title and interest in favour of
F Bala Ram and Exhibit PX which is a writing relating to the marriage and
transfer of the title would not confer any right, title or interest on Bala Ram.
The High Court also observed that the document relating to the transfer
of the estate ofKanshi Ram in favour of Bala Ram does not appear to have
been given effect to and the fact that the document was riot given effect
,Q and mutation of the inheritance was accepted .can be inferred from the
evidence that the parties are enjoying the properties jointly.

Aggrieved by the judgment of the High Court, the unsuccessful
defendants preferred the Special Leave Petition. Leave was granted on
H 09 .07 .1997 and the operation of the impugned judgment was stayed during
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1073
the pendency of the appeal and it was directed that no third party interest A
, . be created in the meanwhile by either party.

We heard Mr. Ashok Grover, learned senior counsel for the appellants
and Mr. E.C. Agrawala, learned counsel for the respondents. We have
perused the plaint, written statement, replication and the orders passed by B
all the Courts and also the evidence tendered both oral and documentary.
Though several contentions were raised before the Courts below by both
the parties, the learned counsel for the appellants confined his argument
in regard to the right of the w_idow to inherit the property as per the customs
prevailing in the area and as to whether the provisions of the Hindu Widow
Remarriage Act, 1856 were applicable to the area in question. It was also C
argued by learned counsel for the appellants that Smt. Gangi (widow) on
remarriage does not lose all her rights in the property and elaborated this
argument with reference to the specific pleadings and also on oral and
documentary evidence.

Mr. E.C. Agrawala, learned counsel appearing for the respondents
D
submitted that Smt. Gangi on her remarriage with Bala Ram loses all her
· rights in the property even though there is no dispute to the marriage of·
Smt. Gangi with Shri Bala Ram by any of the parties. In this regard, he
invited our attention to the provisions of the Hindu Widow Remarriage Act,
1856 and certain provisions of the Himachal Pradesh Land Code. \It was E ·
further submitted by him that after the marriage of Smt. Gangi with Bala
Ram (father of ·he appellants herein), Smt. Gangi lost all rights in th.,
properties inherited by Smt. Gangi from her husband. He would further
argue that the High Court by properly interpreting the provisions of the
Hindu Widow Remarriage Act, 1856 came to a correct conclusion that on F
remarriage Smt. Gangi lost all her rights, title in the estate of her deceased
husband and, therefore, she could not have transferred such rights, title and
interest in favour of Bala Ram. It was also his contention that Exhibit PX
would not confer any right title or interest on Bala Ram and that the sairi
document was not given effect to and acted upon. G
On the above pleadings and arguments, the' following important
questions of law would arise for consideration:-

a) Whether the subsequent applicability of the Hindu Widow
Remarriage Act, 1856 which came to be enforced in the area H
1074 SUPREME COURT REPORTS [2003) SUPP. 6 S.C.R•

.A in question w.e.f. 0I.01. I 950 vi de the Merged States (Laws)
Act, 1949 can retrospectively take away the rights of Smt.
Gangi who got the prope1ty under family custom of illaqua
by a deed of the year I 932 to which document the father of
the plaintiff Mansa Ram was a party who died in 1942;

b) Can the plaintiff Krishan Dutt who was born on 07.10.1938
and attained majority in 1956 maintain a suit as framed on
17. l 0.1968 and whether the said suit is barred by limitation;

c) Whether the parties were governed by the custom of the
C illaqua.

We have perused the plaint. In the plaint, a very short one, the
respondent has alleged that he has got" 1/3rd share in the entire property
and as such he is entitled to I/3rd share by partition, the parties being in
joint possession of the properties. In para 3 of the plaint, the respondent
· D has stated that he filed an application for partition of land before the
Assistan:t Collector, Mahasu but the Department raised a question of title
and the· Assistant Collector directed him to get the declaration in respect
of the 'title from a competent Civil Court and hence the suit. In para 4 it
is avened that the defendant no. I is realising the rentals of the shop and
E has i;i.ot rendered accounts to the plaintiff and hence he is liable to render
accounts and that the plaintiff is entitled to have the shops partitioned and
to have separate possession of the same to the extent of I/3rd share.

