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2004 DIGILAW 433 (PNJ)

Dharam Pal v. Amar Devi alias Parwati

2004-04-07

N.K.SUD

body2004
JUDGMENT N.K. Sud, J. - This judgment will dispose of two appeals viz. RSA Nos. 2538 and 2539 of 1983, between the same parties and involving common questions of law and facts. 2. The only question for determination in these two appeals is as to whether plaintiff-Amar Devi has been able to prove that she was the wife of one Bundi. 3. Respondent-Amar Devi filed two separate suits for injunction restraining the appellant-defendants from interfering in her possession of the suit property. It is not in dispute that the suit property belonged to one Bundi, who had died at Village Takhatgarh on 31.7.1978. Amar Devi claimed that she was the widow of Bundi and, as such, entitled to inherit his property and that the defendants had no right, title or interest in that property. The suits were resisted by the defendants claiming that Amar Devi was not the widow of Bundi and Bundi had executed a Will dated 27.3.1978 in their favour. On the pleadings of the parties, following issues were framed :- "1. Whether the plaintiff is the widow of Bundi deceased and entitled to inherit the suit property ? OPP. 2. Whether Bundi deceased executed a valid will dated 27.3.1978 in favour of defendants, if so its effect ? OPP. 3. Whether the plaintiff is entitled to permanent injunction or in the alternative for possession as prayed ? OPP. 4. Relief." 4. The trial Court decided the first issue against plaintiff-Amar Devi and came to the conclusion that she had not been able to discharge the onus of proving her relationship with Bundi. Issue No. 2 was decided against the defendants holding that the Will propounded by them was not genuine. However, in view of the finding on issue No. 1, both the suits filed by Amar Devi were dismissed vide judgment and decree dated 30.4.1982 by the Sub-Judge Ist Class, Anandpur Sahib holding that she was not entitled to the relief claimed by her. 5. The appellant-defendants did not challenge the finding of the trial Court that the alleged Will of Bundi dated 27.3.1978 set up by them in defence was not genuine and, thus, the same has become final. 5. The appellant-defendants did not challenge the finding of the trial Court that the alleged Will of Bundi dated 27.3.1978 set up by them in defence was not genuine and, thus, the same has become final. On the other hand, plaintiff-Amar Devi challenged the finding against her on issue No. 1 by filing two separate appeals against the judgment and decree dated 30.4.1982 before the Additional District Judge, Rupnagar, which have been allowed vide the impugned judgment and decree dated 28.7.1983. The Additional District Judge, Rupnagar, has held that Amar Devi had discharged the onus of proving that she was the widow of Bundi. 6. Bundi belonged to village Takhatgarh. In her statement, plaintiff-Amar Devi had stated that she was married to Bundi about 30 to 35 years back at Village Payli in Nalagarh State, where they lived for 10 to 15 years. Thereafter, they had migrated to village Pachranda where they lived for 25 to 26 years. Thereafter, they had shifted to Village Takrala where they lived for 8 to 9 years until Bundis death and it was at this village where his last rites were performed by her. The trial Court rejected her claim mainly on two grounds; firstly, that she had not been able to show the time, place and form of her marriage with Bundi and, secondly, that the witnesses produced by her were neither related to the deceased nor related to her and, as such, could not have any special means of knowledge so as to prove the marital relationship of the deceased-Bundi with plaintiff-Amar Devi. It was observed that as per the statement of Amar Devi, one Ishri, an aunt (Chachi) of the deceased, with whom they had cordial relations, was admittedly, alive. She was the best person to throw light on the relationship of the plaintiff with Bundi but she was not produced. It was further observed that two more persons who could have special knowledge about the relationship; namely, Lachhman and Devi Chand, in whose houses Bundi and Amar Devi had allegedly lived at villages Takrala and Pachranda, respectively, were also not produced. 7. The lower Appellate Court, on the other hand, has referred to the evidence on record and discussed the same in detail in paras 9 to 19, before recording a finding in favour of the plaintiff, as under :- "9. 7. The lower Appellate Court, on the other hand, has referred to the evidence on record and discussed the same in detail in paras 9 to 19, before recording a finding in favour of the plaintiff, as under :- "9. For proper appreciation of the evidence led by the two sides it is necessary to notice some salient circumstances. 10. Both the properties in dispute are situated in village Takhatgarh, ancestral village of Bundi. It is not in dispute that he was practising Hikmat and had shifted from the said village long before his death. His death admittedly took place in village as claimed by the plaintiff- appellant and admitted by defendant-respondent in their written statement, though the respondents claimed that he had gone there on casual visit. However that claim could not be substantiated by the respondents. It was also admitted by the respondents in their written statement that Bundi used to work at Pachranda as stated by the appellant in the witness box. However the respondents had pleaded in the written statement that Bundi had also been doing Hikmat at his village Takhatgarh but this assertion also could not be proved by them and no evidence worth the name was led. Death certificate Ex.P-3 reinforces the claim of the appellant about the death of Bundi at Takrala. 