1. This is defendant’s No.1 Second Appeal filed under Section 100 of CPC against the judgment and decree dated 02.07.2004, passed by 2nd Additional District Judge (FTC), Mungeli, District Bilaspur, in Civil Appeal No.3-A/2003 reversing the judgment and decree dated 31.10.2003 passed by Civil Judge, Class-I, Mungeli in Civil Suit No. 103-A/1997, whereby, the plaintiff's suit has been decreed.

2. For the sake of convenience, parties would be referred to as per their description shown in the plaint filed before the trial Court.

3. The Instant appeal has been admitted by this Court on 27.08.2004 on the following substantial questions of law:-

“1. Whether the 1st appellate Court was justified in reversing the judgment and decree of the trial Court holding that the marriage of the appellant herein with late Mohar Singh was not valid marriage in view of the provisions of Section 5(1) of the Hindu Marriage Act

2. Whether the 1st appellate Court was justified in reversing the judgment and decree of the trial Court on the ground that in view of Section 24 of the Hindu Succession Act, 1956 the appellant herein was not entitled for inheritance ”

4. The brief facts of the case, as reflected from the record are that, respondent No. 1/original plaintiff has instituted a Civil Suit before Civil Judge, Class-1, Mungeli for declaration of title and permanent injunction stating inter alia that deceased Sadhu Singh was residing at Patwari Halka No. 34 Village- Khapri. He had two sons namely- Mohar Singh and Puhup Singh. Puhup Singh and Mohar Singh, both have expired. Mohar Singh married with Hirdoi Bai and out of their wedlock one daughter namely- Son Bai was born, who is plaintiff in the instant suit. A partition took place between Mohar Singh and Puhup Singh. In the life-time of Hirodi Bai, defendant No. 1, namely, Looli Bai was residing with Mohar Singh as his concubine and after death of Mohar Singh, defendant No. 1, Looli Bai has performed chudi Marriage with Puhup Singh, who is real brother of Mohar Singh and after the death of Puhup Singh, she was residing as widow of Puhup Singh in his house and accordingly she was in possession of the property, which belonged to Puhup Singh and earned her livelihood. It has also been contended that in the year 1963, Mohar Singh died. It has been further submitted that Mohar Singh had given some part of the land bearing Khasra No. 62, area 1.96 acres of agricultural land situated at Village Kapri as well as land measuring 0.66 decimal have been given to original defendant Luli Bai in lieu of living with him as concubine. Defendant No. 1 – Luli Bai has made false and fabricated sale deed in favour of Mukut Singh with regard to aforesaid lands, which is pending before the Competent Court.

5. It has been further contended that Defendant No. 1 – Luli Bai has filed an application for partition before Tahshildar Pathariya on the ground that she is widow of Mohar Singh whereas actually she is widow of Puhup Singh and even without knowledge of plaintiff, name of defendant No. 1 has been recorded in the revenue records. The partition proceeding is pending before the Nayab Tahshildar, Pathariya. It has been contended that neither the defendant No. 1 has any right or title over the suit property nor she was ever in possession of the suit property. The plaintiff and her husband & children are the sole owner of the suit land and they are still in possession of the suit land. Defendant No. 1 being the legal heirs of the Puhup Singh, she obtained the property in partition and she in peaceful possession of the said property and there is no dispute between legal heirs of Puhup Singh and the plaintiff. The defendant No. 1 after filing the application before the Tahshildar Pathariya has started creating dispute which has necessitated the plaintiff to file the present suit for declaration of title and permanent injunction mainly praying that the plaintiff be declared as sole owner and occupier of the suit property and the defendant No. 1 be restrained from interfering either in person or any of the person in the peaceful possession of the property.

