Saturday, 27 June 2015

Whether deft can prove customary marriage relying on evidence adduced by plaintiff even though there is not pleading to that effect in written statement?



Now when the defendant while appearing as a witness in her deposition, which deposition has remained unshattered during the ordeal of her cross-examination, has deposed that in tandem with the ingredients of the customary marriage as deposed by PW-1 in his deposition comprised in his cross-examination her marriage with deceased Kanwar Singh was solemnized in consonance with or in conformity with the observances and rituals of the custom prevailing in the area where both were residing. Further more, when the witnesses of the defendant, namely, DW-5 Prem Dutt and DW-7 Mohan Singh, have also deposed in corroboration to the deposition of DW-1, Tara Devi of her marriage having been solemnized with deceased Kanwar Singh in conformity with the custom prevalent in the area, where both were residing. Consequently, it has to be aptly concluded that the marriage inter se the deceased Kanwar Singh and defendant/respondent was solemnized in consonance with the custom prevailing in the locality or the area where both the defendant/respondent and deceased Kanwar Singh were residing. Now the effect of the aforesaid discussion, more particularly of PW-1 in his cross-examination conveying acquiescence and admission besides, communicating the elements, traits and characteristics which inhered in the custom in consonance whereof the marriage of deceased Kanwar Singh was performed with the pre-deceased wife of the latter in consonance with and in conformity whereof also the marriage of deceased Kanwar Singh was performed with the defendant/respondent herein relieves the rigour of enjoining the defendant to plead the elements and traits of the custom in consonance or in conformity whereof her marriage with deceased Kanwar Singh was solemnized. It also, hence, when loudly communicated in the deposition of PW-1, hence, estops the counsel for the plaintiff to contend that such, traits and elements or observances or rituals are not inhering in the custom inconsonance whereof the marriage of the defendant/respondent herein was solemnized with the deceased. Obviously, then the aforesaid traits and characteristics are to be concluded to be constituting the tenets and canons underlying the custom, dehors the absence of adduction by the defendant of the wazib-ul-arz spelling out the existence of customary marriage in the area where both were residing. Preponderantly, when the said elements, characteristics and traits of the custom exist in the cross-examination of PW-1, then the necessity of pleading of its traits and characteristics also ought not to baulk, estop or stand in the way of reading evidence as adduced by the plaintiff as also evidence in tandem thereto adduced by the defendant, in proof of the ingredients of the custom, even if the said ingredients have remained un-pleaded in the written statement.
13. Reinforcingly, the aforesaid discussion underlines the factum of admission qua the characteristics and traits of the custom deposed by the plaintiff's witness constituting admission as well as estopping the counsel for the plaintiff from forbidding or interdicting this Court from reading the evidence led by both the plaintiff and the defendant in proof of the custom or observance of rituals for sanctifying the marriage performed in conformity thereof inter se the defendant/respondent with deceased Kanwar Singh besides, it operates as an exception to the rule that evidence when not pleaded is discardable or excludable.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.263 of 2003.
Decided on: 18th March, 2015.
Ms kavita 
VERSUS

Smt. Tara Devi


Coram
The Hon’ble Mr.Justice Sureshwar Thakur, Judge.



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
prohibitory
injunction
for
restraining
the
permanent
illegal and liable to be quashed and set aside, besides relief for
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.
The case of the plaintiff in the suit was that Kanwar Singh
4.
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 ex gratia 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

to the local custom.
1992, Kanwar Singh had married with defendant, Tara Devi according
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 plaintiff. The defendant also
raised the preliminary objections inter alia maintainability of the suit,
locus standi, estoppel and that the suit was not properly valued for the
purpose of court fee and jurisdiction.
6.
The plaintiff filed replication to the written statement of
the defendants, wherein, she denied the contents of the written
statement and re-affirmed and re-asserted the averments made in the
plaint.
7.
On the pleadings of the parties, the learned trial Court
struck the following issues inter-se the parties in contest:-

Whether the plaintiff is the only legal heir of deceased Kanwar Singh,
as alleged? OPP
2. Whether the entries in the Panchayat record showing the defendant as
  a widow of deceased Kanwar Singh are wrong, illegal and liable to be
 set aside? OPP
3. Whether the plaintiff is entitled for injunction? OPP
4. Whether the deceased Kanwar Singh married with the defendant
  during his life time. If so, what is its effect? OPD
5. Whether the suit is not maintainable in the present form, as alleged?
  OPD.
6. Whether the plaintiff has no locus standi to file the present suit, as
  alleged? OPD

