KRISHNA PRATAP SINGH v. D D C FAIZABAD — 1995 DIGILAW 1229 (ALL)

S. P. SRIVASTAYA, J. Feeling aggrieved by an order passed by the Deputy Director of Consolidation in a revision filed by the respondent Nos. 3 and 4 under Section 48 of the U. P. Consolidation of Holdings Act whereunder allowing the revision and upsetting the order of the Consolidation Officer upheld by the Settlement Officer, Consolidation in appeal, the present petitioner was found to be disentitled to inherit any right, title or interest of late Udai Bhan Singh in the holdings indispute on the ground that he could not be held to be the legitimate son Of the deceased tenure-holder and directing for the correction of the basic year entry in the record of right standing in the name of Udai Bhan Singh by recording therein the names of his grandsons Udai Pratap Singh and Vijai Pratap Singh only. 2. The petitioner has now approached this court seeking redress praying for the quashing of the revisional order. 3. There is no dispute and this fact is also borne out from the record that Udai Pratap Singh and Vijai Pratap Singh, the contesting respondent Nos. 3 and 4 are the sons of the pre-deceased son of Udai Bhan Singh. It is also not disputed that Krishna Pratap, the petitioner is the son of Udai Bhan Singh. However, the claim of the contesting respondent Nos. 3 and 4 has been that Ajai Pratap Singh their father was born out of he lawful wed-lock between Udai Bhan Singh and Smt. Raj Laxmi Devi, whereas Krishna Pratap Singh, the petitioner was an illegitimate son of Udai Bhan Singh born of his union with Smt. Yashoda Devi, a concubine who had never been married to Udai Bhan Singh. Therefore, it is claimed that the petitioner could not be held entitled to have succeeded any right, title or interest of Udai Bhan Singh in the holdings in dispute after his death on 16. 11. 1962. 4. Therefore, it is claimed that the petitioner could not be held entitled to have succeeded any right, title or interest of Udai Bhan Singh in the holdings in dispute after his death on 16. 11. 1962. 4. The claim of the petitioner has however, been that on the death of Smt. Raj Laxmi Devi his first wife, in the year 1934, Udai Bhan Singh had married Smt. Yashoda Devi in 1936 and out of this wed-lock the petitioner as well as his seven sisters were born and in accordance with the provisions contained in Section 171 of the U. P. Zamindari Abolition and Land Reforms Act, he was also entitled to succeed half share in the holdings in dispute being one of the two legitimate sons of deceased Udai Bhan Singh. It was further claimed that in any view of the matter considering that since Udai Bhan Singh and Smt. Yashoda Devi constantly, continuously and openly lived as husband and wife and cohabited together for about 25 years and had eight children and further having been regarded and recognised by friends and relations as husband and wife, a valid marriage between them had to be presumed and in such a circumstance succession as claimed could not be denied. 5. I have heard Sri R. N. Singh, the learned Counsel for the petitioner and Sri G. N. Verma, learned Counsel for the contesting respondents and have carefully perused the record. 6. The learned Counsel for the petitioner has urged that on the findings recorded by the Consolidation Officer and affirmed in appeal by the Settlement Officer, Consolidation, there could be no justification for not raising the presumption of a valid marriage between Udai Shan Singh and Smt. Yashoda Devi specially in the absence of any such compelling circumstance which could rebutt the aforesaid presumption. The contention is that the Deputy Director of Consolidation under the impugned order has manifestly erred in holding the presumption of a valid marriage between Udai Bhan Singh and Smt. Yashoda Devi to have been rebutted on irrelevant considerations. The contention is that the Deputy Director of Consolidation under the impugned order has manifestly erred in holding the presumption of a valid marriage between Udai Bhan Singh and Smt. Yashoda Devi to have been rebutted on irrelevant considerations. It has also been urged that while exercising the revisory jurisdiction contemplated under Section 48 of the U. P. Consolidation of Holdings Act, the Deputy Director of Consolidation could not re-assess or reappraise the evidence and interfere in the finding on a question off act arrived at on an appreciation of documentary and oral evidence led by the parties in the case in the absence of any compelling circumstances. It is urged that in the circumstances of the case, the Deputy Director of Consolidation has exceeded the jurisdiction contemplated under Section 48 of the U. P. Consolidation of Holdings Act and the impugned order deserves to be quashed having been passed in excess of jurisdiction. 7. The learned Counsel for the contesting respondents has, however, tried to support the impugned order on the basis of the reasonings contained therein. It has also been urged that considering the phraseology used in Section 48 of the U. P. Consolidation of Holdings Act the jurisdiction vested thereunder in the Deputy Director of Consolidation is of a vide amplitude and there was no dearth of power or jurisdiction in exercise whereof the revising authority could come to its own independent conclusions on the evidence and materials on record. The contention is that the order of the Deputy Director of Consolidation is well within the jurisdiction envisaged under Section 48 of the U. P. Consolidation of Holdings Act and no interference therein is called for by this Court in the present proceedings. 8. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and have examined the judgment passed by the Consolidation Officer, the Appellate Authority and the Revision Authority. 