A detailed written statement was filed on behalf of the appellants/
defendants raising the following objections:
F
I. The suit is not within time;

2. The plaintiff is estopped from filing the suit due to his own
acts, deeds, aquisence, admission and conduct of his father
(Mansa Ram) and mother in the written statement.
G
In the written statement a specific plea has been raised in regard to
the family custom of the ill aqua and the inheritance of the suit properties.

It is useful to reproduce the said paragraphs;

H "That out of the land in suit, land measuring 63 Bighas 6 Biswas
I

"I
'
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1075

was previously owned by Shri Kanshi Ram to the extent of 213 A
share and Shri Bala Ram. Shri Mansha Ram and Mathu alias Mast
Ram 1/3 share. Shri Kanshi Ram was in occupation of land
separately and Sarvashri Bala Ram, Mansha Ram and Mathu were
holding the land separately due to private partition. Shri Kanshi
Ram died about 32 years ago. Shrimati Gangi, his widow , B
inherited his properties. After about one yt:. ..r oi' the death of her
husband, Shrimati Gangi, in accordance with the custom of the
illaqua, became the wife of Shri Bala Ram, father of the defend-
ants and gave up all her rights and interest in the properties, which
she had inherited from her husband, with the consent of Shri
Mansha Ram, father of the plaintiff and Shri Mathu alias Mast C
Ram, in a Panchayat, in favour of Shri Bala Ram and since then,
Shri Bala Ram occupied, as exclusive owner, the property includ-
ing the lands, held by Shri Kanshi Ram during his life time. After
the death ofShri Bala Ram, the defendants are the sole owner and
are in occupation of the lands, delivered by Mst. Gangi, as stated D
above. The plaintiff has no right, title or interest in the said
2/3rd share of Shri Kanshi Ram.

(e) That the Revenue entries, showing the plaintiff and defendants
as joint owners and showing the defendants to be owners to the
extent of 213 and the plaintiff to the extent of 1/3, are totally E
wrong, against facts, illegal and without jurisdiction and are in-
operative against the rights of the defendants. The parties are not
in joint possession of the lands in suit and the allegations of the
plaintiff are false to his knowledge. The Revenue authorities had
also wrongly entered mutation No. 303 relating to Ikhraj Nam of f
Mst. Gangi, which was attested on 17 .1.1949. The orders of
Revenue authorities on the said mutation are also illegal, unau-
thorised and without jurisdiction and are in-operative against the
rights of the defendants.

3. Para 4 is totally denied. The defendants are sole and exclusive G
owners and are in possession of the shops in question. The
plaintiff has no right, title or interest therein and has no locus
standi to claim partition of the shops or rendition of account of
income of the said property to which the defendants are exclu-
sively entitled." H

-.
1076 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A In the replication statement filed by the plaintiffs/respondents herein
the averments made in para lA as above has been simply denied. Mr.
Ashok Grover, also invited our attention to the evidence tendered by the
defendants and in particular D.W. 8 (Smt. Gangi) It is beneficial to
reproduce here the evidence in Chief examination of D.W. 8:
B "Translation of the statement of Smt. Gangi widow of Bala Ram
r/o Sofan village age 56 years, occupation House-holds .... On S.A.

Shri Kanshi Ram deceased was my husband. Shri Kanshi
Ram used to live separately from S/Shri Bala Ram, Mathu Ram
c and Mansha Ram. Shri Kanshi Ram died 38/39 years back. He
was in possession of an area of 60 bighas of land at the time of
his death. On the death of Kanshi Ram I got his entire property
in succession. I remarried Shri Bala Ram after one year from the
death ofShri Kanshi Ram. The decision about this remarriage was
taken in the Panchayat. S/Shri Devi Singh, Dhani Ram, Paras
D Ram contractor Bhoval and Ram Nath r/o village Solan, Mathu,
Mansha Ram, Bala Ram, Ram Singh and Ram Na!h my brothers
were present in that Panchayat. This Panchayat's meeting was
held in tny house. I was 18 years old when Kanshi Ram expired.
My brothers arranged the meeting of this Panchayat in order to
E make necessary arrangements about my maintenance. Shri Bala
Ram had accepted me as his wife with the consent of S/Shri Mathu ...
and Mansha Ram. The property belonging to Kanshi Ram wa,s
given to Bala Ram (objected to qua the document the copy of
which is marked 'K' already on record). I have heard the contents
F of the original writing marked 'K'. It is the same writing which
was scribed at that time. Its contents were read over and I had
appended my signatures on it. All had appended their signatures
or thumb-impressions on it. There is a custOm in our illaqua that
on remarrying another person that is to say that on the death of
a brother his widow is remarried by the other brother and the
G property belonging the former is succeeded by the latter, whom
the widow be remarries. Mansha Ram and Mathu were called
because their consent was to be obtained. They had consented
to these proceeding:-

H From that day onwards, Shri Bala Ram became the owner
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1077

of the moveable and immoveable property of my first husband. A
He had taken over the possession also of that property. Thereafter
Bala Ram lived with me".

