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Musammat Lilawati Kuar Vs. Chottey Singha Nd ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All332; 61Ind.Cas.932
AppellantMusammat Lilawati Kuar
RespondentChottey Singha Nd ors.
Cases ReferredBasant Bihari v. Secretary of State
Excerpt:
civil procedure code (act v of 1908), order xx, rule 2 - judgment, pronouncement of, by successor-in-office of judge--judgment written by judge after ceasing to be judge of the court, legality of. - - the learned judge in a well-considered judgment came to the conclusion that the plaintiff had failed to prove that she was the widow of bijaipal singh. in fact she had failed to prove that bijaipal singh was ever married, he accordingly dismissed the claim. they are men of better social status and of higher standing than the men produced for the plaintiff. we do not think it safe to accept either the account-books or the entries in the patwaris registers as reliable evidence in proof of the fast alleged by the plaintiff that she was married to bijaipal singh. 3. the learned counsel for the.....1. this appeal relates to an estate in the district of aligarh, known as the kora estate. the plaintiff same into court on the allegation that she is the widow of the last male holder, who died some time in 1908. her alleged husband, bijaipal singh, admittedly died a minor aged about 14 it is also admitted that bijaipal singh was adopted by the widow of sukhram singh in 1895. sukhram singh was really the undisputed last male holder of the estate in dispute. subsequent to the adoption of bijaipal singh there was a dispute between him and the sister's sons of sukhram singh who challenged the adoption. the ease was fought up to the high court and bijaipal singh's adoption was upheld. the case is reported as jai singh v. bijai pal singh a.w.n. (1905) 20 : 27 a. 417 : 2 a.l.j. 36 about five.....
Judgment:

1. This appeal relates to an estate in the district of Aligarh, known as the Kora Estate. The plaintiff same into Court on the allegation that she is the widow of the last male holder, who died some time in 1908. Her alleged husband, Bijaipal Singh, admittedly died a minor aged about 14 it is also admitted that Bijaipal Singh was adopted by the widow of Sukhram Singh in 1895. Sukhram Singh was really the undisputed last male holder of the estate in dispute. Subsequent to the adoption of Bijaipal Singh there was a dispute between him and the sister's sons of Sukhram Singh who challenged the adoption. The ease was fought up to the High court and Bijaipal Singh's adoption was upheld. The case is reported as Jai Singh v. Bijai Pal Singh A.W.N. (1905) 20 : 27 A. 417 : 2 A.L.J. 36 About five days after the adoption of Bijaipal Singh his adoptive mother, Laohmi Kunwar, died on the 3rd of August 1895. After her death the natural father of Bijaipal Singh looked after the person and property of his minor son. Bijaipal Singh since his adoption lived at Kora Ruatampur, whish is in the district of Aligarh, His natural father's village was Barai in the district of Etah where all his natural paternal family resided. In the family of his natural father the only person we need mention here is Sher Singh, the younger brother of Raghubar Singh and the untie of Bijaipal Singh. Bijaipal Singh died on the 27th of January 1908 On the 29th of January 1908 an application was made in the name of one Musammat Lilawati by Raghubar Singh, the natural father of the deceased minor, in the Revenue Court, asking for mutation in favour of the applicant on the allegation that she was the widow of Bijaipal Singh. Notices were issued on the application and objections were filed on the 10th of February 1908 and on the 19th February 1908 by the collaterals of Sukhram Singh, that is to say, two sets of objectors filed two sets of objection. The objectors denied that the applicant was the widow of Bijaipal Singh and further stated that the latter had died a bachelor and unmarried. It was Lalc alleged on behalf of the objectors that the applicant's real name was Mutammat Gango, who was the younger daughter of Bhawani Singh and was married to one Shaitan Singh alias Sultan Singh of Barai. Bjth parties, namely, the appellant and the objectors, gave evidence before the Revenue Court. The learned Assistant Collector, after considering the evidence, come to the conclusion that Bijaipal Singh had died a bachelor and unmarried and that the applicant was not his widow. He accordingly allowed mutation of names in favour of some of the objectors, that is to say, those who were the next reversionary of Bijaipal Singh The order of the first Court was confirmed by the collector with regard to the rejection of Lilawati's application. The dispute between the objectors themselves continued up to the Board of Revenue, During the mutation proceedings chhote Singh, Nain Singh and Desraj sold three-quarters of the estate to Babu Kalyan Singh and his two sons on the 24th of April 1908 by a registered deed of conveyance. Raghubar Singh died some time in 1910. On the 21st of Mareh 1912 an application was made by the present plaintiff, through Bhawani Singh as her guardian, asking for permission to sue in forma pauperis. It was represented to the Court that the plaintiff was a minor and that Bhawani Singh was her natural father. She imploded as defendants to her application and to her intended suit the successful objectors in the mutation