1. Whether the plaintiff is estopped to file the present suit on account of
  acts of omission and commission? OPD
8. Whether the suit has not been valued properly for the purpose of
  court fee and jurisdiction? OPD
7. 
9.
On appraisal of the evidence, adduced before the learned
8.
Relief.
trial Court, the learned trial Court dismissed the suit of the
plaintiff/appellant. In appeal, preferred before the learned first
Appellate Court, against the judgment and decree of the learned trial
Court, by the plaintiff/appellant, the learned first Appellate Court
dismissed the appeal.
9.
Now the plaintiff/appellant has instituted the
instant Regular Second Appeal before this Court, assailing the findings,
recorded by the learned first Appellate Court, in its impugned
judgment and decree. When the appeal came up for admission on
18.3.2004, this Court, admitted the appeal instituted by the

plaintiff/appellant, against the judgment and decree, rendered by the
learned first Appellate Court, on the hereinafter extracted substantial
questions of law:-
Whether the findings as recorded by both the Courts below
are vitiated on account of misreading and mis-appreciation
of the pleadings of the parties as well as oral and
documentary evidence on record?
2. Whether the respondent having failed to plead specifically
  custom marriage, therefore, in the absence of pleading of
 essential ingredients of custom, the claim of the respondent
that she married with the deceased Sh.Kanwar Singh could
not have been decided in her favour?

1. 
Substantial questions of Law No. 1 and 2.
The learned counsel appearing for the plaintiff/appellant
10.
has vigorously strived to nullify the decrees rendered in favour of the
defendant/respondent by emphasizing upon the factum of the
ingredients of the “custom” having been not pleaded in the written
statement instituted by the defendant/respondent to the plaint.
The
ingredients of the custom, in compliance to and in consonance
whereof the deceased Kanwar Singh on demise of his previous wife,
Sushama, solemnized marriage with the defendant/respondent herein,
renders the evidence, if any, as has come to be adduced on record to
be unreadable, excludable and discardable. Obviously, he contends
that any reliance upon such evidence by the learned Courts below was
untenable. He while canvassing his aforesaid submission before this

Court, has relied upon the judgment of the Hon’ble Apex Court
reported in Dr. Surajmani Stella Kujur versus Durga Charan
Hansdah and another, 2001(3) SCC 13 and upon another judgment
of the Hon’ble Apex Court reported in Laxmibai (dead) through LR’s
and another versus Bhagwantbuva (dead) through LRs. and

others, 2013(4) SCC 97, relevant paragraphas No. 12, 13 and 14
whereof are extracted hereinafter, underline or enjoin the necessity of
explicit pleading of custom along with its ingredients. Paragraphs No.
12, 13 and 14 read:-
“12. Custom is an established practice at variance with the general
law. A custom varying general law may be a general, local, tribal or
family custom. A general custom includes a custom common to any
considerable class of persons. A custom which is applicable to a
locality, tribe, sect or a family is called a special custom. Custom is
a rule, which in a particular family, a particular class, community, or
in a particular district, has owing to prolonged use, obtained the
force of law. Custom has the effect of modifying general personal
law, but it does not override statutory law, unless the custom is
expressly saved by it. Such custom must be ancient, uniform,
certain, continuous and compulsory. No custom is valid if it is illegal,
immoral, unreasonable or opposed to public policy. He who relies
upon custom varying general law, must plead and prove it. Custom
must be established by clear and unambiguous evidence.
13. In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah AIR
2001 SC 938, this Court held that custom, being in derogation of a
general rule, is required to be construed strictly. A party relying
upon a custom, is obliged to establish it by way of clear and
unambiguous evidence. (Vide: Salekh Chand (Dead) thr. Lrs. v.
Satya Gupta & Ors. (2008) 13 SCC 119).
14.
A custom must be proved to be ancient, certain and
reasonable. The evidence adduced on behalf of the party
concerned must prove the alleged custom and the proof must not
be unsatisfactory and conflicting. A custom cannot be extended by
analogy or logical process and it also cannot be established by a
priori method. Nothing that the Courts can take judicial notice of
needs to be proved. When a custom has been judicially recognised
by the Court, it passes into the law of the land and proof of it
becomes unnecessary under Section 57(1) of the Evidence Act,
1872. Material customs must be proved properly and satisfactorily,
until the time that such custom has, by way of frequent proof in the
Court become so notorious, that the Courts take judicial notice of it.
(See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T.
Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201; Ujagar
Singh v. Mst. Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar
& Ors., AIR 1968 SC 1299).”
(pp.105-106)
The evidence apt and germane to the substantial
11.