9. If a marriage in fact is established there would be a presumption of marriage in law. However, in a case where marriage in fact is not established for the want of admissible evidence or the like but it is found that there was a long cohabitation, a presumption in law about a valid marriage between the parties becomes available. However, if it is known that the connection started in mere concubinage such a presumption cannot arise. However, in a case where marriage in fact is not established for the want of admissible evidence or the like but it is found that there was a long cohabitation, a presumption in law about a valid marriage between the parties becomes available. However, if it is known that the connection started in mere concubinage such a presumption cannot arise. Before applying the presumption of a marriage in law on the basis of long cohabitation with habit and repute, it is necessary to make sure that the requisite conditions for a valid marriage did exist otherwise, the habit and repute alone could not be taken as sufficient and effective habit and repute of that particular status that is lawful marriage. In other words in a case where no marriage between the parties is permissible under the law no amount of evidence as to the habit and repute could establish it. It is therefore obvious that when the parties, not falling within the prohibited degrees and otherwise not ineligible to marry, consistently, continuously and openly lived as husband and wife, co-habited together and had a number of issues and were regarded and recognised by friends and relations or neighbours or public in general-large or small-having special means of knowledge of the relationship as husband and wife, a presumption of marriage in law becomes available where under the parties may be presumed to have been married in accordance with law with all the consequential rights and obligations. 10. In this connection, it may be usefully noticed as indicated by the Apex Court in its decision in the case of Badri Prasdd v. Deputy Director of Consolidation and others, 1979 RD 89, that law leans in favour of legitimacy and frowns upon bastardy. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as a husband and wife and although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relation of legal origin. 11. In the present case, the Consolidation Officer had disbelived the oral evidence led by the respondent Nos. 3 and 4 in support of their plea that the relationship between Udai Bhan Singh and Smt. Yashoda Devi originated in concubinage and that she retained the status of a concubine till the death of Udai Bhan Singn in 1962. 11. In the present case, the Consolidation Officer had disbelived the oral evidence led by the respondent Nos. 3 and 4 in support of their plea that the relationship between Udai Bhan Singh and Smt. Yashoda Devi originated in concubinage and that she retained the status of a concubine till the death of Udai Bhan Singn in 1962. The Consolidation Officer has further while accepting the oral evidence Ted by the petitioner in support of his claim had placed reliance upon the various admissions of Udai Bhan Singh himself made by him prior to his death in various judicial proceedings as well as other proceedings which showed that he accepte a the status of Yashoda Devi to be that of his legally wedded wife. In fact the Consolidation Officer noticed that Udai Bhan Singh himself had derived benefit in the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 on the ground that Smt. Yashoda Devi and his issues born out his wed-lock with her were entitled to an additional area of holding and thereby got the surplus area reduced in the proceedings initiated against him under the aforesaid Act. The Consolidation Officer also placed reliance on a registered document executed by Udai Bhan Singh in favour of Smt. Yashoda Devi showing her therein as his wife. Various other documentary evidences containing the admissions of Udai Bhan Singh about the status of Yashoda Devi as his wife were also noticed by the Consolidation Officer while holding that Smt. Yashoda Devi was legally wedded wife of Udai Bhan Singh and was not a concubine as alleged. The Consolidation Officer has found that Smt. Yashoda Devi was legally wedded wife of deceased Udai Bhan Singh and since it was not disputed that Krishna Pratap Singh was the son of Udai Bhan Singh he was found to be entitled to succeed the property of the deceased as claimed. 12. The Settlement Officer, Consolidation affirmed the finding of the Consolidation Officer to the effect that Udai Bhan Singh had married Smt. Yashoda Devi and the marriage in law had been fully established. 12. The Settlement Officer, Consolidation affirmed the finding of the Consolidation Officer to the effect that Udai Bhan Singh had married Smt. Yashoda Devi and the marriage in law had been fully established. The Settlement Officer, Consolidation also upheld the findings of the Consolidation Officer holding that the claim of Vijai Pratap Singh and Udai Pratap Singh to the effect that Smt. Yashoda Devi was a Khatri and not a Thakur and that she was a servant was baseless and not established. The appellate authority accepted the entries in the Kutumb Register showing Smt. Yashoda Devi to be the wife of Udai Bhan Singh and the admissions of Udai Bhan Singh himself in the judicial proceedings which negative the claim of Vijai Pratap Singh and Udai Pratap Singh, the grandsons of Udai Bhan Singh. The appeal filea by, the respondent Nos. 3 and 4 was accordingly dismissed. 