Same Kaur vs Jit Ram
1996 Latest Caselaw 72 Del

JUDGMENT

Anil Dev Singh, J.

(1) This is a petition under Article 226 of the Constitution of India seeking quashing of the order of the Financial Commissioner dated February 23, 1978, whereby Jil Ram and Sukh Ram, respondents 1 and 2, have been held entitled to bhumidari rights in equal shares, i.e., 1/2 share each in respect of land in question. The facts giving rise to this petition are as follows:

(2) The land in question measuring 77 bighas 6 biswas comprised in Khasra Nos. 66, 133/1, 133/2 and 518 situate in Village Bharthal, Delhi, was in the ownership of three brothers, namely, Ram Mehar, Jit Ram and Sukh Ram who were sons of Shadi Ram. Ram Mehar died in the year 1944. Upon his death 1/3 share of Rum Mehar in the land was mutated in the name of the petitioner Same Kaur. She continued in possession of her share and on coming into force of the Delhi Land Reforms Act, 1954, the petitioner was declared bhumidar of 1/3 share of that land. This declaration was made on April 26, 1958. On December 8, 1964, respondent No.l Jit Ram instituted a civil suit for declaration in which it was inter alia pleaded that Same Kaur had remarried Sukh Ram and, therefore, she had lost her right in the land and could not be declared a bhumidar. Sukh Ram in that suit was arrayed as respondent No.2. It is significant to note that the suit was filed by .lit Ram several years after Same Kaur was declared bhumidar of 1/3 share of the land. On May 5, 1965 the suit was dismissed by the learned Sub Judge holding, inter alia, that the petitioner did not remarry Sukh Ram and was rightly declared as bhumidar of 1/3 share in the suit land. The first respondent feeling aggrieved by the order of the Sub Judge preferred an appeal which was dismissed by the Additional Senior Sub Judge on February 23, 1966. Thereafter, Jit Ram filed a second appeal against the judgment of the Additional Senior Sub Judge before the High Court. This Court while relying on the decision of the Supreme Court in Hatti v. Sunder Singh, , held that the suit was not maintainable in the civil court and the lis was within the competence of the Revenue Assistant. Thereupon, Jit Ram filed an application under section 11 of the Delhi Land Reforms Act on February 28, 1973 for declaration of bhumidari rights in respect of 1/2 share of land in question claiming that Smt. Same Kaur, the petitioner, had remarried Sukh Ram thereby losing her 1/3 share in the land which she inherited on the demise of her previous husband Ram Mehar. In the application Sukh Ram was also included as a respondent along with Same Kaur. It is noteworthy that in the application Sukh Ram supported the stand taken by Jit Ram and claimed to have married his sister-in-law Same Kaur after demise of his brother Ram Mehar. In the application filed by Jit Ram the following issues were framed by the Revenue Assistant :-

1. Whether the present application is barred by res judicata? If so, to what effect?

2.Whether the court has jurisdiction over the suit property ?

3.Whether the present application is barred by principles of estoppel ? If so, to what extent ?

4.Whether the present application is barred by limitation ? If so, to what effect?

5.Whether Smt. Same Kaur remarried with Sukh Ram? If so, what is effect on the bhoomidari rights ?

6.Whether plaintiff and defendant No.2 were in cultivatory possession as owners of the land in suit before and after 1953-54 ?

7.Any relief.

(3) In so far as Issue Nos. 1 to 4 are concerned, the same were decided in favour of the first respondent. However, Issue No.5 was decided infavour of the petitioner and it was held that Smt. Same Kaur never remarried Sukh Ram. The effect of this finding was that the petitioner was held entitled to 1/3 share in the suit land as bhumidar being heir of Ram Mehar deceased. In so far as issue No. 6 is concerned, the Revenue Assistant was of the opinion that the issue was not of any significance as the petitioner was a female and could not cultivate the land herself. It was also observed that possession of a co-sharer was normally for and on behalf of all co-sharers, and the first respondent had failed to adduce evidence of hostile title.

(4) In view of the aforesaid findings, the Revenue Assistant by his order dated August 26, 1975 dismissed the application. Not being satisfied with the order of the Revenue Assistant, the first respondent carried the matter in further appeal before the Additional Collector, Delhi. The Additional Collector on September 28, 1976, dismissed the appeal and confirmed the judgment of the Revenue Assistant holding that there was no remarriage of the petitioner with Sukh Ram.