6. Defendant No. 1 filed a written statement denying the allegation made in the plaint and admitted the fact that Sadhu Singh was residing at village Khapri, Tahshil- Mungali and Mohar Singh & Pahup singh are his son and they subsequently expired. It has also been admitted that the partition has taken place between two brothers and after the death of Hardoi Bai, Mohar Singh performed Choodi Marriage prior to 65 years with defendant No. 1, Looli Bai and since then they were residing as husband and wife and their matrimonial life was going on happily. After the death of Mohar Singh, defendant No. 1 was living as his widow. It has been contended that the land bearing Khasra No. 62, area 1.96 acres belongs to defendant No. 1 and her name has also been recorded in the revenue record as land lord. It has also been contended that defendant No. 1 has sold the said property through registered sale deed and after execution of sale deed the name of purchasers namely Ganesh Prasad, S/o Vilesar and Suresh Kumar, Rakesh Kumar, S/o Dilesar (minor) through natural guardian Mukutram have been recorded in the revenue records and they are in peaceful possession of the suit property. It has been contended that she is the wife of Mohar Singh and she was living as his wife. It is emphatically denied that a forged and fabricated sale deed has been executed by defendant No. 1 in the name of Mukat Singh. It has been further contended that Looli Bai was the legally wedded wife of Mohar Singh and after the death of Mohar Singh, she is first entitled to get the property of Mohar Singh and accordingly her name be recorded in the revenue record. The suit has been filed vexatiously just to harsh defendant No. 1 and would pray for dismissal of the suit.

7. On the pleadings of the parties, the learned trial Court has framed as many as four issues, which are as under:-

(i) Whether defendant is concubine of deceased Mohar Singh

(ii) Whether the plaintiff is sole owner of land mentioned in clause II of the plaint situated at village Khapri

(iii) Whether the plaintiff is entitled to get permanent injunction against defendant No. 1 with regard to suit property for not interfering with her peaceful possession over the suit property

(iv) Relief and costs.

8. The plaintiff to substantiate the plaint averments examined as many as four witness namely Son Bai (PW-01), Vishram (PW02), Shakuntala (PW-03) and Malik Ram (PW-04) and exhibited the documents i.e. B-1 Khasra of the year 2000-2001 vide Ex.P1, Certificate of local villagers dated 16.2.2001 vide Ex.P-2, Certified copy of Order dated 5.12.2001 passed by Sub Divisional Officer, Mungeli vide Ex.P-3, Certificate issued by Sarpanch, Khapri dated 16.10.1997 vide Ex.P-4, Nirvachak Card No. -198, dated 1.1.1983 vide Ex.P-5 and Statement of defendant No. 1-Luli Bai recorded on 10.6.1993 relating to the 145 matter vide Ex.P-6.

9. The defendant No. 1 has examined herself as (DW1), Prabhudas (DW 2), Mukut Ram (DW3) and exhibited the documents record rights as (Ex.- D/1), Sanshodhan Panji (Ex. D/2), order dated 16.02.90 passed in Revenue Case Ex. D/3, voter list for election held in 1999 (Ex.D/4), notice in revenue case (Ex. D-5), Carbon copy of appeal (Ex.D/6) and Adhikar Abhilekh of village Khapri,Tahsil Mungeli, District Bilaspur (Ex.D-7).