11. The next circumstance deserving notice is failure of the respondents to substantiate their assertion about their being the near collaterals and as such could but for relationship claimed by the plaintiff- appellant, would have succeeded to the estate of Bundi. Instead mutation was sanctioned in favour of the respondents on the basis of Will dated 27.3.1978 which the trial court rejected as not being genuine Will of the deceased. That finding of the trial Court has not been challenged before me. The legatees of the fake Will are the sons of Dina Nath, Harbans Lal, Husan Chand. Two of these legatees are minors. The pedigree table was the best documentary evidence which could be produced by the respondents to substantiate their claim about being collaterals of the deceased but they did not do so. The legatees of the fake Will are the sons of Dina Nath, Harbans Lal, Husan Chand. Two of these legatees are minors. The pedigree table was the best documentary evidence which could be produced by the respondents to substantiate their claim about being collaterals of the deceased but they did not do so. It is also interesting to note that mutation was got sanctioned in favour of the defendants/respondents on the basis of said Will at a place far away from the village where property is situated and on the complaint made by the appellant an inquiry was held by the Public Grievance Officer, Ropar, who gave his report dated 12.11.1980 with the conclusion that the Halqa Patwari, Takhatgarh had entered the mutation wrongly in favour of Amar Dev, Pohu Lal and Dharam Pal who are respondents No. 1 to 3 having prior knowledge that Amar Devi appellant is the widow of the deceased and got it sanctioned in their favour with a mala fide intention and that Amar Devi could not fulfill the illegal demand of that Patwari for entering the mutation in her name. During that inquiry amongst others, statements of Husan Chand father of respondent No. 3, Pohu Lal and Harbans Lal f/o respondent No. 2 Amar Dev and Dharam Pal respondent No. 1 were recorded. 12. Appreciating the evidence led by the parties in the background of above circumstances, it would appear that the appellant has successfully established that by the test of preponderance of probabilities that she is widow of Bundi Ram deceased. 13. The claim made by her in the pleadings about their relationship was reiterated in the witness box on oath as PW-1 and it finds corroboration from the sworn testimony of PW-2 Mela Ram, chowkidar of Takrala where Bundi lived with her for about 9 years before his death in that village, PW-3 Babu Ram of village Pachranda where the appellant had lived with her deceased husband before shifting to village Takrala and PW-4 Shankar of village Takhatgarh, ancestral village of the deceased. There is nothing to disbelieve the testimony of any of the said witnesses which sounds natural and they have consistently deposed about their having seen appellant living with Bundi as his wife and about their being treated as such. There is nothing to disbelieve the testimony of any of the said witnesses which sounds natural and they have consistently deposed about their having seen appellant living with Bundi as his wife and about their being treated as such. All these witnesses had the special means of knowledge to form an opinion about the relationship of the appellant with the deceased as expressed by their own conduct in dealing with them and also as manifested by the conduct of the deceased and the appellant. 14. The learned counsel for the appellant referred to and relied upon the Full Bench decision of our High Court in Amar Singh v. Chhaju Ram etc., 1972 Curr. L.J. 591, to support his contention that the evidence of the said witnesses examined by the appellant is relevant and admissible to prove the relationship with the deceased and the trial Court was in error in rejecting the same on the ground that it was not so admissible for the reason that they did not have special means or knowledge for forming their opinion about the relationship of the two. The said view also find support from a Single Bench decision of our High Court in Puran Singh and others v. Sampuran Singh and others, 1983 C.L.J. (C & Cr.) 401, wherein it was observed that where there is evidence showing relationship and corroboration of statement by documentary evidence on record, the oral evidence could not be discarded merely because the witnesses could not give the detail of the family. The said authorities clearly support the contention of learned counsel for the appellant. The question that was posed for the consideration and decision of the Full Bench was as to whether in cases where it becomes necessary to prove relationship of one person to another, a witness appearing in court can make statement to prove the conduct of another having special means of knowledge about disputed relationship and when that conduct expresses opinion of that person, about the relationship and it was answered in the affirmative. The second question which was answered in the negative by the Full Bench was whether it is necessary that the statement of the witness is to be confined only to his own conduct expressive of his opinion with regard to the existence of the disputed relationship. The second question which was answered in the negative by the Full Bench was whether it is necessary that the statement of the witness is to be confined only to his own conduct expressive of his opinion with regard to the existence of the disputed relationship. It is equally clear that for the evidence of a witness to be relevant and admissible under Section 50 of the Evidence Act, it is not necessary that he should be related to the person whose relationship is in dispute as he can have the special means of its knowledge because of his being in a position to form the opinion as expressed by his own conduct or the conduct of another person. In this case the appellant examined witnesses who were residing in these villages where she had been living with Bundi deceased for a long time, giving an opportunity to the witnesses to have special means of knowledge about their relationship as expressed by their own conduct and the conduct of the deceased and the appellant. The trial Court was, therefore, not right in rejecting the evidence of these witnesses on the ground of its being inadmissible. 