ORDER
R.S. Singh, J.
1. This writ petition is directed against the order of the Deputy Director of Consolidation dated 30-6-78, by which the revision filed by the petitioner was dismissed and the revision filed by respondent No. 3 was allowed.
2. The facts of the case in brief are that in the basic year khatauni, on khata No. 116, the name of Indrapati; on khata No. 24, the name of Ram Adhar and Indrapati, on khata No. 46, the name of Baba, Gangadeen, Gingen, Girja Shanker, and Indrapati and on khata No. 234, the name of Ram Adhar and Ram Dular were recorded as tenure-holders. An objection was filed under Section 9-A (2) of U. P. Consolidation of Holdings Act by Girja Singh, respondent No. 3 claiming to be sole tenure-holder and denying the title of Smt. Indrapati on the ground that she had remarried and her name has been wrongly recorded in the revenue papers, which should be expunged. Another objection was filed by Smt. Indrapati, the petitioner, claiming to be co-tenure-holder of all the aforesaid khatas with half share therein. The relationship between the parties will be clear from the admitted pedigree given, below:
BAIJNATH
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____________________________________________
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Ram Dular Ram Gopal
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Avadh behari Ram Adhar
= Indrapati |
Girjashankar
3. There is no dispute about the fact that Avadh Behari, husband of Smt, Indrapati, petitioner died before the year 1937, and Ram Dular, the father-in-law of the petitioner died in 1949 when Hindu Women's Rights to Property Act (Act No. XVIII of 1937) was in force, The Consolidation Officer accepted the claim of the petitioner and declared her to be co-tenure-holder in all the disputed khatas with 1/2 share. The Consolidation Officer also recorded a finding that remarriage of Indrapati, as set-up by the respondents, has not been proved. The respondents preferred an appeal against the order of the Consolidation Officer, which was partly allowed. The petitioner's claims in respect of khata No. 116 for 1/2 share was maintained but the claim of the petitioner for rest of the holdings was rejected. However, the Settlement Officer (Consolidation) maintained the finding of Consolidation Officer that no remarriage had taken place.
Two revisions were filed before the Deputy Director of Consolidation against the order of the Settlement Officer (Consolidation) one revision was filed by the petitioner and the other revision was filed by respondent No. 3. The Deputy Director of Consolidation dismissed the revision, of the petitioner and allowed therevision of Girja Shanker, respondent No. 3. While accepting the revision of the respondent, the Deputy Director of Consolidation also recorded a finding that the remarriage of petitioner has been proved. The effect of the order of the Deputy Director of Consolidation was that the claim of the petitioner stood rejected in respect of all the aforesaid khatas-in-dispute. The petitioner has challenged the order of the Deputy Director of Consolidation before this court.
4. There were two main questions for consideration in this case. Firstly, whether remarriage of Smt. Indrapati has been proved and secondly, what is the share of Indrapati in the disputed holdings.
5. On the question of remarriage, the Consolidation Officer and the Settlement Officer (Consolidation) have recorded a finding that no remarriage has been proved in this case whereas according to the Deputy Director of Consolidation, remarriage of Indrapati is fully proved. The parties are Brahmins. Acording to the case of the petitioner, there is no legal evidence to prove remarriage, as rquired by provisions of law. Whereas, according to the case of the respondents, the finding of the Deputy Director of Consolidation on the question of remarriage is correct, which is based on two factors, viz., entry in the voters' list and the birth of a child after the death of previous husband,
6. Marriage among Hindus is not a contract but is a sacrament and a Hindu wife has to be with the husband, for a marriage is a holy union, for the performance of religious duties. Under the Hindu Law, a widow's right to succession is based on the ground that she is half the body (Ardhangini) of her deceased husband and that she is capable of conferring spiritual benefit on him. When she remarriages, she ceases to be half the body of her late husband or be unable to confer spiritual benefit on him and she becomes wife and half of the body of her new husband, with the result, she loses all her right in the property, which she had inherited from her previous husband, Section 2 of Hindu Widow's Remarriage Act XV of 1856 is as follows:--
'Rights of widow in deceased husband's property to cease on her remarriage --All rights and interests which any widow may have in her deceased husband's property by way of maintenance,or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died, and the next heirs of her decased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.'
Section 6 of this Act contemplates the performance of almost the same ceremonies, which are required in the case of the marriage of Hindu female. In order to prove the remarriage performance of all the ceremonies will have to be done in her remarriage. There can be no valid marriage in any form without a substantial performance of the requisite religious ceremonies. The performance of ceremonies, therefore, is necessary for the completion of the marriage. The effect of the valid remarriage is the losing of right in the property inherited from the previous husband. Therefore, where remarriage is set up as defence it has to be strictly proved.