case and their transferees, as also some other collaterals of Sukhram. The application was opposed on behalf of defendants on several grounds. They alleged that the applicant was not a minor, that she was not the widow of Bijaipal Singh and that she was the elder daughter of Bhawani Singh, whose real name was Musammat Kalavati and who really was the widow of Raghubar Singh. The application was withdrawn on the 16th of August 1912. On the same day a fresh application in forma pauperis was made by the plaintiff, but this time she applied and sued as a major. The application was filed on her behalf by Counsel, Mr. Udebir Singh. The application was struck off in default. A third application was made on the 5th of January 1914 together with a pLalnt. Evidence was taken by the Court with regard to the allegation of poverty, and after carefully considering the matter the Court of first instance allowed the plaintiff to sue in forma pauperis. The order of the lower Court is dated the 3rd of August 1915. After permission to the plaintiff to sue as a pauper the defendants were called upon to put in their defence. They urged various pleas, but the most important and in fact the only one with which we are concerned here was their denial of the marriage of Bijaipal Singh with the plaintiff or with any other woman. They said that he had died a bachelor and unmarried and that the plaintiff was really Musammat Kalavati, the step mother of Bijaipal Singh and the widow of Raghubar Singh, who was trying to get the estate on a false allegation. Both parties give considerable evidence in support of their allegations. The greater part of evidence consists of oral evidence. The learned Judge in a well-considered judgment came to the conclusion that the plaintiff had failed to prove that she was the widow of Bijaipal Singh. In fact she had failed to prove that Bijaipal Singh was ever married, He accordingly dismissed the claim. In appeal to this Court the plaintiff challenges the decree against her.

2. Practically the grounds of appeal reduce themselves to two objections, which have been urged before us by the learned Counsel for the plaintiff appellant. The first and the foremost is that the evidence on the record proves that the plaintiff is the widow of Bijaipal Singh, and the second is said to be a legal and technical objection to the effect that the Judge who wrote the judgment was function officio at the time he wrote it and, therefore, there is no legal judgment in the case at all. We will first of all direct our attention to the first issue in the case, namely, whether Bijaipal Singh was married to the plaintiff. We would observe here that the learned Counsel for the plaintiff-appellant in addressing us said that he would first put before us the evidence of the most important witnesses for him and that if he found that their evidence made no impression upon us and that we were not prepared to act upon their evidence or believe it, he would not take up the time of the Court by reading the evidence of other minor witnesses. We think the line of argument adopted by him was quite correct and we therefore proceed to consider the evidence put before us and discussed by the learned Counsel for the plaintiff-appellant. He divided the evidence into two classes, namely, oral and documentary. The latter evidence consists only of six documents. Two of the documents are said to be account-books kept in the lifetime of Bijaipal Singh by the servants of the estate. They purport to be dated Sambat 1960 corresponding to the English year 1903. The ease for the plaintiff is that she was married to Bijaipal Singh some time between the 12th and 14th June 1903. The account-books are put in to show that they contain the expenses of the marriage of Bijaipal Singh. One witness was examined to prove the entries in the books, namely, Hoti Lal. Reliance was also plated on the statement of Baghubar Singh made in the mutation case. The other three documents are three entries in the diaries of three Patwaris. The patwaris were not examined in this case, but they were examined in the mutation proceedings and their statements by consent of parties and in fact the whole of the evidence in the mutation Base by consent of parties were read as evidence in this case in the Court below. The account books, when examined closely, do not carry conviction, If the allegation of Baghubar Singh were correct that the account-books were written by the servants of the estate and whatever amount was spent or received at the time of the marriage of Bijaipal Singh was entered in the books, the persons who are said to have sent in notes ought to have been produced with their own books. Some of them were produced, who merely stated that they sent neotas and had been present at the alleged marriage but who did not produce their books. Moreover, it is admitted by the plaintiff in her evidence that her gauna took plane three years afterwards, that is to say, some time in 1906. There were no books containing the gauna expense produced by Baghubar Singh in the mutations case or by the plaintiff in the present case. Some of the persons, whose names are, entered in the account books in question as those who had either paid or sent in neotas presents at the time of the marriage of Bijaipal Singh, have been examined on behalf of the defence. They are men of better social status and of higher standing than the men produced