10. Plaintiff – Son Bai (PW-1), in her examination in chief by way of affidavit, has reiterated the averments made in the plaint and the said witness was cross-examined by the defendant wherein she has admitted that choodi system is followed in the Satnami community, earlier she was married to Jay Nayaran, who is resident of village Farswani and out of their wedlock, one daughter namely- Subhotin Bai was born. After death of Jay Nayaran, she has now performed with one Satynarayan, who is resident of village Khapri. She denied that she has performed choodi Marriage with another person except Satyanarayan and Jaynarayan. She has admitted that Mohar Singh father of the plaintiff in his life-time with intention to get the child performed Choodi mariage with Looli Bai (defendant No.1) and at that time her mother was alive. She has also admitted that when her mother expired her sons were born then Looli Bai was living with her husband till her life time. She has stated that after the death of her father, Looli Bai was not residing with her and she is residing at Village- Jhilenga alongwith her son. She has also admitted that Mohar Singh expired prior to Puhup Singh when Mohar Singh performed Choodi Marriage with Luli Bai, his real brother Puhup Singh was alive. She has also admitted that the statement, with regard to giving 2 ½ acres of land to Luli Bai after death of Puhup Singh, has wrongly been mentioned in the affidavit. She is not aware that which part of the land was recorded in the name of Luli Bai. She has also admitted that she is not aware that the marriage of Luli Bai with Mohar Singh was done in the year 1935. She has admitted that when Mohar Singh has performed Chudi marriage with Luli Bai, Mohar Singh is 60- 70 year of age.

11. Another witness Vishram (PW-2), in his examination-in-chief, has supported the case of the plaintiff and stated that out of wedlock of Mohar Singh and Hirodi Bai, plaintiff - Son Bai was the only child and in the life-time of Hirodi Bai, defendant No. 1, namely, Looli Bai was residing with Mohar Singh as his concubine and in lieu thereof Mohar Singh has given her 2 ½ acres of land and on remaining part of land i.e. 15-16 acres, plaintiff is in peaceful possession for the last 40-50 years. At the time of last ritual of Mohar Singh, Looli Bai has performed choodi marriage with Pahup Singh and till her life time, she was living with Puhup Singh as his wife for about 20 to 25 years. In the crossexamination the witness has stated that Looli Bai has performed choodi marriage with Puhup Singh.

12. Shakuntala (PW-3) has also reiterated the stand taken by the plaintiff in his statement stating that Mohar Singh has performed choodi marriage with Looli Bai and she was residing as wife of Puhup Singh and after the death of Puhup Singh, she left the village Khapri and residing at village Jhelenga and the disputed property belongs to plaintiff Son Bai and she was in possession of the suit property for the last 40 to 45 years. This witness was cross-examined by the defendant and in her cross-examination she has stated that she is not aware that who is mother of Son Bai and Looli Bai is the aunt mother of Son Bai. She has also stated that she is not aware about the death of Mohar Singh and Hirdoi Bai and who had performed choodi marriage with Luli Bai. She voluntarily stated that Looli Bai was residing with Puhup Singh.

13. Malikram (PW-04), in examination-in-chief, by way of affidavit has supported the case of the plaintiff. This witness was crossexamined wherein he has stated that in the Satnami community, there is a tradition of choodi marriage. He has also stated that property of Puhup Singh has not been given to Luli Bai. Mohar Singh resided with Luli Bai and has given 2 ½ acres of land to her in front of him by way of stamp. He has also stated that he is not aware that in the property, the name of Son Bai and Looli Bai have been recorded in the revenue record or not. He has admitted that even if husband has expired, the name of widow and her children can be recorded in the revenue record. He has stated that presently in the revenue record, name of Son Bai has been recorded but the name of Luli Bai has not been recorded.

14. The defendant witness No. 1, Luli Bai has examined herself before the trial Court. She has deposed in her examination in chief by way of affidavit and exhibited the documents as Exs. D/1 to Ex. D/7. The said witness, in her cross-examination, has stated that the disputed land situated at village Khapri belongs to her father-in-law - Sadhu Singh and after the death of Sadhu Singh, the said property was partitioned between Mohar Singh and Puhup Singh. There is no dispute with regard to the property, which was inherited by Puhup Singh, but the property, which was inherited by Mohar Singh i.e. 20 acres of land and dispute arose in that property. She has admitted that the property situated at village Khapri, was ploughing by the plaintiff and she was not allowing her to enter into the suit property. She has also stated that proceeding under Section 145 of Cr.P.C. was initiated with regard to the suit property wherein the Police has recorded her statement. She has stated that after the death of her husband, she has performed the chudi marriage with Puhup sigh and she has stated that her step daughter Son Bai was doing agricultural work in the suit property. She has admitted that in the document Ex. D/6, name of her husband is recorded as Puhup Singh and she has not objected to it. She has admitted that in the election voter list, she has shown her husband name as Mohar Singh and also in the Gram Panchayat, she has mentioned her husband name as Puhup Singh, but she did not make any complaint before any of the authority with record to wrong recording of her husband's name. She has also admitted that Ramchandra is Sarpanch of the village Khapri and Smt. Shakuntala (PW-3) is Upsarpanch whereas Chedilal is Panch but she denied that in front of the said Panchayat, her choodi marriage was performed with Puhup Singh and 2.72 acres of land was given to her in lieu of their chudi marriage. She has denied that she has been given her share.