7. The Deputy Director of Consolidation has recorded a finding of remarriage mainly relying on the facts that Indrapati has been shown to be in the Kutumb register as wife of Agardi and that she has given birth to a child after the death of her previous husband. Reliance has been placed in Bamraj v. Gaya (1969 All WR (HC) 579) which has held that continuance of cohabitation of a man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. It may be pointed out that it was a case of 'Dharkar' community, where naturally a strict observation of elaborated ceremonies could not be reasonably expected and the marriages are performed according to the customs obtaining in the community.
8. In Paras Nath v. Deputy Director of Consolidation (1972 Rev Dec 27) it has been held that --
'If it was found that the man and the woman had been living as husband and wife and they had been treated as such for long, the presumption in favour of marriage could certainly be raised. If a legal presumption in favour of a party could be drawn, the mere fact that the evidence produced by that party was not found to be quite convincing cannot deprive the party of that legal presumption in its favour.'
In this case, reliance has been placed on the Supreme Court decision reported in Gokal Chand v. Parvin Kumari (AIR 1952 SC 231), wherein it has been held that :--
'Continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption, which, may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them.'
In this case, on consideration of the evidence on record, it was held that the evidence and the circumstances were not wanting and their cumulative effect warranted the conclusion that the plaintiff had failed to prove the factum of his marriage. In this case, it has been further considered that no statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government Rules, the statement to be found therein in support of custom are admissible to prove facts recit. ed therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the question of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities.
9. In Mohan Lal v. Mst. Bhudevi (AIR 1954 All 588) it has been held that a Hindu widow loses a widow's estate in her first husband's estate only if the marriage can be said to have been validly performed by reason of the enabling provision of the Hindu Widow's Remarriage Act. If independently of the Act, there is a custom that the widow can remarry, Section 2 of the Act does not apply. It has been further held that the provisions of Hindu Law relating to chastity of a Hindu widow after her husband's death do not necessarily apply to remarriage. By reason of unchastity a Hindu widow does not cease to continue to be a Hindu widow, while by re-marriage she ceases to be such. If there is a custom recognising re-marriage it cannot be said that a widow-re-marrying in accordance with such custom was leading a life of unchastity.
10. In Deivanai Achi v. R. M. Al. Ct. Chidambaram Chettiar (AIR 1954 Mad 657), it has been held that :--
'There are really two essential elements necessary to constitute a valid marriage under Hindu Law according to Shastras; one a secular element viz., gift of the bride or kanyadan in the four approved forms, the transference of dominion for consideration in the 'Asura' form and mutual consent or agreement between the maiden and the bridegroom in the 'Gandharva' form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the Grihyasutras of which the essential elements are 'pani-grahana' and 'saptapadi'. In the case of 'Rakshasa' and 'Paisacha' forms, also, there should be a marriage rite in the form prescribed by the shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The 'Gandharva' form of marriage is no exception to the rule.
Ceremonies are essential in the case of all the eight forms of marriage and this rule applies even to 'Sudras'. This is the strict Hindu Law regarding the mode by which a valid marriage could be effected.'
According to the Section 6 of the Hindu Widow's Remarriage Act (XV of 1856), in case of remarriage, all the formalities for marriage are required to be proved.
11. In Smt. Dashrath Dei v. Ram Newaj (1977 Rev Dec 1 (All)) the Deputy Director of Consolidation recorded a finding of remarriage on the basis of voters' list and on the evidence of living with her husband's elder brother as husband and wife and are received as husband and wife by their friends and relatives. But it was held in this case that 'the finding recorded by the Deputy Director of Consolidation reversing the finding of the two courts below -- namely the Consolidation Officer and the Settlement Officer (Consolidation), is not based on evidence and at any rate is contrary to law. This finding is vitiated being contrary to law.'
12. In the present case, there is no finding much less evidence that the formalities of marriage was gone into. TheDeputy Director of Consolidation has not recorded any finding that the formalities of remarriage according to Hindu Law Saptapadi etc., was performed. His finding is merely based on the fact that according to the Kutumb register, Indrapati was living as wife of Agardi in the family and also on the fact that a child was also born after the death of her previous husband. But, these facts alone are not positive proof of remarriage, That may be a result of living immoral life. The widow does not lose her right in the property inherited by her previous husband merely by leading an immoral life. On careful consideration of the facts and the circumstances on this point, the finding recorded by the Deputy Director of Consolidation cannot be sustained in law.