for the plaintiff. The defence witnesses, one and all, not only deny having sent in neotas but also say that Bijaipal Singh was not married at all. One of the witnesses for the plaintiff says that there was a mahfil at the time of the marriage, that is, a dance. We find no account of the expenses of a mahal in the account books filed for the plaintiff (vide deposition of Ram Chandra Singh at page 31 A). It is also in evidence on behalf of the plaintiff that in any case there was a mimic present at the marriage. We find no item in the account-books relating to the payment to any mimic. In fact, as we have said above, if each item was to be closely examined, one would find that the accounts were not the accounts of the estate of Kora kept by the servants of Bijaipal Singh in his lifetime, but probably were made up in a hurry for the purpose of the mutation case. As to the accuracy of the entries in the Patwaris diaries, the Patwaris themselves stated that they had no personal knowledge. The entries were that Bijaipal Singh had died leaving a widow, Muiammat Lilawati, The Patwaris stated that they had made this entry on information received. Presumably the information was given by or at the instants of Raghubar Singh, who immediately after the death of his natural son put forward a woman, sailing her by the name of Lilawati, as the widow of Bijaipal Singh. We do not think it safe to accept either the account-books or the entries in the Patwaris registers as reliable evidence in proof of the fast alleged by the plaintiff that she was married to Bijaipal Singh.

3. The learned Counsel for the plaintiff read to ns the evidence of seven witnesses whom he considered the most important and the most reliable in the case. They were the two Lilawatis, Bhawani Singh, Bhudec, Bam Chandra Singh, Hardeo Singh and the statement of Raghubar Singh made in the mutation proceeding. The two Lilawatis examined are daughters of two different persons. One is the daughter of Hansraj Singh and the other describes herself as the daughter of Bhawani Singh. It is the latter who alleges herself to be the widow of Bijaipal Singh and is the plaintiff in the ease. Mutmmtnat Lilawati the daughter of Hansraj Singh says that she is the widow of Raghubar Singh. The defence, on the other hand, say that she is the widow of Sher Singh, the younger brother of Raghubar Singh. The statement of the defence is borne out so far by the evidence of Musammat Lilawati the daughter of Hansraj, that she admits in her cross-examination that she was betrothed to Sher Singh but because the latter was ill she was married to his elder brother, Raghubar Singh, on the date on which she was to be married to Sher Singh. From other evidence in the case on behalf of the plaintiff it would appear that the illness which deprived Sher Singh of a wife was piles. She professes to be the step-mother of Bijaipal Singh. According to Raghubar Singh he married a second wife in 1902. Bijaipal Singh, according to the case for the plaintiff, was not married till 1903. If this witness is the step-mother of Bijaipal Singh, one would expect her to be present at the marriage of the latter. It must be remembered here that the adoptive parents of Bijaipal Singh had died long ago. His adoptive mother had died within five days of his adoption in 1895. The marriage of Bijaipal Singh admittedly took place at Kora. The witness said that she went to Kora two or three years after her marriage. She said that Raghubar Singh, Rafter having married her, left her at Barai where Sher Singh was living and was ill, and went away to Kora. The witness cannot give the name of any of the menial servants of Bijaipal Singh at Kora, though she professes to have lived at Kora with the present plaintiff in the houses of Bijaipal Singh for several years. She cannot mention the name of any woman in Kora, either a member of the family or a stranger. In one place she says that Bijaipal was married five or six years after her marriage. Now her marriage according to Raghubar Singh took place in 1902. Bijaipal Singh must, therefore, have been married, if her statement is correct, in 1907 or 1908, which is not the case of the plaintiff. And if the marriage took place in 1907 or 1908, the gauna must have taken place after the death of Bijaipal Singh. The defence wanted to have the witness examined by a lady doctor and asked her if she would submit to the examination. The witness not only refused but adhered to her refusal. The object of the defence, in getting the witness examined by a lady doctor, was to prove that the witness was really the widow of Sher Singh who had never given birth to any child, whereas the witness cLalmed to have given birth to three daughters by Raghubar Singh. It is not denied on behalf of the defence that the second widow of Raghubar Singh did give birth to three daughters, but they say that her name is Kalavati and that she is the plaintiff in the present case. However, as the witness declined to be examined by a lady doctor, she was not examined and the Court could not make an order as desired by the defence. It is clear from the observations, we have already made, that no reliance can be placed on the statement of this witness either as to the marriage of Bijaipal Singh or as to her statement that she is the widow of Raghubar Singh. On her own statement in the cross-examination it would appear that she is the widow of Sher Singh.