15. Witness – Mukutram (DW-2), who has supported the case of defendant No. 1, by way of affidavit, in his cross-examination, denied the fact that after the death of Mohar Singh, Luli Bai has performed Chudi marriage with Puhup Singh. He has also denied that Mohar Singh, after keeping her as concubine, has given 2.72 acres of land to Luli Bai and he has admitted that the said land has been recorded in the name of her grandson namely Ganesh and Ramesh.

16. The Witness Prabhudas (DW-3.) has stated in his crossexamination that Mohar Singh has performed choodi marriage with Looli Bai prior to 65 years and at that time he was child but he is aware of the marriage. He has also stated that after the death of Mohar Singh, property, which belongs to him, was partitioned between Son Bai and Luli Bai and they are in possession of ½ – ½ of share of the said property. He also stated that they belonged to Satnami Samaj, where choodi custom is prevailed and it is a valid marriage. He has stated that Mohar Singh has performed marriage with Luli Bai by choodi custom and Looli Bai being a wife of Mohar Singh is entitled to get share of property of her husband. He has stated that Puhup Singh and Looli Bai are the brother-in-law and sister-in-law and they never lived as husband and wife. The said witness was cross-examined, in which, he denied that after death of Mohar Singh, Looli Bai performed choodi marriage with Puhup Singh. In his cross-examination, he has also stated that Son Bai and Looli Bai got their half of share of the suit property and they are earning from their share only. He has also denied that from the partition Looli Bai has got only 2.72 acers land.

17. The learned trial Court, after appreciating the evidence, material on record has dismissed the suit by recording a finding that after death of Mohar Singh, Looli Bai has done choodi marriage with Puhup Singh, as such, on the day Mohar Singh expired she is entitled to get the property being successor widow of Mohar Singh even after the remarriage, it can not be denied as per Section 24 of the Hindu succession Act. Section 24 of the Hindu Succession Act never prohibits any widow to inherent her husband's property and it would be binding upon the next generation also and after appreciation of all material, evidence and law has held that the Looli Bai is the wife of Mohar Singh and after his death she, being a widow of Mohar Singh is entitled to inherent the property. So far as Son Bai is concerned, she can not be treated as sole owner of the suit property. It has also been recorded that since the defendant No. 1 is also co-sharers of the suit property, therefore, permanent injunction cannot be granted against the defendant No. 1.

18. Being aggrieved & dissatisfied with the judgment & decree of the trial Court, the plaintiff preferred first appeal before learned Second Additional District Judge (FTC), Mungli, District Bilaspur (C.G.), which was registered as Civil Appeal No.3-A/2003.

19. Learned first appellate Court, vide, its impugned judgment & decree dated 02.07.2004 passed in Civil Appeal No. 3-A/03, has decreed the suit filed by the plaintiff by setting aside the judgment & decree of the trial Court holding that except the property bearing Khasra No. 62, area 1.96 acres of land, the defendant No. 1 – Luli Bai has no right or title over the rest of the property held by plaintiff- Son Bai. Against which this second appeal has been preferred by defendant No. 1 under Section 100 of the CPC in which substantial questions of law have been framed on 27.08.2004, which has been set-out in paragraph 2 of this judgment.