13. the Deputy Director of Consolidation, while exercising the revisory jurisdiction contemplated under Section 48 of the U. P. Consolidation of Holdings Act appears to have re-appraised the wole evidence. It has been observed in the impugned order that it stood established from the record that on the death of his first wife, Udai Bhan Singh had been approached for his second marriage and he had received several proposals in this regard. However, the Deputy Director of Consolidation observing that since Yashoda Devi, the mother of the objector was from a family of a status much below that of Udai Bhan Singh and proposals for marriage in a family of at least equal status could be found out, inferred that the marriage between Udai Bhan Singh and Smt. Yashoda Devi could not be possible. It was further observed that the circumstance that the father of Smt. Yashoda Devi was also provided with certain amount for expenses indicated that the statutes of Smt. Yashoda Devi was that of only a concubine. 14. It appears to have been overlooked that the fact that the bridegrooms party bears some expenditure may be due to varied circumstance such as prestige, vanity, the poverty or the disinclination of the brides father in the matter relating to incurring of expenditure on the marriage but the money so spent cannot be held to be the price or consideration for the bride. It appears that the revising authority did not notice that there was neither any pleading nor proof indicating that any money was received by the father of Smt. Yashoda Devi as consideration for the bride. The mere fact that father of Smt. Yashoda Devi had been provided with certain amount could not lead to an inference that the status of Smt. Yashoda Devi was only that of a concubine. 15. The Deputy Director of Consolidation also relied upon on alleged admi ssion of Smt. Yashoda Devi said to be contained in her deposition in view where of it was claimed that she had taken only five steps at the time of marriage which indicated that having not completed the process of seven steps, the marriage could not be held to be a valid marriage as recognised under Hindu Law. 16. The Deputy Director of Consolidation, however, endorsed the findings of the Consolidation Officer as well as the appellate authority to the effect that it stood established that Udai Bhan Singh and Smt. Yashoda Devi had resided together as husband and wife. The Deputy Director of Consolidation was of the view that a marriage in fact could be proved only by the evidence of the persons, who had personally seen the marriage being performed. He did not place reliance on the statement of Smt. Yashoda Devi on the ground that she was an interested witness being the mother of the objector. The evidence of Bhutukun, the mother witness examined by the petitioner was rejected on the ground that he was a eardner and had admitted that he had not attended the marriage party (Barat ). He further rejected the claim of performance of marriage on the ground that according to Smt. Yashoda Devi, the marriage ceremony consisted of only five steps and not seven and further that Smt. Yashoda Devi could not tell the names of some of the relatives of Udai Bhan Singh. It was also observed that taking into consideration the social status of Udai Bhan Singh and the lower family status of Smt. Yashoda Devi, there could be no possibility of her having been married to Udai Bhan Singh. 17. It was also observed that taking into consideration the social status of Udai Bhan Singh and the lower family status of Smt. Yashoda Devi, there could be no possibility of her having been married to Udai Bhan Singh. 17. So far as the documentary evidence and the admission of Udai Bhan Singh relied upon by the Consolidation Officer and the Settlement Officer, Consolidation were concerned, the revising authority refused to place reliance on the Kutumb Register on the ground that the entries therein were made in the year 1962 and not before. So far as the order passed in the proceeding under the U. P. Imposition of Ceiling on Land Holdings Act was concerned, it was discarded on the ground that the written statement was filed therein on 4. 11. 1962 that is about 12 days before the death of Udai Bhan Singh. The admissions of Udai Bhan Singh contained in the gift-deed in favour of Smt. Yashoda Devi was discarded on the ground that the deed had been executed by a Mukhtar-e-Aam and not by Udai Bhan Singh himself, although the fact that the gift-deed had been duly acted upon had not been disputed. The Revising Authority also observed that Smt. Yashoda Devi could not acquire the status of lawful married wife of Udai Bhan Singh either in the house of her husband or outside. 18. On a re-appraisal of evidence in the manner indicated above, the Deputy Director of Consolidation concluded that the petitioner had failed to prove the factum of marriage between Udai Bhan Singh and Sm|. Yahsoda Devi and further in the circumstances indicated hereinabove, the presumption of marriage stood 19. The marriage as contemplated under the Hindu Law is one of the ten Sanskaras through which a life of well conducted Hindu progresses to its appointed end. It constitutes and indissoluble union. Even the death of the husband did not dissolve the tie until the Legislature stepped in and permitted so. The rigour of the law of a sacramental marriage however stands relaxed with the passage of time not only because of custom for certain classes and localities or legislative intervention that too leaving the rules of pure Hindu law intact and unaffected to a great extent. 20. The rigour of the law of a sacramental marriage however stands relaxed with the passage of time not only because of custom for certain classes and localities or legislative intervention that too leaving the rules of pure Hindu law intact and unaffected to a great extent. 