(5) Thereafter, the first respondent filed a second appeal before the Financial Commissioner under section 185 of the Delhi Land Reforms Act, 1954. On February 23, 1978, the Financial Commissioner reversed the orders of the Revenue Assistant and the Additional Collector and held that the petitioner had remarried Sukh Ram and, therefore, was not entitled to be declared as bhumidar. Consequently, the Financial Commissioner granted declaration in favour of Jit Ram and Sukh Ram to the effect that they were entitled to bhumidari rights to the extent of 1/2 share each in respect of the suit land. The finding that the petitioner remarried Sukh Ram after the demise of Ram Mehar was recorded by the Financial Commissioner on the ground that in the ration card and electoral roll the petitioner has been recorded as the wife of Sukh Ram. The petitioner thereupon filed the present writ petition challenging the order of the Financial Commissioner.

(6) Learned counsel appearing for the petitioner submitted that the Financial Commissioner was not right in reversing the findings of fact arrived at by the Revenue Assistant and the Additional Collector. He submitted that both the Revenue Assistant as well as the Additional Collector had come to a finding of fact that the petitioner had not remarried Sukh Ram and was, therefore, entitled to be declared as bhumidar of 1/3 share in the land in question as having inherited the same from Ram Mehar. It was further urged that the Financial Commissioner has overturned the findings only on the ground that in the voters list and the ration card the petitioner has been mentioned as the wife of Sukh Ram. He submits that neither the electoral roll nor the ration card was prepared at the instance of the petitioner. He further contends that the petitioner in the written statement before the Revenue Assistant had categorically denied the factum of her marriage to Sukh Ram.

(7) On the other hand, learned counsel for the first respondent Jit Ram and the second respondent Sukh Ram submitted that the Revenue Assistant and the Additional Collector had based their findings mainly on the decision of the civil courts, even though the High Court in second appeal clearly held that the civil court did not have any jurisdiction in the matter. Learned counsel further submitted that the voters list and the ration card were rightly taken into consideration by the Financial Commissioner, and at no stage the petitioner filed any proceedings before the concerned authorities questioning the entries contained therein. In so far as the factum of remarriage is concerned, learned counsel canvassed that it had taken place and all the ceremonies were performed.

(8) I have considered the submissions of learned counsel for the parties and have also gone through the record. I am of the opinion that the Financial Commissioner was not right in arriving at the conclusion that Same Kaur had remarried Sukh Ram. In coming to the conclusion the Financial Commissioner merely relied on the electoral roll and the ration card in which the petitioner is mentioned as the wife of Sukh Ram. Before the Financial Commissioner the first respondent does not seem to have relied on any other piece of evidence to prove that Kareva marriage between Sukh Ram and the petitioner was performed, ceremonies and rites were duly observed by the parties and the parties had a custom which entitled them to enter into a Kareva marriage. Undoubtedly, the onus to prove remarriage was on the first respondent. It is common ground that in so far as the electoral roll and the ration card are concerned, there is no evidence to show that the same were prepared at the instance of the petitioner. It is also not proved that the petitioner had made any statement before the authorities responsible for the preparation of the voters list and the ration card that she was the wife of Sukh Ram. Moverover, I find, that it is not disputed by the learned counsel for the parties, that the petitioner was not cross-examined with regard to the electoral roll or the ration card by the First respondent, nor any questions were put to her in this regard. It is also not disputed that at the time of alleged remarriage no relatives, either of the petitioner or of Sukh Ram, were present who had witnessed the proceedings. The Financial Commissioner has assumed the factum of marriage only on the basis of the electoral roll and the ration ..card. When the petitioner is to lose her rights and interests in the suit properly inherited on the death of her husband Ram Mehar on the alleged ground of remarriage, that fact has to be proved and supported by unquestionable, clear and direct evidence of marriage and not by an indirect inference thereof from inadmissible material. As it is, the legislation which takes away woman's right to properly inherited from her husband on remarriage is extremely harsh and may not be able to stand the scrutiny of Article 14 of the Constitution. Though the vires of the statute is not in question, the observation is made only to draw the attention of the legislature to set right the anomaly.

(9) In view of the foregoing reasons, the writ petition succeeds and the rule is made absolute. The order of the Financial Commissioner dated February 23, 1978, is quashed and the orders of the Revenue Assistant and the Additional Collector are restored.