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2007 DIGILAW 215 (CHH)

CHANDAN SINGH v. RANDHEER SINGH

2007-03-15

S.K.GANGELE

body2007
JUDGMENT 1. This is plaintiffs appeal against the judgment and decree passed in Civil Appeal No. 4-A/95 affirming the judgment and decree passed by the trial Court. The appeal was admitted for hearing vide order dated 26.7.2002 on the following substantial question of law : "Whether the Courts below have erred in holding that Bhuri Bai was the heir of Pancharn Singh, when as per the finding of the first appellate Court she was not legally married wife of Panch am Singh". 2. Plaintiffs filed a suit for declaration and recovery of possession and permanent injunction. They pleaded that Pratap Singh and Imratsingh were real brothers and Imratsingh had two sons i.e. Mangal Singh and Pancharnsingh. Mangal Singh had two sons i.e. Chandan Singh and Vinay Singh. Plaintiffs are sons of Mangal Singh. Panchamsingh had no sons or daughter, he died issueless, hence they become owner of the property of Pancham Singh which was agriculture land and a house. The defendants denied the claim of the plaintiffs. They pleaded that Bhuribai was a widow woman and after the death of her husband she married with Pancham Singh and she executed a registered gift deed on 29.9.1965 in favour of the defendants and on the basis of the aforesaid gift deed they became owner of the suit property. The suit land was mutated in favour of Bhuribai died in Samvat 2025. The trial Court idler appreciation of evidence has held that earlier Bhuribai was married to Kalyansingh and after death of Kalyansingh on the basis of evidence she became the wife of Panchamsing hand she executed a gift deed in favour of the defendants on 29.9.1965 and because the land came in favour of Bhuribai hence the plaintiffs have no right over the suit property, the aforesaid finding shave been affirmed by the first appellate Court. 3. The learned senior counsel has submitted that both the Courts have committed error of law in holding the factum of marriage between Bhuribai and Panchamsingh proved although from the evidence it is clear that no marriage ceremony was performed as per law. Hence, when there was no marriage ceremony as per law, Bhuribai could not inherit the suit property Hence; the findings of-both the Courts are perverse. In support of his contention, learned senior counsel relied on a judgment of the Division \ Bench Damroolal Harchand and others Vs. Hence, when there was no marriage ceremony as per law, Bhuribai could not inherit the suit property Hence; the findings of-both the Courts are perverse. In support of his contention, learned senior counsel relied on a judgment of the Division \ Bench Damroolal Harchand and others Vs. Laxminarayan Ramanujdas Brijpuria and others and the judgment of the Hon'ble Supreme Court Surjit Kaur. Vs. Gdrja Singh and others Contrary to this learned counsel for the respondents defendants has submitted that both tile Courts have rightly held that Pancham Singh and Bhuribai were husband and wife and in such circumstances the suit of the plaintiffs has rightly been dismissed. In support of his contention he relied on judgments of the Hon'ble Supreme Court S.P.S. Balasubramanyam Vs. Suruttayan alias Andali Padayaehi and others and Gokal Chand Vs. Parvin Kumari 4. The plaintiffs filed the suit on the basis of fact that Imratsingh had two sons namely Mangalsirigh and Panchamsingh and another brother of Imratsingh was Pratapsingh, who had one son i.e. Kalyansingh and Kalyansingh was married to Bhuribai. In the written statement the marriage of Kalyansingh and Bhuribai has not been admitted by the defendant but the fact remains that Kalyansingh died and Bhuribai was the widow of Kalyansingh because the aforesaid finding has been given by both the Courts below. After the death of Kalyansingh, Bhuribai is said to have married with Panchamsingh. Both the Courts have held that Bhuribai and Pancham Singh had been living together for a quite long time and this fact has been found proved from the evidence of the plaintiffs themselves (PW1) Chandansingh (PW 2) Vinaysingh and (PW 3) Ramsingh. The detail analysis of the evidence has been done by the learned first appellate Court in para 15 of the judgment. Apart from this exhibit D-1 which was an application filed by the plaintiffs before the Sub Divisional Officer the name of Bhuribai has been mentioned widow of Panchamsingh. Similarly against mutation order of S.D.O. an appeal was filed by the plaintiffs before the Revenue Commissioner and copy of memo of appeal has been filed as D-2. In the aforesaid memo of appeal, name of Bhuribai has been mentioned Bhuribai widow of Pane ham Singh. Similarly against mutation order of S.D.O. an appeal was filed by the plaintiffs before the Revenue Commissioner and copy of memo of appeal has been filed as D-2. In the aforesaid memo of appeal, name of Bhuribai has been mentioned Bhuribai widow of Pane ham Singh. The witness of defendants (DW 2) Munshikhan has clearly stated that Panchamsingh married to Bhuribai as Dundha marriage which means that Panchamsingh at that time was unmarried and he married to a widow. The same fact has been stated by (DW 3) Malammsingh and (DW 4) Parvatsingh. After appreciation of the above evidence, both the Courts have held that Panchamsingh and Bhuribai had been living together as husband and wife for quite a long time and therefore, they were husband and wife. In my opinion, the plaintiffs themselves have mentioned name of Bhuribai widow of Panchamsingh in Ex. D-1and Ex. D-2. 5. The Hon'ble Supreme Court Balasubramanyam Vs. Suruttayan alias Andali Padayaehi and other; after relying earlier judgment of Hon'ble Supreme Court Gokal Chand Vs. Parvin Kumari has held as under with regard to presumption of valid marriage: "What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable [see Gokal Chand Vs. Parvin Kumari. It has been found by all the Courts including the High Court that Chinthambi and Payayee No.2 lived together since long. But the High Court held that the presumption stood rebutted for reasons stated earlier. The question is if any of the circumstances taken individually or together were sufficient to warrant the finding that the presumption stood rebutted". 6. In my opinion, both the Courts have rightly held a presumption of valid marriage in view of the facts-and circumstances of the case. Consequently, I answer the substantial question of law in favour of the respondents defendants. Hence, I do not and any merit in this appeal, it is hereby dismissed. 7. No order as to costs. Appeal Rejected.