In the cross examination nothing has been elicited from D.W. 8 Smt.
"Gangi to dislodge her case in regard to the custom of illaqua and her B
remarriage with Shri Bala Ram after the death of Kanshi Ram on the
decision about the remarriage in the Panchayat. The evidence tendered by
D.W. 8 has been corroborated by D.W. 6 Ram Nath whose occupation is
zamindari. He deposed that after 0ne year from the death of Kanshi Ram
he called a meeting of Panchayat and enquired from Mansha Ram (father C
of plaintiff) Matu Ram and Bala Ram who were the_ near relations of Smt.
Gangi about her future maintenance and upon this with the consent of all
Smt. Gangi settled with Bala Ram and the property of Kanshi Ram was
given to Bala Ram and since then, Bala Ram became the owner of that
property. He also deposed about the writing which was executed in the
presence of the Panchayat and he also identified the signatures on this D
writing. He would further depose that this writing was read over to all the
witnesses and Mast Ram, Mansa Ram (father of the plaintiff) Bala Ram
and Smt. Gangi have appended their signatures and thumb impressions on
the document in his presence. D.W.9 Ram Swarup (defendant) has also
deposed about the remarriage of Gangi with Shri Bala Ram after the death E
of Kanshi Ram and the inheritance of the property by Bala Ram etc. and
the execution of the documents in the presence of Panchayatdars. He also
deposed that on behalf of the plaintiff Krishan Dutt his mother Smt.
Kalavathi participated in that partition. P. W. l is a teacher in Government
High School. This evidence will be ofno assistance. P.W.2 is Krishan Dutt, F
plaintiff himself. He did not deny the marriage. On the other hand, he
said on the death of Kanshi Ram, Smt. Gangi had remarried Bala Ram
according to the custom and that he has simply denied to a suggestion made
as to whether he was aware of remarriage of a widow with any of the
brothers of earlier husband the property inherited by her from that husband
would stand devolved to her newly married husband with the consent of G
other brothers of her husband. He also simply denied that Smt. Gangi had
remarried Bala Ram with the consent of his father Mansha Ram.

We shall now refer to the crucial document, the compromise deed
marked as Exhibit PX. The document reads thus: H
1078 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A "COMPROMISE DEED

"Since Pt. Kanshi Ram s/o Pt. Ganga Ram r/o Village Solan
had expired issueless on the 18th Manghar, 1967 and his widow
is in possession of the prope11y in her capacity as an owner. The
aforesaid widow is quite young. Since the death anniversary of
B
Kanshi Ram has been solemnised yesterday i.e. the 8th Posh, 1988
B.K. and now the aforesaid widow and her brothers S/Shri Pt.
Ram Nath and Pt. Ram Singh s/o Pt. Ram Saran, r/o Village
Dadayog desire that necessary arrangements for her future live-
lihood be made. Upon this the following Panches were appointed
c by these people and the meeting of Panchayat has been held today.
_.

Mehta Paras Ram contractor r/o Village Chawal, Mehta
Dhani Ram r/o Village Mungru Illaqua Patiala and Mehta Devi
Singh r/o Village Changar were appointed from the Biradari
D (Brotherhood) and Ram Nath was appointed from Solan. Since
Pt. Bala Ram, Pt. Mansha Ram and Pt. Mast Ram are the
successors of Pt. Kanshi Ratn who died issueless, so all of them
were asked about the future livelihood of the widow as she did
not want to leave that house. Pt. Bala Ram replied that we had
been helping the widow in all respects for the last one year and
E
similarly we would be helping her in future. Upon this the widow
and her brothers expressed the desire that the widow is too young
and at the prime of her age and thus she should not be helped in
that way. One of the right-holders should live at her house, help
her and keep her as his wife in accordance with the local custom.
F On enquiring Mst. Gangi widow ofKanshi Ram preferred to keep
Bala Ram at her house and to remain as his wife. Upon this, the
matter was enquired from Mst. Murtu wife of Bala Ram and she
also consented to it and agreed to all the points. Other brothers
of Bala Ram have also agreed to this effect. For aforesaid reasons,
G Mst. Gangi widow of Pt. Kanshi Ram was kept as wife of Pt. Bala
Ram in the presence of the Panchayat and it was decided that from
today onward Pt. Bala Ram will be the owner and possessor of
the moveable and immoveable property of the deceased. The
brothers of Pt. Bala Ram viz. S/Shri Pt. Mansha Ram and Pt. Mast
Ram have agreed to it happily. Therefore, this compromise deed
H
RAM SWAROOP v. MAHINDRU [LAK~HMANAN, J.] 1079