4. The next witness also calls herself Musammat Lilawati and cLalms to be the daughter of Bhawani Singh of Hartauli. The defence admit her to be the daughter of Bhawani Singh of Hartauli, but say that she is passing off under an assumed name, that she is really the elder daughter of Bhawani Singh, that her name is Kalavati, that she is the widow of Raghubar Singh and that she had given birth to three daughters by Raghubar Singh. One peculiar feature of the evidence of this witness is that she said only one sentence in her examination in chief, namely, I was married to Bijaipal Singh of Kora.' The learned Counsel for the plaintiff in the Court below did not think it worthwhile to examine her at length and in detail about the marriage and other circumstances, which would have gone to show that the witness was married to Bijaipal Singh and was his widow. She pronounced one sentence only and then was left to be cross examined by the defence. She says that she had an elder sister of the name of Kalavati who died when the witness was about five or six years old and that she, the witness, has no recollection of her elder sister. She further stated that she heard from her mother that her elder sister, that is Kalavati, died three years before the marriage of the witness. She was questioned by the defense whether she had not stated on a prior occasion that her sister had died three months after her (that is witness) marriage. The reply of the witness was that she did not understand the word 'after' (bad). A few minutes afterwards she herself used the word bad in the sense of after. Now she is the lady who was married in 1903 and whose gauna took place in 1905 or 1906 and who lived for at least two years in the house of Bijaipal Singh in Kora, and yet she is unable to give the name of any of the menial servants, except that of a maid servant called Handy, whether male or female, or of a Hakim or doctor who attended her husband during his fatal illness. She admits that her mother-in-law, i.e., Musammat Kalavati, gave birth to a child in Kora and yet the witness is unable to mention the name of the midwife who helped in the birth of the child. In the case of this witness also the defence asked the Court below to have her examined by a lady doctor. The object of the defence was to prove that the witness had given birth to three children and that she was much older than the alleged widow of Bijaipal Singh could possible be. The Court asked the witness whether she was willing to be examined by a lady doctor. She also indignantly deckled to have anything to do with a lady doctor and refused herself to be examined. It seems, however, that she was interviewed by a lady doctor of the name of Miss Hetherington at the house of her Counsel, Mr. Udebir Singh. Miss Hetherington baa been examined in this case. She says that she saw an Indian lady who declined to be examined thoroughly and who would only show her face, bands and teeth. Miss? Hetherington concluded from the appearance of the hands, face and teeth that the lady was from 27 to 30 years old. She also says that the hands of the lady were very coarse Musammat Lilawati No. 2 does not deny her interview with a lady doctor. We may, therefore, take it that Miss Hetherington examined Musammat Lilawati, the plaintiff in the present case. In fact it was cot denied on her behalf that she was not the woman who had been examined by Miss Hetherington in the house of Mr. Udebir Singh. It is true that the medical evidence cannot be considered to be conclusive evidence of age, nor it san be said with certainty, merely on the evidence of Miss Hetherington, that the age of the woman she saw was not less than 27, but taking all the circumstances into consideration and the evidence of the plaintiff herself, we are convinced that the plaintiff is not the woman she wants to make herself out to be, It is inconceivable that the widow of Bijaipal Singh should not be able to give the name of the menial servants of the house and other details concerning Bijaipal Singh's life. The manner in which she was examined in her examination in chief throws a very grave and considerable doubt on the value and worth of her evidence. Her reluctance to be examined properly by a lady doctor also is a factor in discrediting her evidence. She and the other Lilawati could have completely demolished the case for the defence by allowing themselves to be examined by a lady doctor, to prove that the plaintiff was a young woman of 22 or 23 only who had never given birth to a child and that the otter Lilawati was a woman considerably older who had given birth to several children. We find ourselves unable to accept the evidence of these two ladies in proof of the allegation that Bijipal Singh was mar-lied to the plaintiff, and we are led to this conclusion particularly by the comparison of their evidence with the statement of Raghubar Singh made in the mutation case, which has been produced and relied upon on behalf of the plaintiff. The comparison 1. Is to a perfect confection of different events and it would be useless for us to deal with them at length here. We need only mention one circumstance. Raghubar Singh, when he made his statement in HOB in the mutation case, stated that the elder sister of his daughter-in law was alive then. The plaintiff in the present ease says in her statement that her elder sister had died several years before her marriage will Bijaipal Singh, which took place in 1903. There is thus 8 years difference between the statement of the plaintiff and of Raghubar Singh.