20. While, it is true that no marriage is valid unless the parties have capacity to marry and the marriage is duly solemnised according to Hindu Law yet a marriage established in fact is presumed to be according to law including the due performance of the ceremonies which presumption is however, rebuttable where the parties lived and were treated as husband and wife for a number of years and in the absence of any material pointing to the contrary conclusion a presumption could be drawn that the parties were lawfully married. There may be circumstances, the cumulative effect whereof may warrant the conclusion that the factum of marriage is not proved. ,- 21. The nuptial ceremonies essential to the validity of a marriage under Hindu Law are the invocation before the sacred fire and the saptpadi that is taking of seven steps by the bride and bridgroom jointly before the sacred fire. The ceremony of "agni Parnayana" is popularly known as pheras. According to the Griha Sutras parinayana are three, though in practice they are usually seven or five. The Agni parinayana is the rite of going round the nuptial fire and water pot, at which time although the couple keeps to the right hand side of the nuptial fire and the waterpot, the last ceremony of the rites and ceremonies of a Hindu marriage is Saptapadi which is the most important ceremony and must be performed in all sacramental marriages. This is the ceremony in which the bridegroom leads the bride for seven steps. The Saptapadi which is the most material of all the nuptial rites and marriage becomes complete and irrevocable on the completion of the seventh step. The marriage becomes irrevocable on the completion of the Saptpadi or ceremony of seven steps and from that moment the wife passes into her husbands Gotra. Till then the marriage is imperfect and revocable. The Saptapadi which is the most material of all the nuptial rites and marriage becomes complete and irrevocable on the completion of the seventh step. The marriage becomes irrevocable on the completion of the Saptpadi or ceremony of seven steps and from that moment the wife passes into her husbands Gotra. Till then the marriage is imperfect and revocable. But this imperfection, it seems to be cannot render the marriage void and cannot be deemed to go beyond an irregularity having no effect on the rights and obligations arising out of the marriage or on the legitimacy of the children born out of such a wed-lock. 22. In the present case from the evidence and materials brought on record, it appears that the respondent No. 1 mistook Agni Parinayana popularly known as Pheras or Bhanwars with the Saptpadi. The statement of Smt. Yashoda Devi had to be read as a whole. In her cross-examination she had referred to the Pheras and not the Saptpadi. In any case in face of the admissions of Udai Bhan Singh clearly indicating that he had throughout treated the marriage to have been performed on a regular basis and that he had throughout recognised the status of Smt. Yashoda Devi to be his duly wedded wife, there could be no justification for doubting the legitimacy of the petitioners birth and his being the of-spring of a lawful wed-lock. 23. As already indicated hereinabove presumption available in law in regard to a valid marriage could be rebutted or destroyed by establishing that the conduct of the parties was inconsistent with the relation of husband and wife. 23. As already indicated hereinabove presumption available in law in regard to a valid marriage could be rebutted or destroyed by establishing that the conduct of the parties was inconsistent with the relation of husband and wife. In the present case, in face of the admissions of Udai Bhan Singh in the judicial proceedings as well as other proceedings and other transactions, and the fact that their implementation had never been challenged and the conduct of Udai Bhan Singh throughout the long period of cohabitation with Smt. Yashoda Devi extending for a period of over 25 years during which out of the union eight children were born, including the petitioner specially when the status of the aforesaid children were regarded and recognised not only by Udai Bhan Singh but as well as others as legitimate children, the presumption of law in regard to the existance of a valid marriage between Udai Bhan Singh and Smt. Yashoda Devi and the due performance of the ceremonies connected therewith could not be taken to have been effectively rebutted or destroyed on the considerations noticed in the order of the Deputy Director of Consolidation. 24. The findings recorded by the Deputy Director of Consolidation on the question of marriage in dispute and the legitimacy appears to have been based on wrong assumption and irrelevant consideration. Such a finding being perverse cannot be sustained. 25. The provisions contained in Section 49 of the U. P. Consolidation of Holdings Act is to the following effect: "49. 24. The findings recorded by the Deputy Director of Consolidation on the question of marriage in dispute and the legitimacy appears to have been based on wrong assumption and irrelevant consideration. Such a finding being perverse cannot be sustained. 25. The provisions contained in Section 49 of the U. P. Consolidation of Holdings Act is to the following effect: "49. Bar to Civil Jurisdiction.-Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land tying in an area, for which a notification has been issued under sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken over this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which 3 proceeding could or ought to have been taken under this Act : Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land possessions over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act. " 26. The implications arising under a provision which stand pari material with the aforesaid provision came up for consideration before the Apex Court in the case of M/s. Phool Chand v. M/s. Kay Pee Cee Investments and Am. JT 1991 (1) SC 186. In its aforesaid decision the Apex Court pointed out that the revisional power envisaged under the provisions referred to above is not by appellate power and must fall short of the appellate powers of interference with a finding of fact where the finding of fact depends upon the credibility of witness, there being a conflict of oral evidence of the parties. 27. 27. In its another decision in the case of Ram Dular v. Deputy Director of Education, Jaunpur, 1994 RD 290, the Apex Court had observed, while interpreting the scope of Section 48 of the U. P. Consolidation of Holdings Act that for considering the correctness, legality or propriety of the order or correctness of the proceedings or irregularity thereof the revising authority could not assume to itself the jurisdiction of the original authority as a fact finding authority by appreciating itself of those facts de nove. It was further observed that the revising authority has to consider whether the legally admissible evidence had not been considered by the authority in recording a finding of fact or law or the conclusion reached by it is based on no evidence or any patent illegality or impropriety had been committed or there was any procedural irregularity going to the root of the matter had been conducted in recording the finding. 28. In another decision of the Apex Court in the case of Narbada Prasad v. Chhagan Lal and others, AIR 1969 SC 395 , it was indicated that the practice of the courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who heard the witnesses and watches their demeanour and judges of their credibility in the first instance. It was observed that in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this the appellant must do something more than merely ask for a re-assessment of the evidence. He must show wherein the assessment has gone wrong. It was emphasised that where the court of first instance relies upon probabilities alone, the appellate court may be in as good position as the court of trial in judging of the probabilities; but where the court of trial relies upon its own sense of credibility of a witness the appellate court is certainly at a disadvantage because it has not before it the witness but the dead record of the deposition as recorded. It was also observed that where there is evidence with the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial Judge. 29. It was also observed that where there is evidence with the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial Judge. 29. In yet another decision of the Apex Court in the case of Madkusudan Das v. Smt. Naraini Bai, AIR 1983 SC 114 , it was indicated that the general principle is that in an appeal against a trial court decree when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and in observ ing the manner in which they gave their testimony. It was further emphasised that when there is a conflict of oral evidence on any matter in issue and its resolution turn upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular wit ness has escaped the notice of the trial Court ther is a sufficient balance of im probability to displace its opinion as to where the credibility lies. Of course it is the appraisal of the evidence by the trial court suffers from a material irregularity or is based on an inadmissible evidence or on a misreading of evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. 30. Taking into consideration the scheme underlying the U. P. Consolidation of Holdings Act and the observations made by the Apex Court referred to herein before, there can be no escape from the conclusion that the jurisdiction with which the Deputy Director of Consolidation stands vested under the provisions contained in Section 48 of the aforesaid Act cannot be deemed to be such an appellate power as is vested in the appellate authority envisaged under the Act. The revisional power contemplated u/s. 48 of the U. P. Consolidation of Holdings Act therefore, must fall short of the appellate power of interference with a finding of fact where the finding of fact depends on the credibility of the witnesses there being a conflict of oral evidence led by the parties. 31. In the circumstances, therefore, the Deputy Director of Consolidation ought not to have interferred with the findings recorded by the Consolidation Officer as affirmed by the appellate authority in the absence of any compell ing circumstances justifying the same. It seems to me that no such cir cumstance existed in the present case which could compel the Deputy Director of Consolidation to take a view of the evidence adduced by the parties in the case contrary to the view taken by the Consolidation Officer which was af firmed in appeal. The Deputy Director of Consolidation clearly appears to have exceeded the limits of jurisdiction with which he stood vested under the provisions contained under Section 48 of the U. P. Consolidation of Holdings Act in the circumstances noticed hereinabove. 32. In view of my conclusions indicated hereinabove, sufficient ground has been made out for interference by this Court. 33. In the result, this writ petition succeeds. The impugned order passed by the Deputy Director of Consolidation dated 25. 8. 1975 is hereby quashed and the order passed by the Consolidation Officer as affirmed by the Settle ment Officer, Consolidation is restored. 34. The parties are, however, directed to bear their own costs. Petition allowed. .