questions of law formulated for adjudication of the instant Regular
Second Appeal, manifestly portray the factum of the defendant having

anchored her vindication of her marriage with deceased Kanwar Singh,
the father of the plaintiff on the strength of it having been performed
custom
prevailing
in
the
area
where
both,
the
the
in accordance with the well recognized traits and canons inhering in
defendant/respondent and deceased Kanwar Singh were residing.
True it is that the defendant/respondent, who had set up in her written
statement to the plaint the contention of her marriage with deceased
Kanwar Singh having been solemnized in conformity with the custom
prevailing in the area where both were residing, as such, was also
enjoined to, apart from pleading the fact of it having been customarily
performed or solemnized, to also precisely plead along with the fact of
her marriage being customarily solemnized, the ingredients, forms and
traits thereto. Obviously, in the absence of pleadings connoting the
shape, traits and characteristics of the custom, the evidence adduced
by the defendant/respondent herein in proof of marriage inter se her
and deceased Kanwar Singh having been performed customarily was

excludable as well as discardable. However, the above rule of evidence
being discardable or excludable, on its being beyond pleadings,
especially the emanating evidence manifesting the ingredients, traits
and characteristics of the custom prevailing in the area, where both
resided and to whom the said custom was applicable in consonance

whereto the marriage of the deceased Kanwar Singh was performed
with the defendant/respondent, was discardable or excludable, only in
the event of apposite evidence having come to be adduced by the
However, when the evidence apposite to the canons,
defendant.
tenets, practices or observances governing the custom had come to be
deposed by the plaintiff, obviously, then such evidence cannot be
construed to be unreadable. In other words, the evidence as existing
in the examination-in-chief and cross-examination of the defendant’s
witnesses when communicating or portraying the elements, traits or
characteristics of the custom existing or prevailing in the area where
the deceased Kanwar Singh and defendant/respondent were residing
and in conformity whereof the marriage was solemnized, was alone
excludable or discardable in the face of absence of pleadings apposite
to it. However, in the instant case as is evident on a reading of the
evidence existing in the cross-examination of PW-1, wherein he
deposed qua the form and shape of the customary marriage of the

predeceased wife of deceased Kanwar Singh, namely, Sushma having
been solemnized with deceased Kanwar Singh in conformity with the
deposed tenets and canons of the custom prevailing in the area where
the deceased Kanwar Singh and his pre-deceased wife Sushma Devi
were residing, obviously constitutes, when occurring in the deposition

of the plaintiff’s witness, as such, while constituting admission and
acquiescence qua the traits and characteristics of the custom in
conformity whereof the marriage inter se deceased Kanwar Singh and
defendant/respondent was performed, renders it to be construable to
be an exception to the well accepted norm of it being excludable or
unreadable when not pleaded in the apposite phraseology by the
defendant. More particularly, with PW-1 in his deposition in his cross-
examination having deposed that the ingredients of the custom
enjoined to be observed for sanctifying a customary marriage
postulates the visiting of the house of the proposed spouse by 1 or 2
persons from the bridegroom’s side accompanied by a “Pandit”
besides, when he has precisely deposed in his deposition existing in his
cross-examination of theirs visiting the house of the bride with “Suhag”
and theirs having brought her to her matrimonial home where she
performed the worship of “Chulha” and then proceeded to touch the
feet of her father-in-law and mother-in-law, on observance of which

rituals, the marriage of the pre-deceased wife of Kanwar Singh with the
latter attained consummation. Now with the deposition existing in the
cross-examination of PW-1 communicating the elements, traits and
characteristics besides, rituals and observances to be performed for
consummating or sanctifying the customary marriage has remained

unshred at the instance of the counsel for the plaintiff by his recalling
his witness for re-examination. Consequently, the deposition of PW-1,
in his cross-examination, wherein he has emphasized the elements and
traits of the custom governing or regulating the solemnization of
marriage in consonance thereto is to be accorded sanctity.
For
reiteration, such traits or observance of rituals are to be construed to
be the ones enjoined to be performed, besides estop the plaintiff’s
counsel to contend that the said traits and characteristics as deposed
by PW-1 in his
cross-examination were not the traits and
characteristics of the custom which were enjoined to be performed for
formalization or performance of a customary marriage. In addition,
the effect of the unshred admission in the cross-examination of PW-1
qua prevalence of customary marriage in the area where the deceased
Kanwar Singh and his pre-deceased wife, Sushma resided also fillips an
inference that the said form of customary marriage along with
observances of rituals and practices was an entrenched, well

recognized and an archaic custom, hence, necessitated reverence.
Moreover, then with the admissions aforesaid existing in the cross-
examination of PW-1 qua the observances, practices and rituals
necessarily regulating the custom inconformity whereof marriages are
solemnized in the area, dispenses with the necessity of legally obliging