5. Bhawani Singh was examined on behalf of the plaintiff and he stated that he was the father of the plaintiff, that her name was Lilawati, that she was married to Bijaipal Singh and that his elder daughter, Mutammat Kalavati, had died 15 or 16 years prior to the date upon which the witness was giving evidence, that is to say, his elder daughter had died some time in 1900 or 1901. This statement is at variance with the statement of the plaintiff in the witness box and the statement of Raghubar Singh which was made in 1908, when he said that Mutammat Kalavati was alive. Bhawani Singh makes a 'curious statement. He says that the ceremonies of sagai and fog an took place between his daughter, the present plaintiff, and Bijaipal Singh, but there is no witness to the ceremony of sagai or of lagan. He makes a further surprising statement that the gauna of his daughter with Bijaipal Singh was performed three years after the marriage, but there is no witness to the gauna. Reverting to his elder daughter, Kalavati, for a moment, he says that she was married to one Gulab Singh of Fazailpur, but the witness oat not say whether she bore any children or not. Gulab Singh was examined on behalf of the defence, who denied having married Musamrnat Kalavati or any daughter of Bhawani Singh. The evidence of this witness recorded in the mutation case is also put on the record as evidence in the present case. When the two statements are compared with each other, they are hopelessly confusing. The witness in his statement in the mutation case stated that he should not say if any Pundit had gone on behalf of Bijaipal Singh to officiate at the latter's marriage with the daughter of the witness, or that any religious formulae or mantras were reacted round the nuptial fire. Now is it conceivable that the father of a bride would not know whether the bride groom and his party had brought a Pundit with them to officiate at the marriage in son sanction with the Pundit for the bride or whether any religious formulas or mantras had been recited at the time of the marriage or at the nuptial fire? Nor is it credible that a man would be ignorant of the fact whether his daughter, having been married more than ten or twelve years ago, bore any children or not. This witness stated that though he was not a member of the Arya Samaj, yet he believed in and acted upon the principles of that association. When he was asked what were the principles of the Arya Samaj, he professed his ignorant. All that he seems to know of the Arya Samaj society is that one has to spend less on festive occasions as an Arya Samajist than he would have if he were an orthodox Hindu Presumably the witness was asked and made to say that he anted upon the principles of Arya Samaj in order to get rid of the objection on behalf of the defence as to the very small amount of expenditure on the marriage of such a man of position and wealth as Bijaipal Singh. The evidence of Bhawani Singh has really only to be read to be disbelieved.

6. The next witness is Bhudeo Brahman, who cLalms to be the family Pandit of Bijaipal Singh. He says that he solemnised the marriage nine or ten years prior to the date on which be was giving evidence, of, about 1906 or 1907, He goes on to say that the gauna ceremony of Bijaipal Singh was performed about four or five years after the marriage, that is in 1910 or 1912, Bijaipal Singh haying died in January 1908. This witness admits that Bijaipal Singh at the time of his marriage was living at Kora and reading in the Government Tahsil School. He also admits that he keep) patras but that he made no entry of the marriage of Bijaipal Singh in his patra. He makes a general statement that he does not enter the marriages that he solemnizes in his pair at, but he has not stated for what other purpose the patras are kept by him. He also admits that the Arya Samaj rules were not observed at the marriage of Bijaipal Singh, The defence produced a paper purporting to be the deposition of this witness made in a rent suit in order to, son trait him. It is dated the 18th of February 1911. in that deposition the witness seated that Bijaipal Singh, the adopted son of Thakur Sukhram Singh, had died unmarried and in fact was not even betrothed. He farther stated that Thakur Bhawani Singh of Hartauli had two daughters, the elder of whom called Musammat Kalavati, was married to Thakur Raghubar Singh, the natural father of Bijaipal Singh, and the younger daughter, tailed Gango, waa married to Thakur Shaitan Singh of Barai, district Each. The witness, when confronted with his statement, denied it. When pressed hard, he Lald that he was blind and could not see the writing. He had denied his signature in the earlier part of the statement, but when pressed hard, he took refuge in the statement that he could not see a single letter of the signature. He admitted that there was no other Pandit or Brahman of his name and of his parentage in the village of Kora, In view of the character of his statement