SURJIT KAURversusGARJA SINGH AND ORS.

...."·                              SURJIT KAUR
                                         v.
                                GARJA SINGH AND ORS.

                                    OCTOBER 27, 1993

B                  [S. RATNAVAL PANDIAN ANDS. MOHAN, JJ.)

              Hindu Marriage Act, 1955: Section 7.

               Suit-Claim for possession of property by heirs of a deceased-Counter
C claim-Counter claimant stating that she was legally wedded wife of deceased
         who had contracted Karewa form of marriage-Essential ceremonies of mar-
         riage neither set out nor pleaded-Held mere living as husband and wife does
         not confer the status of wife and husband-Marriage held invalid-Counter
         claimant held not entitled to property.

D              The respondents (plaintiffs) filed a suit for possession of the proper-
         ty of one 'G', since deceased, and for a permanent injunction restraining
         the appellant (first defendant), in whose favour the mutation of in-
         heritance of deceased was sanctioned, from alienating the land in dispute.
         Their claim was that they are the nearest heirs of the deceased 'G' who had
E        executed a will in their favour. The appellant (first defendant) contested
         the su1t on the ground that she was the legally wedded wife of 'G' who had
         contracted Karewa form of marriage with her and that after the marriage
         both of them lived as husband and wife.

               The Trial Court dismissed the suit holding that the appellant was
F the legally wedded wile of 'G' and that the will set up by the respondents
         was not valid. The judgment of the Trial Court was confirmed by the first
         Appellate Court.

         On second appeal the High Court found that (i) there was no
  averment in the pleadings ~at the marriage of the appellant with 'G' was
G solemnised in accordance with customary rites and ceremonies; and (ii)
  the essential ceremonies for a valid marriage were not performed. Act:ord-
  ingly, it held that· the appellant was not the wife/widow of 'G'. Further,
  accepting the respondents' claim that they are the nearest heirs of the
  deceased the High Court held that they would be entitled to succeed to the
H estate of 'G'.
                                             428
                     S. KAUR v. G. SINGHfMOHAN, J.]                    429

       In appeal to this Court, it was contended on behalf of the appellant A
that (i) the High Court erred in holding that there was no averment in the
written statement as to the marriage; (ii) the ceremonies of marriage were
performed in the village and gur was distributed which would prove the
marriage; and (iii) in view of the judgment in Charan Singh, Hamam Singh
&Anr. v. Gurdial Singh, Hamam Singh &Anr., A.I.R. (1961) Punjab 301, no B
ceremonies were essential to a widow's re-marriage.

        Dismissing the appeal, this Court

      HELD : The High Court is right in its conclusion, that the appellant
was not the wife/widow of 'G'. No custom was pleaded at all. Even the
evidence of the Appellant does not bring out as to what were the ceremonies C
performed. Mere distribution of gur will not constitute the necessary
ceremony. This ·is not a case of widow's remarriage to the husband's
brother. 'G' was a stranger. Mere living as husband and wife does not, at
any rate, confer the status of wife and husband. Accordingly, there i~ no
warrant for interference with the judgment of the High Court.               D
                                          [432-D, E, 431-H, 432-F, 433-B]
      B.S. Lokhande &Anr. v. State of Maharashtra &Anr., [1965) 2 S.C.R.
837, relied on.

      Charan Singh, Hamam Singh & Anr. v. Gurdial Singh, Hamam Singh          E
& Anr., A.I.R. (1961) Punj. 301, held inapplicable.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 221 of
1991.

     From the Judgment and order dated 11.10.90 of the Punjab and
Haryana High Court in R.S.A. No. 1560/1978.                                   F
        J.S. Wasu and T.S. Arora for the Appellant.

     P. Chidambaram, S. Ujjagar Singh, Surya Kant ~d Satish Vig for the
Respondents.
                                                                              G
        The Judgment of the Court was delivered by

        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   H
    430                    SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A 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 grand sons of the father's
    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
B   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 defen-
    dant 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
C   sanctioned in favour of the first defendant Surjit Kaur. Therefore, it had
    become necessary for the pl~tiffs to file a suit for possession of the land
    and the house in question. An additional plea W$iS ·made for permanent
    injunction restraining the first defendant from alienating the land in dis-
    pute.
D         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
E executed no will in favour of the plaintiffs. The plaintiffs could not lay their
   claim on the relationship with Gulaba Singh which is denied.

          The second defendant Nachhattar Singh contested the suit contend-
    ing 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
F   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.