15. There is no doubt that the appellant was not able to produce any person to corroborate her claim about solemnisation of her marriage with Bundi deceased but that by itself cannot defeat her claim having regard to the fact that marriage was solemnised about 45 years back. It has been deposed by her that Bundi had gone to her parents village before marriage in Nalagarh state where their marriage was solemnised and that no one from Takhatgarh the ancestral village of Bundi had attended the marriage. She clarified that neither her parents nor any member of her family from parents side is alive. Therefore, no adverse inference can be drawn against her for not examining any one later from the side of her parents or from the family of her deceased husband, in the absence of any evidence about any of his close relative being alive. Another reason given by the trial Court for rejecting the claim of the appellant was that she was unable to give the name of the Pandit who performed the marriage ceremony and also did not produce him. Another reason given by the trial Court for rejecting the claim of the appellant was that she was unable to give the name of the Pandit who performed the marriage ceremony and also did not produce him. It is idle to expect the appellant to remember the name of the Pandit about 45 years after the solemnisation of her marriage. 16. The evidence led by the appellant referred to above clearly shows that she cohabited with Bundi deceased as his wife long period of about 45 years and this circumstance by itself justifies the inference of her marriage with the deceased. The learned counsel for the appellant referred me to single Bench decision of our High Court in Mal Singh and another v. Ram Kaur, AIR 1973 P&H 124, to support his contention in this behalf. A perusal of the said authority would show that in that case evidence was led that the respondent had lived as wife of the deceased whose property was in dispute for a period of about 25 years, which was challenged by the other side. In this context it was held that evidence of marriage by habit and repute was legally admissible and was sufficient to discharge the onus placed on the lady to prove her marriage as in this case. 17. Another material circumstance lending corroboration to the claim of the appellant is that long before any controversy had arisen about this relationship, she was recorded in the electoral roll of village Pachranda as the wife of Bundi. Ex.P-2 is the certified extract of the roll prepared for the year 1975 wherein at Sr. No. 590, the name of Bundi is entered while at 591 name of appellant is the wife of Bundi Ram has been entered. It was not disputed that certified copies of entries in electoral rolls are relevant and admissible as such without any further proof, being a public document. 18. The learned counsel for the appellant has invited my attention to the admissions made by Husan Chand, Harbans Lal and Dharam pal in the enquiry held on the complaint of the appellant regarding the illegal sanction of the mutation in favour of respondents No. 1 to 3. 18. The learned counsel for the appellant has invited my attention to the admissions made by Husan Chand, Harbans Lal and Dharam pal in the enquiry held on the complaint of the appellant regarding the illegal sanction of the mutation in favour of respondents No. 1 to 3. It was admitted by them that they came to know about the death of Bundi in Takrala about 10/12 days after it had taken place and thereafter had gone to that village to condole his death. Harbans Lal in his statement copy whereof is Ex.DW-1/A had specifically admitted that at the time he had gone to village Takrala, along with his brother Husan Chand, he had met Amar Devi there and that he had condoled the death of Bundi with her, he sought to explain this conduct by saying that since she was there, therefore, he offered condolences to her. But this is hardly convincing. The evidence led by the respondents in rebuttal does not inspire any confidence and, therefore, cannot be relied upon to sustain their assertion that the appellant is complete stranger and was not living with Bundi deceased as his wife uptill his death. All the witnesses examined by them are from Takhatgarh and as already noticed and as admitted by Jagir Singh DW-3, Bundi was not doing Hikmat in Takhatgarh. As noticed earlier he had shifted from that village and spent a long time at village Pachranda and thereafter shifted to village Takrala where he died after a stay of about 8/9 years in that village. 19. It will, therefore, appear that the appellant has discharged the onus of proving that she is widow of Bundi deceased and I decide the issue accordingly by reversing the finding given by the trial court with regard thereto". 8. Mr. G.S. Punia, learned counsel for the appellants, has based his challenge to the judgment of the lower Appellate Court on two grounds; firstly, that there were discrepancies in the statement of plaintiff-Amar Devi about the duration of her marriage with Bundi and duration of their stay at villages Payli, Pachranda and Takrala; and secondly, that the witnesses produced by the plaintiff to prove her relationship with Bundi did not have special means of knowledge on the subject and, as such, their testimony could not be relied upon. For this purpose, he relied on the provisions of Section 50 of the Indian Evidence Act, 1872. He further submitted that Ishri, a real aunt of Bundi, who was, admittedly, alive at the relevant time and who was stated to be having cordial relations with the plaintiff, was the best person to throw light on the relationship of Bundi with the plaintiff. But for the reasons best known to the plaintiff, she was not produced. 