20. During pendency of the appeal, appellant/defendant No. 1 has expired, therefore, on application under Order 22 Rule 4 CPC was brought on record, thus, this Court vide its order dated 05.04.2016 directed the Civil Judge, Class-1, Mungeli to determine the issue with regard to the legal representatives and thereafter send back the report along with it's finding to the Registry of this Court. In pursuance of the direction given to the trial Court, enquiry was conducted and submitted its report on 11.06.2021 and this Court vide order dated 14.07.2021, allowed the application filed under Order 22 Rule 4 of the CPC for substitution of Lrs of Appellant/Defendant. During pendency of the appeal the plaintiff also expired therefore, application dated 4.4.2006 was filed for substitution of Lrs. of plaintiff /Smt. Son Bai which was allowed by this Court and the legal representatives of plaintiff were brought on record.

21. Learned Sr. Advocate for defendant No. 1 would submit that the learned first appellate court erred in holding that the defendant Luli Bai was residing with Mohar Singh as concubine in absence of proof of fact by the defendant No. 1 she has done chudi marriage with Mohar Singh by recording cogent evidence, whereas from the records it is quite vivid that plaintiff and their witnesses have admitted about chudi marriage and marriage of Luli Bai with Mohar Singh. He would further submit that the learned first appellate court erred in not holding that chudi system of marriage is prevailing in the Satnami community despite clear cut admission by PW/2 Vishram and PW/3 Shakuntala. He would further submit that learned first appellate court has wrongly applied Section 24 of the Hindu Succession Act as it does not disentitle all the widows to inherent the property. He would further submit that relevant date for opening of the succession is the date when Mohar Singh expired as such the defendant Luli Bai is entitled to inherent the property of Mohar Singh being his widow and would pray that the questions of law framed by this Court be answered in his favour and the judgment and decree passed by the first appellate court be kindly set aside. Learned Sr. Advocate for the appellant would submit that the finding recorded by the First Appellate Court is perverse and contrary to the provisions of Section 24 of the Hindu Succession Act, 1956 as the learned trial Court has wrongly given the benefit of Section 5(1) of the Hindu Marriage Act to the plaintiff.

22. On the other hand, learned counsel for legal representatives the deceased respondent No. 1 would submit that the documents relied upon by the trial Court while dismissing the suit of the plaintiff is perverse, as in view of Section 35 of the Evidence Act, relevancy of entry in public record or an electronic record made in performance of duty should have been given due weightage and should have allowed the suit as the defendant No. 1 has shown name of her husband in one document as Mohar Singh and in another document as Puhup Singh which falsified the case of defendant No. 1. He would further submit that as per Section 2 of the Hindu Widows Remarriage Act, 1856 the widow will lose all her rights over the property after remarriage as it will amount to death of widow after remarriage. The learned counsel for the plaintiff in his written synopsis has reiterated the same contention and would pray for dismissal of the appeal.

23. Before adverting to the submission made by the learned counsel for the parties, it is expedient for this Court to examine following relevant provisions which are necessary for the adjudication of the case.

“Section 2 Hindu Widows’ Remarriage Act, 1856 2 Rights of widow in deceased husband's property to cease on her marriage. -All rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors, or by virtue of any will or testamentary disposition conferring upon her, without express permission to remarry, only a limited interest in such property, with no power of alienating the same, shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband, or other persons entitled to the property on her death, shall thereupon succeed to the same.”

Section 4 in The Hindu Succession Act, 1956

4. Over-riding effect of Act.—

(1) Save as otherwise expressly provided in this Act, —

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. 2 [***]

Section 14(1) in The Hindu Succession Act, 1956

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this subsection, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

24. I have heard learned counsel for the parties and perused the records of both the courts below including impugned judgment & decree of the first appellate Court.