and his conduct in the witness box in denying his former deposition, we are unable to attach any weight to the evidence of this witness. Bhudeo admits that the horoscope of Bijaipal Singh was compared with that of the bride, the., a comparison was made before the marriage. It is amusing to see how Bhawani Singh and other persons on behalf of the plaintiff strenuously evidency the comparison of any horoscope and in fact state that as the marriage was performed ostensibly according to the Arya Samaj rites, the orthodox rule of the comparison of horoscopes of the bridegroom and the bride was not observed. It has not been shown to us by any reliable evidence or any authoritative book on the subject that the Arya Samaj is have made an innovation in the case of marriage by ignoring the custom of the comparison of horoscopes of the intended bridegroom and bride. And even if that were so, Bhawani Singh and others are giving the lie to Bhudeo, who is a witness for the plaintiff and who cLalms to have solemnized the marriage of Bijaipal Singh. The most important witnesses to the ceremony of a marriage usually are the Brahmans or priests who officiate at the marriage and the immediate relatives. In the present case Bhudeo, who officiated at the marriage, Raghubar Singb, the natural father of Bijaipal Singh, and Bhawani Singh, the father of the bride, are the persons who, by their position and relationship, would be present at almost all the rites attending a Hindu marriage and would be the best witnesses to the marriage. On comparison of the statements of the three persons made at different times, the only conclusion that one can come to is that they are hopelessly at variance with each other on every possible point. In fact we find it impossible to reconcile the different statements of these three persons and deduce any reasonable theory from their evidence in support of the alleged marriage.

7. The next witness is Ram Chandra. He is a Zemindar and in fast the best witness as far as the social standing goes. He said that he was present at the marriage feast before the marriage procession went to the village of Hartauli for the purpose of solemnizing the marriage of Bijaipal Singh with Bhawani Singh's daughter. The witness partook of the feast and went back home. He said that he offered Rs. 2 as neota, which was not noted in the account books of the witness. It is hardly credible that the necta, if given by the witness, would not be entered in his account-books. The witness says that 40 or 50 persons only were present, but he cannot say whether any member of the community of Thakun was present at the time. It is strange that at the marriage of one of the principal Thakurs of the can, namely, of Bijaipal Singh, none of the important members of his community should be present. He gives the lie to Bhawani Singh and other witnesses, by saying that there was a dance at night after the feast. The evidence of this witness leaves upon us the impression that it is half-hearted and halting. The witness would not take the risk of saying positively that he was present at the time of the marriage of Bijaipal Singh with the plaintiff and saw the marriage solemnized. He would only go the length of saying that he was present at the feast, which was said to be the preparatory feast of the marriage of Bijaipal Singh and from which he went back home instead of going with the marriage party. He gives no reason for not going with the marriage party and he, being a member of the community would be expected to go to the bride's house.

7. The last witness is Hardeo Singh, who is a cultivator. He opened his statement by stating that Raghubar Singh was a resident of his village. The village of the witness is Mashkauli, which is in the district of Bulandshahr. Raghubar Singh, on the other band, stated at various times in court of Law that his original home was the village Barai in the district of Each and that after the adoption of his natural son into the family of Sukhram Singh and after the death of the adoptive mother, he, Raghubar Singh, went over to Kora to watch the interest of his son. The witness Hardec Singh said that when the marriage party arrived at Hartauli, he went over to that village from his house. He was asked if any of the members of the family of Sukhram Singh had gone with the marriage party. The witness replied, I have no knowledge.' He further admitted that he did not attend the marriage of any other daughter of Bhawani Singh as he was not on social terms with him, nor could he name any other occasion upon which he was invited to, or was present at, the marriage of any other member of Sukhram Singh's family. In fast his evidence does not take us beyond the bare statement that he was present at the marriage of Bijaipal Singh. He is unable to give any information or make any statement about anything else. We are not prepared to accept the evidence of Hurdeq Singh and hold that it proves the alleged marriage of Bijaipal Singh with the plaintiff.

