Devki Singh and Another vs Smt. Attro

H.S. Thakur, J.—By an order dated 25th April, 1978, this L.P.A. was referred to a Full Bench as a similar question as involved in M.S.A. No. 4 of 1978 was also involved in it. M.S.A. No. 4 of 1978 has already been decided by a Full Bench of this Court. It is contended by the learned Counsel for the Appellants that the question relevant to this L.P.A., which was also involved in M.S.A, No. 4 of 1978, was whether the proceedings u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, for the acquisition of proprietary and other rights by a tenant, would on the death of a land owner abate or not. That question has been already answered by the Full Bench in the aforesaid M.S.A. No. 4 of 1978, holding that the proceedings did not abate. Accordingly, the learned Counsel for the Appellants has not seriously pressed this point before us.

The only plea that has been now canvassed by the learned Counsel for the Appellants before us is that since Smt. Attro Respondent is not a legally married wife of Mathoo deceased, she is not his heir, and is not entitled to acquire proprietary rights in the land held by Mathoo deceased as a tenant.

The facts relevant to decide this question may be stated in brief. Mathoo deceased filed an application for the acquisition of proprietary rights in the land in dispute u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (the Act in short). The application was allowed by the Compensation Officer. The land owners preferred an appeal in the Court of the learned District Judge under the Act. During the pendency of the appeal, Mathoo died and the landowners filed an application in the Court of the learned District Judge, Mahasu, on 18th April, 1963, to bring his legal representatives on record. In this application, it was asserted that Mathoo had no issue and his only heir was his widow Smt. Attro. It was prayed that she may be made a Respondent in the case in place of Mathoo deceased. The application is on the file of the District Judge, Mahasu, in C.M.A. No. 8M/14 of 1963, instituted on 7th March, 1963 and decided on 11th June, 1963, titled Devki Singh v. Mathoo. Ultimately, the learned District Judge accepted the appeal and remanded the case for fresh decision to the Compensation Officer. Since Smt. Attro was keen to pursue the case, she also filed an application before the Compensation Officer u/s 67 of the Act for her being substituted as a Petitioner instead of Mathoo deceased, being his widow. The application was resisted by the landowners on the ground that she was not a legally married wife of Mathoo deceased and could not be brought on record as his legal representative. This objection was apparently inconsistent with the plea taken by the landowners in the application referred to above in which she was admitted as a legal heir of the deceased tenant. The learned Compensation Officer, however, on the evidence on record held that Smt. Attro was the widow of the deceased and was entitled to acquire the proprietary rights in the land. The landowners preferred an appeal to the District Judge who upheld the finding of the Compensation Officer and dismissed the appeal. The landowners came in appeal to the High Court but the same was also dismissed by the learned single Judge of Delhi High Court (Himachal Bench), on 17th September, 1969. Later on, the High Court of Himachal Pradesh on 14th June, l972 remanded one issue for determination to the learned District Judge, Simla Division. The issue may be reproduced as under:

Whether Smt. Attro was legally married to Shri Mathoo according to customary law?

The learned District Judge, Simla, after giving opportunity to the parties and examining the evidence on record, came to the conclusion that Smt. Attro was a legally married wife of Mathoo according to customary law.

It is contended by Shri K.D. Sud, learned Counsel for the landowners/Appellants, that in the statement made by Smt. Attro before the Compensation Officer, it was stated by her that Smt. Beggu was the only married wife of Mathoo and that she was not his married wife. On the basis of this statement, it is vehemently argued by the learned Counsel that she being not a legally married wife of Mathoo deceased, she is not entitled to claim any right in the land in dispute, as a tenant. It is also pointed out that the finding of all the Courts to the contrary, cannot be sustained.

We have considered the aforesaid contention of the learned Counsel and, in order to examine this contention, we have gone through the record. It may be pointed out that in the reply filed by Smt. Attro before the Compensation Officer, on 7th September, 1963, to the objections of the landowners in this behalf, it was contended that she was a legally wedded wife of Mathoo deceased and that he took her as his wife through "pariana" or "gadar" form of marriage which is valid form of marriage according to the custom of the parties and illaqa. It is further stated by her that she lived as his wife for more than 20 years with him. It was not disputed even by the landowners that Smt. Attro had intimacy with Mathoo deceased and she was living with him as his wife. It is admitted even by Devki Singh Appellant that Smt. Attro was impleaded as a party in appeal. The learned District Judge, Simla, while giving his finding on the issue remitted to him has come to a definite conclusion that Smt. Attro was a legally married wife of Mathoo according to customary law. The learned District Judge while giving this finding has noticed the arguments of the learned Counsel for Smt. Attro that people generally call "shadi" which is performed according to "Dharam Shastra" but in "gadar" or "pariana" form of customary marriage only relations of husband and wife participate but it is not called a "shadi".

The learned District Judge has apparently pointed out the difference between a marriage which is performed in with "Dharam Shastra" and the customary marriage that is performed under the name of "pariana" or "gadar". In the reply filed to the objections of the landowners, it has been specifically asserted by Smt. Attro that her marriage with Mathoo was performed according to the customary rites of the parties prevalent in the illaqa in the form of "pariana" or "gadar". In this background, the essence of the statement of Smt. Attro is that she was not married to Mathoo according to "Dharam Shastra" but according to the customary "pariana" or "gadar" form of marriage which is recognized in the illaqa. There is also evidence on record to this effect. The contention of the learned Counsel for the Appellants/landowners is otherwise also negatived as in the application filed by the landowners in the Court of the District Judge, Mahasu, they have admitted Smt. Attro as the legal heir of Mathoo deceased. That application is signed by Devki Singh Appellant as also by Shri Amar Chand, Advocate, the Counsel of the landowners. It may be also noticed that in Exhibit PM, which contains the statement of Mathoo deceased, it has been stated by him that Smt. Attro is his wife and is living with him as his wife for the last 20 years. This statement was recorded by the Senior Sub-Judge, Mahasu District, on 25th October, 1962, in another case. It may be pointed out that continuous cohabitation of a man or a woman as husband and wife and their treatment as such for a number of years raises the presumption of marriage. No doubt, this presumption is rebuttable but the Appellants/land owners have not been able to rebut this presumption. Otherwise also, this aspect of the matter has been minutely considered by the Compensation Officer, the learned District Judge, Mahasu, the learned District Judge, Simla, and also by the learned single Judge of the Delhi High Court. As such, a finding of fact arrived at by these Courts cannot be lightly ignored.

For the foregoing reasons, we are inclined to hold that Smt. Attro was the wife of Mathoo deceased and being his widow she is entitled to acquire the proprietary and other rights in the land under tenancy, according to law. The appeal is accordingly dismissed with costs.