the defendant to prove by adduction of wazib-ul-arz, the factum of
prevalence of customary marriage in the area where both the
deceased Kanwar Singh and the respondent/defendant were residing.
Now when the defendant while appearing as a witness in
12.
her deposition, which deposition has remained unshattered during the
ordeal of her cross-examination, has deposed that in tandem with the
ingredients of the customary marriage as deposed by PW-1 in his
deposition comprised in his cross-examination her marriage with
deceased Kanwar Singh was solemnized in consonance with or in
conformity with the observances and rituals of the custom prevailing in
the area where both were residing. Further more, when the witnesses
of the defendant, namely, DW-5 Prem Dutt and DW-7 Mohan Singh,
have also deposed in corroboration to the deposition of DW-1, Tara
Devi of her marriage having been solemnized with deceased Kanwar
Singh in conformity with the custom prevalent in the area, where both
were residing. Consequently, it has to be aptly concluded that the

inter
se
the
deceased
Kanwar
Singh
and
marriage
defendant/respondent was solemnized in consonance with the custom
in
the
locality
or
the
area
where
prevailing
both
the
defendant/respondent and deceased Kanwar Singh were residing.
Now the effect of the aforesaid discussion, more particularly of PW-1

in his cross-examination conveying acquiescence and admission
besides, communicating the elements, traits and characteristics which
inhered in the custom in consonance whereof the marriage of
deceased Kanwar Singh was performed with the pre-deceased wife of
the latter in consonance with and in conformity
whereof also the
marriage of deceased Kanwar Singh was performed with the
defendant/respondent herein relieves the
rigour
of enjoining the
defendant to plead the elements and traits of the custom in
consonance or in conformity
whereof her marriage with deceased
Kanwar Singh was solemnized.
It also, hence, when loudly
communicated in the deposition of PW-1, hence, estops the counsel
for the plaintiff to contend that such, traits and elements or
observances or rituals are not inhering in the custom inconsonance
whereof the marriage of the defendant/respondent herein was
solemnized with the deceased. Obviously, then the aforesaid traits and
characteristics are to be concluded to be constituting the tenets and

canons underlying the custom, dehors the absence of adduction by
the defendant of the wazib-ul-arz spelling out the existence of
marriage
in
the
area
where
both
were
customary
residing.
Preponderantly, when the said elements, characteristics and traits of
the custom exist in the cross-examination of PW-1, then the necessity

of pleading of its traits and characteristics also ought not to baulk,
estop or stand in the way of reading evidence as adduced by the
plaintiff as also evidence in tandem thereto adduced by the defendant,
in proof of the ingredients of the custom, even if the said ingredients
have remained un-pleaded in the written statement.
13.
Reinforcingly, the aforesaid discussion underlines the
factum of admission qua the characteristics and traits of the custom
deposed by the plaintiff’s witness constituting admission as well as
estopping the counsel for the plaintiff from forbidding or interdicting
this Court from reading the evidence led by both the plaintiff and the
defendant in proof of the custom or observance of rituals for
sanctifying the marriage performed in conformity thereof inter se the
defendant/respondent with deceased Kanwar Singh besides, it
operates as an exception to the rule that evidence when not pleaded is
discardable or excludable.

Furthermore, the aforesaid discussion conveying the
14.
factum of a valid customary marriage having been performed inter se
the deceased Kanwar Singh and the respondent/defendant, does not
render necessary any adjudication qua the factum of entries in the
relevant records having not been carried out in the legally enshrined

manner. The factum of the marriage inter se the deceased Kanwar
Singh and the respondent/defendant herein performed in consonance
with the well accepted custom or well recognized custom prevailing in
the area, obviously also leads to a sequeling conclusion that there is,
hence, no necessity for this Court to render any findings qua the
validity of the entries in the apposite register regarding the marriage
solemnized
inter
se
the
deceased
Kanwar
Singh
and
the
respondent/defendant. The said entries are only ministerial acts to be
performed at the end of the department concerned and even if there is
some discrepancy or error occurring therein, the same would not
detract from the potency of the evidence on record discussed
hereinabove portraying the factum of marriage inter se the deceased
Kanwar Singh and the respondent/defendant having been performed
or solemnized in consonance with the well recognized rituals and
observances inhering in the entrenched custom prevailing in the area
where both the deceased Kanwar Singh and the defendant/respondent

were residing. Consequently, the findings of the learned Courts below
are based upon a matured and balanced appreciation of evidence on
record and do not necessitate interference, rather merit vindication.
The result of the above discussion is that the appeal,
15.
preferred by the plaintiff/appellant is dismissed and the judgments,

rendered by the learned Courts below, are affirmed and the substantial
questions of law are answered in favour of the defendant/respondent
and against the appellant/plaintiff. However, there will be no order as
to costs. Records be sent back forthwith.
18th March, 2015.
(jai)
(Sureshwar Thakur)
Judge


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