8. As we have already observed in the earlier part of this judgment that the learned Counsel for the plaintiff read and discussed before us the evidence of his most important with asses and abstained from reading other, evidence which, in his opinion, was not so valuable and weighty as that of the witnesses we have already mentioned, it would serve no useful purpose if we were to discuss the rest of the evidence for the plaintiff and for the defense. The evidence of both sides has been criticized and dealt with carefully by the Judge of the lower Court. We are in agreement with him that, as far as the oral evidence goes, that for the plaintiff is quite unreliable and fails to prove the case for her. There are, however, one or two papers filed on behalf of the defence that we might with advantage refer to here. The School Registers of Kora have been put in evidencs on behalf of the defence for the months of April, May, June and July 1903. One of the allegations for the defence was that Bijaipal Singh was reading at the village school of Kora at the time of his alleged marriage. In order to meet this allegation, the witnesses for the plaintiff, or at least the majority of them, were made to say that Bijaipal Singh was reading at home and never went to school. Some of them, however, Bhudeo for example, admitted in an unguarded moment that Bijaipal Singh was reading at the village school of Kora. The oral evidence on behalf of the defense, besides the School Registers, is very strong indeed on the point. One of the witnesses for the defence is Mr. Stewart, who in 1903 was Assistant Collector of Aligarh and in his official opacity went to inspect the school at Kora. He has been examined in the case and he states that Bijaipal Singh was at the time of his inspection reading in the school at Kora. The boy Bijaipal Singh was pointed out to him specially as the Zemindar of the village and the owner of the building in which the school was located. Some of the Officials of the Education Department have also been examined for the defense, who say that Bijaipal Singh was reading in the school. The school master who was teaching the boys in 1903 is unfortunately dead. His death is proved by the witnesses for the defence. Now the registers of the school for four months show distinctly that Bijaipal Singh was reading in the school at that time. The attendance of all the boys in the school used to be noted in the registers, and the name of Bijaipal Singh finds a place in the registers of all the four months. The attendance registers used to be filled up by Rup Kishore, the teacher of the school who is dead. The entries in the registers have been proved by the defence by proving the initials or the signatures of Rup Kishore at different places of the registers, The entries of the register for the month of June 1903 completely demolish the case of the plaintiff. According to the latter, she was married to Bijaipal Singh between the llth and the 14th of June 1903. The marriage party, according to the evidence for the plaintiff, went from Kora to Hartauli and was there for three or four days, The bridegroom must, of course, have gone with the marriage party and his absence in that case would have been noted in the attendance register of the school. On reference to the June register we find that in the whole month of June except the holidays and there was no holiday between the 11th 14th of June 1903 Bijaipal Singh attended the school. We, therefore, agree with the Court below in holding that the plaintiff has failed to prove that she was married to Bijaipal Singh and is his widow.

9. The second point urged on behalf of the plaintiff is that there is no judgment in law in the present case, inasmuc has the judgment under appepal was written by Mr. Pyare Lal after he had sensed to be a Subordinate Judge. It appears that Mr. Pyare Lal was Of bloating Subordinate Judge at Aligarh when the case was argued before him. He reverted, it is said, immediately after the conclusion of the arguments in the case, and we are referred to the History of Gazetted fliers in support of the allegation of reversion of Mr. Pyare Lal, If it is contended that Mr. Pyare Lal reverted on the 22nd of December 1916, the day upon which the arguments were concluded, it does not follow that he had not made up his mind what to do in the case. If he wrote the judgment after he sensed to be a Subordinate Judge, when he had reverted to his substantive appointment of a Munsif, that would not vitiate the judgment in any way, A similar point was raised in the case of Basant Bihari v. Secretary of State for India in Council 19 Ind. Cas. 785 : 35 A. 368 : 11 A.L.J. 411. It was held in that case that a Judge may pronounce a judgment written but not pronounced by his predecessor-in-office, and this notwithstanding that at the time the judgment was mitten the Judge who wrote it had ceased to be the Judge of the Court in which the case was tried.' The same view was taken in a Full Bench case by the Calcutta High Court satyendra Nath Ray chanihuri v. Kastura Kumari Ghatwalin 35 C. 756 : 12 C.W.N. 682 (F.W.) : 7 C.L.J. 666 : 4 M.L.T. 33 J. In view of these two oases the sentential for the plaintiff appellant is untenable.

10. We, therefore, dismiss the appeal with costs, including fees in this Court on the higher scale. Only one set of fees is allowed against the plaintiff.


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