           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
G   suit was dismissed.

         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. 10/1974. By judgment and decree dated 27.5.1978, it was dismissed.

H         Thereupon, Regular Second Appeal No. 1560/1978 was preferred to
                       S. KAUR v. G. SINGH (MOHAN, J.]
r
    the High Court. The learned Single Judge of the High Court took the view A
    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 DW4 state that the
    marriage was celebrated with customary ceremoneies in due from. Having
    regard to Section 17 of the Hindu Marriage Act, the essential ceremonies B
    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 de<;eased Gulaba Singh. The respondents
    having proved that they are the nearest heirs of the deceased would be
    entitled to succeed to the estate of the Gulaba Singh. In the result, the C
    second appeal was allowed setting aside the concurrent findings.

         Aggrieved by this, the present appeal has been filed.

          The argument on behalf of the appellant is that the High Court erred     D
    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. 04 that Karewa Nama
    also establishes the factum of marriage. DWl speaks that the ceremonies
    of marriage were performed in the village and gur was distributed. That
    would be enough to prove marriage. It was this evidence which has come         E
    to be accepted by the trial court and the court of firs.t appeal. Placing
    reliance on Charan Singh, Ham.am Singh & Anr. v. Gurdial Singh, Ham.am
    Singh & Anr.,, AIR (1961) Punjab 301, it is argued that no ceremonies are
    essential to a widow's remarriage. Therefore, the judgment under appeal
    has to be set aside.
                                                                                   F
          In opposition to this, the learned counsel for the respondents would
    urge that in the written statement, there was no plea as to the custom
    prevalent in the area which governs the parties. Further, the ingredients of
    the alleged custom and the essential ceremonies of the marriage were
    neither set out nor pleaded. Hence, the High Court was right in its            G
    conclusion. The custom must be proved to be ancient, certain and
    reasonable if the court of law were to accept the same. Merely because
    they lived as husband and wife, the status of wife is not conferred as laid
    down in B.S. Lokhande & Anr. v. State of Maharashtra & Anr., (1965) 2 SCR
    837. This is not a case of widow's remarriage to the husband's brother.        H
    432                    SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A Gulaba Singh was a stranger. Therefore, no exception could be taken to
    the judgment of the High Court.

           We have given our careful consideratiOn to the above arguments. In
    . paragraphs 13 and 16 of the written statement, what is stated is reads as
      under:
B
                "Para No. 13 that my marriage took place with Gulaba Singh
             and just because of that the agreement was executed on 28.10.1965
             and that the marriage of the defendant with Gulaba Singh is right
             and justified. I the defendant have no business and link with Nagar
             Singh.
c
                 Para No. 16 is not admitted. I the defendant as were my own
             will married Gulaba Singh the· deceased and remained as his wife
             in his house."

D        Therefore, it is clear that no custom was pleaded at all. The High
    Court is right in its conclusion.

          Even evidence of DW4 does not bring out as to what were the
    ceremonies performed. Mere distribution of gur will not constitute the
    necessary ceremony.
E          Reliance placed on Charan Singh's case (supra) is not correct be-
    cause that will apply only if the widow were to marry the brother of the
    husband. But, here Gulaba Singh is a stranger. As rightly contended by the
    respondent, mere living as husband and wife does not, at any rate, confer
     the status ofwife and husband. In B.S. Lokhande's case (supra) it was laid
F   down that the bare fact that the man and woman living as husband and
    wife does no(, at any rate, normally give them the status of husband and
     wife even though they may hold themselves out before the society as
    husband and wife and the society treats them as such. The following extract
    is useful for this purpose.
G                 "Prima facie, the expression 'whoever ..... marries' must mean
            . 'whoever ...... marries validly' or 'whoever .......marries and whose
              marriage is a valid one'. If the marriage is not a valid one, according
              to the law applicable to the parties, no question of its being void
              by reason of its taking place during the life of the husband or wife
H             of the person marrying arises. If the marriage is not a valid
                   S. KAUR v. G. SINGH [MOHAN, J.)                    433

         marriage, it is no marriage in the eye of law. The bare fact of a   A
         man and a woman living as hasband and wife does not, at any rate,
         normally give them the status of husband and wife even though
         they may hold themselves out before society as husband and wife
         and the society treats them as husband and wife."

      Accordingly, we find no warrant for interference with the judgment     B
of the High Court. The Civil Appeal stands dismissed. There shall be no
order as to costs.

T.N.A.                                                 Appeal dismissed.