has been reduced into writing with the consent of all concerned A
including the brothers of Mst. Gangi, so that it may form a part
of record.

9th day of Posh, 1988.

Sd/- (In Hindi) Mst. Gangi. Sd/- (In Hindi) Bala Ram B
Sd/- (In Hindi) Mansha Ram Mansia. Sd/- (In Urdu) Mast
Ram Thumb Impression of Mst. Murtu & Sd/- (In Urdu) Ram
Singh Village Dadyog.
Signatures of Panches.
Encircled ] Sd/- (In Hindi) Ram Nath Solan C
In red and ] Sd/- (In Hindi) Mehta Paras Ram Chawal
Marked as ] Sd/- (In Hindi) Dhani Ram Mangru
Kil ] Sd/- (In Hindi) Devi Changar.
Seals of copying Agency"

The above document was signed by Smt. Gangi in Hindi Bala Ram, D
Mansha Ram (father of the plaintiff) and Mansia in Hindi one Mast Ram
who is the brother of Bala Ram has signed in Urdu. One Murtu affixed
his thumb impression on the document, one Ram Singh Village Dadyog
has also signed in Urdu. The document was attested by 4 persons in Hindi
who are near relations. E
A reading of the above documents coupled with the specific averment
made in the written statement and of the oral evidence of Smt. Gangi and
others clearly establish the custom pleaded by the defendants in the written
statement. It is a settled law by a catena of decisions of this Court and F
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 prope1ty by Bala Ram and ~he enjoyment of the same by him till his
death and thereafter, the defendants/appellants right to inherit the said G
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 H
1080 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A 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
B fact that the partition took place v ith the consent of the parties including
1

the father of the respondents and as such the respondents are estopped from
filing this suit.

The High Court, in our opinion, by misinterpreting the provisions of
C the Hindu Widows Remarriage Act came to a wrong conclusion that on
remarriage Smt. Gangi lost all her rights, title in the estate of her deceased
husband. The main question which was raised before the High Court was
that after the marriage of Smt. Gangi. with Bala Ram (father of the
appellant) all rights of the properties inherited by Smt. Gangi from her
husband devolved on Shri Bala Ram and Bala Ram has been enjoying all
D the properties exclusively with the consent and knowledge of the other
brothers. This important fact has been overlooked by the High Court. The
High Court also wrongly observed that the document relating to the transfer
of the Estate ofKanshi Ram in favour of Bala Ram does not appear to have
been given effect to. The further observation of the High Court that Smt.
E Gangi on her marriage loses all her rights in the properties as per the
provisions of the Hindu Widows Remarriage Act is baseless and incorrect.
It is seen from the records that the Hindu Widows Remarriage Act, 1856
came to be enforced in the area iri question w.e.t: 01.01.1950 vide the
Merged States (Laws) Act, 1949 whereas the document compromise deed
F 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 qoes not debar her
G from losing all her rights in the properties and she was fully competent and
entitled to inherit all the properties.

The High Court, in our opinion, has also miserably failed to appre-
ciate the fact that there was no pleading by the respondents in their plaint
and the replication nor they had claimed the forfeiture nor the provisions
H of the Hindu Widow Remarriage Act were applicable. We have already
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.] 1081

i:iqticed the consent for compromise was given by the father of the plaintiff A
who was one of the signatory to the compromise deed and once the consent
having been given cannot be challenged by his successors or withdrawn
unless the same has been obtained by fraud and/or is contrary to law. There
is absolutely no such plea by the respondents in the present proceedings
nor it is the case of the respondents that there was any fraud. B
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/(p\aintiffs - Krishan Dutt, who
was born on 07.10.1938 and attained majority in October, 1956) and filed C
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
D
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 PS. 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 E
plaintiff) and Smt. Kalavathy (mother of the plaintiff). Exhibits marked
X, DX and DX I which appears the thumb impression of Smt. Kalavathi
(mother of the respondent/plaintiff) shows that the partition was duly acted
upon.