9. Mr. G.S. Jaswal, learned counsel for the respondent, on the other hand, supported the detailed findings recorded by the lower Appellate Court. 10. I have heard the counsel for the parties and I am of the considered view that the judgment of the lower Appellate Court warrants no interference. The question about the relationship of plaintiff-Amar Devi with Bundi is essentially a question of fact to be determined on the basis of evidence led by the parties. The appellant-defendants had contested the suit by claiming to be collaterals of Bundi and had further set up their claim to his property on the basis of a Will dated 27.3.1978. This Will has been found to be fake by the trial Court and this finding has become final. The appellants also failed to produce the pedigree table to substantiate their claim that they were collaterals of Bundi. On the other hand, the claim of the plaintiff that she was widow of Bundi was corroborated by PW-2 Mela Ram, the Chowkidar of Village Takrala, PW-3 Babu Ram, Lambardar of Village Pachranda and PW-4 Shankar, a resident of Village Takhatgarh. These are the three places where the plaintiff and Bundi had lived during their married life for different periods. These witnesses have clearly stated that Bundi and Amar Devi had been living as husband and wife and had also been treated as such by others. A Lambardar of a village or a Chowkidar of a village indeed has special means of knowledge about all the residents of the village and their testimony cannot be brushed aside lightly. The lower Appellate Court has, therefore, correctly taken into account the testimony of these witnesses to hold that plaintiff-Amar Devi was duly married to Bundi. A Lambardar of a village or a Chowkidar of a village indeed has special means of knowledge about all the residents of the village and their testimony cannot be brushed aside lightly. The lower Appellate Court has, therefore, correctly taken into account the testimony of these witnesses to hold that plaintiff-Amar Devi was duly married to Bundi. It has been correctly observed that for an evidence of the witness to be relevant and admissible under Section 50 of the Indian Evidence Act, 1872, it is not necessary that he should be related to the person whose relationship is in dispute as he can have special means of its knowledge because of his being in a position to form the opinion as expressed by his own conduct or the conduct of another person. It is true that Ishri could also have been a person having personal knowledge about the relationship of Amar Devi and Bundi. However, merely because she was not produced cannot be a ground for disbelieving the other witnesses. It is true that the plaintiff was not able to produce any person to corroborate her claim about the time, place and form of her marriage with Bundi but from the circumstantial evidence showing that they had lived as husband and wife for a long period of 45 years, their marriage stands established. Another significant piece of evidence in this case is Exh.P-2, a certified extract of the electoral roll of Village Pachranda prepared in the year 1975 much prior to the death of Bundi. At Serial No. 591, name of plaintiff-Amar Devi is entered and she is shown to be the wife of Bundi. Still further, the conduct of the appellant-defendants also shows that even they had been treating Amar Devi as wife of Bundi. Appellant Dharam Pal, Husan Chand (father of Pohu Lal, appellant) and Harbans Lal (natural guardian of Amar Dev, appellant), during the course of inquiry in the complaint about illegal sanction of mutation in their favour had admitted that they had come to know about the death of Bundi in Village Takhatgarh about 10/12 days after it had taken place and had gone to that village to condole his death. Harbans Lal had specifically admitted that he and his brother Husan Chand had condoled the death of Bundi with Amar Devi. Harbans Lal had specifically admitted that he and his brother Husan Chand had condoled the death of Bundi with Amar Devi. Had Amar Devi not been wife of Bundi, there was no need to condole Bundis death with her. 11. Thus, I am of the considered view that on the overall appraisal of the evidence, the lower Appellate Court has correctly come to the conclusion that plaintiff-Amar Devi had discharged the onus of proving her relationship with Bundi by the test of preponderance of probabilities. This evidence cannot be over-looked merely on the basis of some minor discrepancies about the duration of marriage or duration of stay at various places in the statement of the plaintiff. The plaintiff is an illiterate lady and was giving details of events that had taken place years ago on the basis of her memory. Under such circumstances, there is nothing unusual if she has not been able to recollect exact period of her stay at the three villages. Since, the lower Appellate Court has taken a possible view on a fair appreciation of the evidence on record, this Court cannot interfere in Regular Second Appeal merely because another view may be possible on a reappreciation of the same evidence. In a recent judgment, the Apex Court in Thiagarajan and others v. Sri Venugopalaswamy B. Koil and others, 2004 AIR SCW 1618, in para-24 has observed as under :- "24. In the present case, the lower appellate Court fairly appreciated the evidence and arrived at a conclusion that the appellants suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate Court was based on no material." Accordingly, I find no merit in these appeals and dismiss the same. No costs. Appeals dismissed.