25. From the facts and evidence brought on record it is quite clear  that the defendant Luli Bai has clearly proved that she has done Chudi marriage with Mohar Singh and Mohar Singh expired before Puhup Singh expired. It is also brought on record through the evidence that defendant No. 1 Luli Bai has solemnized Chudi marriage after death of Mohar Singh, though the defendant sought to take his defence that there was no husband wife relationship between Luli Bai and Puhup Singh but learned trial Court after appreciating the evidence, material on record while deciding the issue No. 1 Luli Bai is not the concubine of Mohar Singh and he has given specific finding that Luli Bai was not concubine. As such, she was duly valid wife of MOhar Singh. This finding was not only supported by the evidence of the defendant but plaintiff’s witnesses have also support this factum, therefore, the findings recorded by the trial Court on Issue No. 1 that Luli Bai is not concubine of deceased Mohar Singh is perfect, legal, justified. The learned first appellate court while reversing this finding has taken into consideration the material which was not placed before it. The learned first appellate court has recorded a finding in paragraph 15 of the judgment that the defendant No. 1 has not pleaded about concept of second wife during life time of first wife. As such, adverse inference should have been drawn. The learned first appellate court has ignored evidence which was placed before the trial court by the plaintiff herself and defendant also, therefore, the finding recorded by the first appellate court that defendant No. 1 is not legally wife is perverse and deserves to be set aside by restoring the finding of the learned trial Court on Issue No. 1 framed before the trial Court.

26. The learned first appellate court has also given a finding that custom of chudi marriage has not been proved by the plaintiff despite clear cut evidence of PW/2 and PW3 as well defendant’s witnesses. The plaintiff herself admitted that there is custom of chudi marriage in the Satnami Samaj, therefore, it is not required for the defendant to prove the custom of remarriage by chudi system. The Hon’ble Supreme Court in case of Rathnamma and Others vs. Sujathamma and Others reported in (2019) 19 SCC 714 has examined what should be the nature, what should be its origin and how custom should be proved. In paragraph 16 Hon’ble Supreme Court has held as under :-

“16. This Court in a judgment reported as Salekh Chand (Dead) by LRs v. Satya Gupta & Ors.4 while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under:

“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad 299] it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu Law, 4 (2008) 13 SCC 119 adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom.

22. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a wellestablished law that custom cannot be enlarged by parity of reasoning.

23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case.

24. Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case PW 1 did not speak anything on the position either of a local custom or of a custom or usage by the community; PW 2, Murari Lal claimed to be witness of the ceremony of adoption, he was brother-in-law of Jagannath, son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the court. He did not speak a word either with regard to the local custom or the custom of the community. PW 3 as observed by the lower appellate court was only 43 years old at the time of his deposition whereas the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by PW 2 Murari Lal. He himself did not speak of such a custom. The evidence of the plaintiff was thus insufficient to prove the usage or custom prevalent either in the township of Hapur and around it or in the community of Vaish.”

27. In the present case, the plaintiff and her witnesses have admitted about the custom of chudi marriage. As such, the learned first appellate court should have held that Luli Bai has solemnized chudi marriage of Mohar Singh, as such, she is entitled to inherit the property of Mohar Singh after death of Mohar Singh as succession is opened. The learned first appellate court while negating the claim of defendant has taken into consideration the provisions of Section 24 of the Hindu Succession Act as well as Section 2 of Hindu Widows’ Remarriage Act and has held that since Luli Bai has remarriaged with Puhup Singh therefore, the property inherited by Luli Bai will be inherited by legal representative of deceased Mohar Singh. This finding is contrary to Section 4 of the Hindu Succession Act. Section 2 of 1856 Act, Section 4 and 24 as stood prior to amendment of Hindu Succession Amendment Act, 2005 has come up for consideration before the Hon’ble Supreme Court in case of Cherotte Sugathan (dead) through Lrs. And Others vs. Cherotee Bharathi and Others ( 2008) 2 SCC 610. The Hon’ble Supreme Court in para 14 to 17 has held as under :-