The High Court and the first appellate Court have acted with material
F
irregularity and failed to appreciate the fact that the plea of partition/
compromise was supported by documentary evidence.

In the instant case, the father of the resJ..londent was a consenting party
as such on the execution of the document, properties having been passed G
on to the father of the appellants, the appellants got a valid title which
cannot be challenged by the respondents.

Yet another reason which prompted the High Court to decide against
the appellants was that consequent upon the remarriage under Section 2 H
1082 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A of the Hindu Widow Remarriage Act, the widow loses all her rights and
interest possessed by her in the property by her husband and she would,
therefore, be not entitled to claim partition of the share of the deceased
husband. In this context, learned counsel for the respondents/plaintiffs
invited our attention to the provisions of the Himachal Pradesh Land Code.
B The Hindu Widow Remarriage Act and the Bhagat State Gazette - Part A
and a passage in the Simla District Gazette to the effect that a widow if
she remarries whether in or out of her husband's family is not entitled to
his property. In our opinion, the present case on hand is different from
the case mentioned in the gazette. There is no evidence on the record. to
C show that the pra.visions of the said Act, the passage in the gazette were
applicable to the area in question and to the community in particular.
Secondly, the property was transferred by virtue of the custom where the
respondents/appellants were a consenting party and the property having
been passed on to the appellants father cannot be either taken back or
challenged on the ground that the properties still continue to be joint.
D Above all, there is no plea in the plaint to the said effect and that the Bhagat
State Gazette has not been marked as an Exhibit. Therefore, no reliance
can be placed on the Gazette. Mr. Agrawala has argued that withdrawal
of the earlier suit by the parties and mutation of records in favour of the
respondents/plaintiffs jointly cannot now be challenged by the parties.
E This contention has no force. Late Bala Ram has instituted a suit for
declaration. The suit was dismissed on 27.06.1958 by the sub-Coun
Exhibit P-12. The defendants preferred an appeal in the District Court. In
the said Court, the appellants therein preferred an application under Order
XXIII Rule 1 read with Section 157 CPC for permission·to withdraw the
F suit with permission to file a fresh suit as is clear from the perusal of the
records. The learned District Judge had allowed the application and
granted leave to the appellants therein to withdraw from the suit with
liberty to institute a fresh suit in respect of the same subject matter. Thus,
it is seen that from the withdrawal of the suit, the parties are relegated to
the position in which they were before the institution of the previous suit.
G The defendants/appellants or their father had not instituted a fresh suit and
not instituting the suit does not have any effect on the present suit. In the
instant case, numerous documents have been produced on record in the
shape of the rent notes, documents from the Municipal Committee
regarding payment of taxes showing exclusive ownership and possession
H of the appellants or their predecessor Shri Bala Ram Shri Krishan Dutt (the
RAM SWAROOP v. MAHINDRU [LAKSHMANAN, J.) 1083

plaintiff) or his predecessors never dealt with the said property in any A
capacity. The exclusive possession of the appellants, construction of
additional building in the land in question and ouster of the respondents/
plaintiffs was duly established by the above documents.

We, therefore, hold that the appellants/defendants are entitled to B
succeed in this appeal and the suit filed by the respondents herein is liable
to be dismissed.

In the result, we answer question No. (a) in the affirmative and in
favour of the appellants; the subsequent applicability of the Hindu Widows
Re-marriage Act 1856 can have no retrospective effect and cannot take C
away the right of the widow who got the property in the year 1932.
Question No. (b), this question is also answered in favour of the appellant;
the suit is.barred by limitation. Question No. (c), oi:i the peculiar facts and
circumstances of this case the parties were governed by the custom of the
u~~ D
The case of the appellant is fully supported by the pleadings,
evidence - oral and documentary and also on law. We, therefore, have no
hesitation to set aside the judgment of the High Court which is impugned
in this Appeal and dismiss the suit filed by the respondent (plaintiff).
However, considering the nearness of the relationship between parties we E
say no costs.

N.J. Appeal allowed.