Surmukh Singh and Others v. Smt. Debo and Others, 2026

Bishan Singh owned agricultural land measuring 23 bighas and 19 biswas situated in Village Sankhera, Tehsil Jagadhri.

Bishan Singh died issueless on 24 August 1979, leaving behind a Will in favour of Smt. Debo.

Debo claimed that she was Bishan Singh's wife through a Karewa marriage and had cared for and rendered services to him during his lifetime.

Before his death, a consent decree had also transferred half of the disputed land in favour of Debo.

The plaintiffs, being the legal heirs of Bishan Singh's brother Beli Ram, contended that the property was ancestral and that Bishan Singh could not validly alienate or bequeath it in favour of a stranger when collaterals were alive.

The plaintiffs challenged both the Will and the consent decree as being contrary to the customary law applicable to Jats.

During the pendency of the litigation, Debo sold a portion of the property to two purchasers, who claimed protection as bona fide purchasers under Section 41 of the Transfer of Property Act, 1882.

The plaintiffs further argued that Debo, being a Rajput, could not have validly contracted a Karewa marriage with Bishan Singh, who belonged to the Jat community.

They also alleged that the Will was surrounded by suspicious circumstances because Debo was present at the time of its execution and one of the attesting witnesses belonged to a neighbouring village.

The purchasers and respondents argued that the validity of the Will had already been upheld in earlier proceedings, that Debo's status as Bishan Singh's wife had attained finality through an earlier decree, and that her long cohabitation and services rendered to Bishan Singh justified the testamentary disposition.

The Trial Court and the First Appellate Court upheld the validity of the Will and dismissed the plaintiffs' claims, leading to the present Regular Second Appeal before the High Court.

The High Court held that the general custom applicable to Jats recognizes an important exception permitting an issueless proprietor to make a gift or testamentary disposition in favour of a person who rendered services to him during his lifetime.

The Court observed that, for this limited purpose, such a beneficiary is treated analogously to a near agnate, and therefore the customary restriction on alienation of ancestral property does not operate as an absolute prohibition.

The Court held that a party relying upon a restrictive custom bears the burden of proving it through clear, cogent, and unambiguous evidence, and mere assertions regarding customary incapacity to alienate ancestral property are insufficient.

The Court found that the plaintiffs failed to establish any rigid custom excluding the recognized exception permitting alienation in favour of a person who had rendered services to an issueless proprietor.

The Court held that the Will had been validly proved through the testimony of the sole attesting witness together with the notarial endorsement, satisfying the statutory requirements of proof.

The Court ruled that non-examination of the scribe did not affect the validity of the Will.

The Court rejected the allegation that the beneficiary's presence during execution or the residence of an attesting witness in a neighbouring village constituted suspicious circumstances.

The Court accepted the earlier decree recognizing Debo as Bishan Singh's wife and held that prolonged cohabitation raised a strong presumption of marriage.

The Court further held that the appellants' earlier conduct in acknowledging Debo's title prevented them from taking inconsistent positions in subsequent litigation.

Finding no perversity or legal error in the concurrent findings of the subordinate courts, the High Court dismissed the Regular Second Appeal.

The judgment reinforces the principle that customary law is not absolute and must be interpreted together with its recognized exceptions.

The Court reaffirmed that the burden of proving a restrictive custom lies upon the party asserting it and that courts will not presume customs merely because they are pleaded.

The decision harmonizes customary law with equitable considerations by recognizing the legitimacy of rewarding a person who devoted care and services to an issueless proprietor.

The Court strictly applied the statutory requirements governing proof of Wills under the Indian Succession Act and the Indian Evidence Act, demonstrating that compliance with statutory formalities prevails over speculative allegations of suspicious circumstances.

The judgment emphasizes that mere presence of a beneficiary at the execution of a Will or the residence of an attesting witness outside the village does not automatically invalidate a testamentary document.

By relying on the presumption arising from long cohabitation, the Court protected settled family relationships and discouraged collateral attacks on marital status after considerable delay.

The decision also strengthens the doctrine of approbation and reprobation, preventing litigants from adopting inconsistent positions in successive proceedings.

Overall, the judgment clarifies the interaction between customary law, testamentary succession, evidentiary principles, and equitable doctrines, thereby providing important guidance for future disputes involving ancestral property governed by custom.