14.The question posed before us is no longer res integra. In Chando Mehtain & Ors. v. Khublal Mahto & Ors. [AIR 1983 Patna 33], the Patna High Court opined :

6. The Hindu Widows Remarriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956 but Section 4 of the latter Act has an overriding effect and in effect abrogates the operation of the Hindu Widows Remarriage Act, 1856. According to Section 4 of the Hindu Succession Act all existing laws whether in the shape of enactments or otherwise shall cease to apply to Hindus in so far as they are inconsistent with any of the provisions contained in this Act.

15. In Kasturi Devi v. Deputy Director of Consolidation [AIR 1976 SC 2595], this Court categorically held that a mother cannot be divested of her interest in the deceased sons property either on the ground of unchastity or remarriage.

16.Kerala High Court, in Thankam v. Rajan [AIR 1999 Kerala 62], held that remarriage of the wife cannot be a ground for her loosing right to succeed to her deceased husbands property.

17. Yet again this Court, in Velamuri Venkata Sivaprasad (Dead) by LRs. v. Kothuri Venkateswarlu (Dead) by LRs & Ors. [(2000) 2 SCC 139], held : 52. Incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage; while it is true that the section speaks of a pre-deceased son or son of a pre-deceased son but this in our view is a reflection of the Shastric law on to the statute. The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. As a matter of fact she takes her share absolutely and not the widows estate only in terms of Section 14. Remarriage of a widow stands legalised by reason of the incorporation of the Act of 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husbands estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed. As such the Act of 1856 had its fullest application in the contextual facts in 1956 when Section 14(1) of the Hindu Succession Act was relied upon by Defendant 1.” 

28. The Section 4 of the Hindu Succession Act clearly provides that it will have overriding effect. Section 24 of the Hindu Succession Act prior to its amendment reads as under:-

“24. Certain widows remarrying may not inherit as widows. Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a per-deceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried.” 

29. Coming to the facts of the case, it is quite clear that Luli Bai does not fall within any of the categories mentioned in Section 24 of the Hindu Succession Act before its amendment, as such as per Section 14(1) of Hindu Succession Act any property possessed by a female Hindu whether acquired before or after the commencement of the act will be held by her as full owner thereof. Thus, Luli Bai being widow whose marriage has been solemnized as chudi system which is custom in the community she is entitled to inherit the property of Mohar Singh after his death. The Hon’ble High Court of Madhya Pradesh in case of Shakun Bai vs Siya Bai {1999 2 MPLJ 307} has also recognized chudi system in Gond community. In the present case also, from appreciation of evidence on record of the present case it becomes clear that relinquishment by the earlier husband and putting on bangles provided by the new husband are two core part of the customary requirement and admission of the chudi system even the plaintiff herself performed chudi marriage which clearly establishes that it is prevailing in the community, thus, it is custom of marriage. The learned first appellate court has not taken into consideration this vital admission by the plaintiff herself.

30. From the above stated facts and on record it is held that the learned first appellate court was not justified in reversing the judgment and decree of the trial Court holding that marriage of appellant with late Mohar Singh was not valid marriage in view of the provisions of Section 5(1) of the Hindu Marriage Act. Thus, the substantial question of law No. 1 framed by this Court is decided in favour of the appellant.

31. Considering the material, evidence on record and also considering the fact that appellant Luli Bai does not fall within category of widow mentioned in Section 24 of the Act, the trial Court has wrongly applied the provision of Section 24 of the Act, thus, substantial question of law No. 2 framed by this Court is also decided in favour of the appellant.

32. Consequently, the judgment and decree passed by the first appellate court is set aside and judgment and decree of the trial Court dated 31.10.2003 is restored. The appeal is allowed.

33. A decree be drawn up accordingly.