13. The next question for consideration is whether the petitioner is entitled to have share in all the aforesaid khatas or not. All the holdings in dispute were fixed rate tenancy before vesting of U. P. 2. A. & L. R. Act, which were governed by personal law (Hindu Law). Holding No. 116 exclusively belonged to Avadh Behari, husband of the petitioner, as it was acquired by him through a patta in the year 1927, whereas the remaining khatas were joint family property of which Ram Dular and Girja Shanker were the co-tenants as Avadh Behari had pre-deceased his father. Khata No. 116 was acquired by Avadh Behari and Girja Shanker. In this khata, after the death of Avadh Behari, Smt. Indra-pati the petitioner and Girja Shanker, both have become co-tenure-holders to the extent of 1/2 share each. Therefore, in khata No. 116, the petitioner is bhumidhar to the extent of 1/2 share.
14. As regards the other three khatas in dispute, the contention of the learned counsel for the petitioner is that the petitioner is entitled to inherit those khatas under Section 3 of the Hindu Women's Rights to Property Act of 1937 (hereinafter referred to as Act). Section 3 of the Act is as under :--
'3 (1). When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property; his widow or if there is more than one widow all his widows together shall subject to the provisions of Sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son :
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such pre-deceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son :
Provided further that the same provisions shall apply mutatis mutandis to the widow of a predeceased son.
(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow, under the provisions of this section shall be the limited interest known as a Hindu Women's estate, provided however, that she shall have the sama right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends on a single heir or to any property to which the Indian Succession Act, 1925 applies.
The learned counsel for the respondents contended that the petitioner is no heir under Section 3 of the Act as her husband pre-deceased his father who died as a member of the joint Hindu family, Under Section 3 of the Act, she is entitled only to the separate property of Ram Dular being predeceased son's widow and not to the property other than separate property. He placed reliance upon a ruling reported in Mt. Manbhari v. Bishun Prasad (AIR 1958 All 769). The learned counsel for the petitioner has drawn my attention to Sub-section (2) of Section 3 of the Act. He contends that Indrapati is entitled to inherit separate as well as joint family property.
In the case where the deceased husband died leaving him surviving only a widow or widows, and no son or sons, then the position was that the widow or widows inherited to the estate of her or their deceased husband and got therein the limited estate knows as the Hindu women's estate. That was the definite right which was enjoyed by a widow by ordinary Hindu Law and that right hasnot been touched at all by the provisions of Act No. XVIII of 1937. There was no question there of having a share in that estate which could be predicated as the same share as a son had, or in respect of which it could also be predicated that she would have the same right of claiming partition as a male owner. If there was no son or sons and nobody else was interested in the property left by the deceased husband, with whom could the widow have a share or from whom could the widow claim partition as a male owner? The whole of the property had vested in her as the heir and legal representative of her deceased husband. She had a life estate in it and the whole property, except for the alienations which she made for legal necessity, would go to the reversioners of her deceased husband on her death. That right of the widow, therefore, was not touched by the Act either in general or abrogated.
Only in the cases where the deceased, husband died leaving separate property and leaving him surviving a widow or widows and a son or sons, or the deceased husband dying as a member of a coparcenary leaving him surviving a widow or widows, that the widow or widows had no right to the property left by the deceased husband or the property in which the deceased husband was interested as a coparcener, except that of being maintained thereout and having a right of residence therein. This was the limited right which was sought to be extended by the provisions of this Act and it was, therefore, that the Act was enacted to amend the Hindu Law to give better rights to women in respect of property. The type of estate which is created in Hindu widow under the provisions of the Act is an anomalous one. It is neither inheritance nor survivorship, but nonetheless it is an estate which devolves upon her by virtue of her being the widow of her deceased husband. Though she has no independent right to the same, she can be aptly described as the heir and legal representative of her deceased husband.
15. The words 'same share as son' under Section 3 (1) mean the same share as if she were a son and 'separate property' means the property which the intestate held without the participation of other coparceners. In case the property is obtained by father as share of the partition, it is the separate property in which his widow's and his son's widow will be entitled to his share only, but in case ofcoparcener's property, in view of Subsection (2) of Section 3 of the Act, the son's widow will be no heir of the property left by the father-in-law.
16. Therefore, it is clear that Sub-section (1) of Section 3 of the Act is applicable to the widow of the deceased as well as to the widow of the pre-deceased son, but is confined only to separate property. Sub-section (2) of Section 3 of the Act is applicable only to the widow and not to son's widow irrespective of separate or joint family property,
17. In view of the facts and circumstances discussed above, the petitioner is not entitled to claim any title in respect of khatas Nos. 24, 46 and 234. However, the petitioner is entitled for half share in khata No. 116. The Settlement Officer (Consolidation) has taken a correct view of law but the order of the Deputy Director of Consolidation is erroneous and cannot be sustained in law.
18. In the result, I allow this petition only in respect of khata No. 116, in which the petitioner is entitled for half share and for rest of the khata, the petition is dismissed. The order of the Deputy Director of Consolidation dated 30-6-1978 is quashed only in respect of khata No. 116. However, the parties shall bear their own costs.