Kaur Vs. Garja Singh  INSC 456 (27 October 1993)
S. (J) MOHAN, S. (J) PANDIAN, S.R. (J) CITATION: 1994 AIR 135 1994 SCC (1) 407
1993 SCALE (4)302
Judgment of the Court was delivered by S. 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.
plaintiffs laid a suit No. 217/137 in the court of Sub- Judge, 1st Class, Dhuri
on June 18, 1970 for possession of the suit property
on the plea that they were the grandsons 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 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 defendant 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 sanctioned in favour of the first defendant Surjit Kaur.
Therefore, it had become necessary for the plaintiffs to file a suit for
possession of the land and the house in question. An additional plea was made
for permanent injunction restraining the first defendant from alienating the land
first defendant contested the suit on the ground that she was the legally
wedded wife of Gulaba Singh who had contracted Karewa form of + From the
Judgment and Order dated October II, 1990 of the Punjab and Haryana High Court
in R.S.A. No. 1560 of 1978 408 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 executed no will in favour of the plaintiffs. The
plaintiffs could not lay their claim on the relationship with Gulaba Singh
which is denied.
second defendant Nachhattar Singh contested the suit contending that Gulaba
Singh had executed a will in his favour on September 1, 1965 as a result of which he became the
owner of the said property. It was also 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.
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 suit was
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 of 1974.
By judgment and decree dated May 27, 1978,
it was dismissed.
Thereupon, Regular Second Appeal No. 1560 of 1978 was preferred to the High
Court. The learned Single Judge of the High Court took the view that in the
written statement, it had not been pleaded that marriage of appellant Surjit Kaur
with Gulaba Singh was solemnized in accordance with the customary rights and
ceremonies. Nor did she as DW 4 state that the marriage was celebrated with
customary ceremonies in due form. Having regard to Section 17 of the Hindu
Marriage Act, the essential ceremonies 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 deceased Gulaba
Singh. The respondents having proved that they are the nearest heirs of the
deceased would be entitled to succeed to the estate of Gulaba Singh. In the
result, the second appeal was allowed setting aside the concurrent findings.
Aggrieved by this, the present appeal has been filed.
argument on behalf of the appellant is that the High Court erred 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. D 4 that Karewa Nama also establishes the factum
of marriage. DW 1 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 to be accepted by the trial court and the court of
reliance on Charan Singh Harnam Singh v. Gurdial Singh Hamam Singh' it is
argued that no ceremonies are essential to a widow's remarriage. Therefore, the
judgment under appeal has to be set aside.
1961 Punj 301 409
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 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 v. State of Maharashtra2. This is not a case of widow's
remarriage to the husband's brother. Gulaba Singh was a stranger. Therefore, no
exception could be taken to the judgment of the High Court.
have given our careful consideration to the above arguments. In paragraphs 13
and 16 of the written statement, what is stated reads as under :
No. 13 that my marriage took place with Gulaba Singh and just because of that
the agreement was executed on October 28, 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.
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." Therefore, it
is clear that no custom was pleaded at all. The High Court is right in its
Even evidence of DW 4 does not bring out as to what were the ceremonies
performed. Mere distribution of gur will not constitute the necessary ceremony.
Reliance placed on Charan Singh case' is not correct because that will apply
only if the widow were to marry the brother of the husband. But, here Gulaba
Singh was a stranger. As rightly contended by the respondent, mere living as
husband and wife does not, at any rate, confer the status of wife and husband.
In B.S. Lokhande case2, it was laid down that the bare fact of the man and
woman living as husband and wife does not, 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.
facie, the expression 'whoever ...
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 of the person marrying arises.
If the marriage is not a valid marriage, it is no marriage in the eye of law.
The bare fact of a man and a woman living as husband and wife does not, at any
rate, normally give them the status of husband 1 (1965) 2 SCR 837 : AIR 1965 SC
2 Cri LJ 544 410 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 of the High
Court. The civil appeal stands dismissed. There shall be no order as to costs.