1. The deft, is the applt. in this second appeal. The appeal arises out of a suit brought by the pltf. for recovery of two plots of lands described in the plaint schedule from the possession of the deft. These two items of land have been purchased in the name of the son of the pltf. under two sale deeds, Exs. B & C, dated 4-10-30 & 4-2-35 respectively. The pltf.'s son died in the year 1942 prior to the suit without leaving any issue. The.. deft, claims to be in possession as being his married, wife. The pltf.'s contention is that the deft, is not the legally married wife of his son & that in any case the suit properties though standing in the name of the son were the joint family properties & that his son died undivided & that therefore the deft, had no title to the property. The Cts. below have found that the pltf. & his deceased son were undivided & that the properties covered in Exs. B & C, though standing in the name of the son, were joint family properties. They also held that the; deft, is not proved to be the married wife of the deceased son of the pltf. On these findings both the Cts. below have decreed the pltf.'s suit.
2. On the state of the law, as it stood on the date of the institution of the suit, namely, 22-12-43, the pltf. was entitled to a decree on the finding that the suit properties were the joint family properties & that the pltf.'s son died undivided from the pltf. There has, however, been a change in the law since, with retrospective operation, which has not been brought to the notice of the Cts. below.
3. The suit property is situated in Koraput district which is a partially excluded area. The Hindu Women's Rights to Property Act of 1937 (Central Act xviii  of 1937) as amended in 1938 has been extended to the partially excluded areas by notin No. 8306-J , dated 11-12-38, published in the Orissa Gazette dated 23-12 38 at P. 897. After the decision of the F. 0. holding that this Act is ultra vires of the Central Legislature, in so far as it relates to agricultural land, the Provincial Legislature has enacted the Orissa Hindu Women's Rights to Property Act (Extension to Agricultural Land in Orissa) of 1944 (Orissa Act V  of 1944) enacting that the Hindu Women's Rights to Property Act shall apply also to agricutlural land & it is further enacted that the extension is to be with retrospective operation. This Orissa Act has been extended] to all the partially excluded areas including Koraput Dist. by notin No. 3401 J., dated 9-9-44, published in Orissa Gazette dated l5-9.1914 at p. 228.
4. There can be no doubt, therefore, that if the deft, is the married wife of the pltf.'s son, she is entitled to her husband's share in the joint family property including the suit property.
5. In this view as to the change of law, the outstanding crucial question in the case is whether the deft, is the married wife of the pltf.'s son. Though both the Cts. below found against the deft. on this question as a fact, it appears to me that this question has not received proper judicial attention, in view of the other findings against her which were in the then state of law sufficient to entitle the pltf. to a decree. Two issues relevant to this point were raised at the trial, viz.,
Issue 3, whether the deft, is the legally married wife or a concubine of late Bbagaban Biswoi (pltf.'s son), Issue 4, whether there is any custom in the caste of the parties enabling a concubine to succeed & if so, is such custom legal and valid.
The trial Ct. found on issue (3) as follows :
'I hare therefore no reason to disbelieve the pltf.' witnesses that she was kept by the pltl.'s Bon.'
On issue(4) he finds :
'Under the circumstances, she (deft, can, in my opinion, be taken to have occupied the same position as a married wife & to have got the same right to the property of her deceased husband in the absence of any custom or authority to the contrary.'
6. The appellate Ct. finds as follows :
'As appear from the evidence of the caste people, she was the concubine of his son & no marriage ceremony was gone through to celebrate the marriage between his son & the deft., even though she was admitted to the caste after purification & caste dinner.'
He also finds that
'there was no tangible evidence on record to support the finding of the learned Munsif that the deft, must be taken to have occupied the position of a married wife so as to be entitled to inherit the property left by her husband.'
7. The suggestion that though a concubine, she was, by custom, entitled to inherit to her husband's property on account of her being treated as a married wife needs no serious consideration, because, as held by the learned Subordinate Judge on appeal, there was absolutely no evidence in support of this & counsel for the applt has not attempted to put his case on that footing. As regards the finding of fact about the married status of the deft, the Ota. below have come to halting findings & do not appear to have appraised the evidence from the correct legal standpoint. They have not realised that most of the evidence is in-admissible. The most important oircumstance in the case on this matter which the trial Ct. has not noticed & which the appellate Ct. has not properly appraised, though it has noticed it is the fact that in the document, Ex. D dated 18-7-41, executed by the pltf'a. son in favour of the deft., he makes a categorical statement that she is his married wife. Ex. d purports to be a deed of gift of the suit plots, but being unregistered is not operative. It is howover admissible in evidence with reference to the collateral recitals therein. The plt's. son, the exeroutant of the document, being dead, his statement that the deft, is his legally married wife, is clearly admissible Under Section 82, cl (5), Evidence Act. It is not suggested that there was any dispute at the time with reference to which the pltf.'s son made a tendentious statement in favour of the deft. This document appears to have been put in evidence after the pltf. examination was over, but the pltf. could have been recalled to speak to any circumstance relating to the document which may weaken the value to be attached to these recitals in the document. But that has not been done. All that is suggested on the side of the resp. is that this document is not genuine. But we cannot accept this suggestion. It has been formally proved on the side of the deft, by an attestor thereto O. D. W. 3 & it appears from the exhibit-list that this has been marked without objection. The recital in the document, ex. d made by the pltf's. son that the deft. is his married wife is, in my opinion, Sufficient to throw the burden of proof entirely on the pltf. to show that the deft, is not the married wife of this son. It is true that the deft, has no other evidence to support her case apart from this recital & her own evidence. No doubt she, appears to have said as D. W l 'Bhagaban kept me as his wife.' Too mush stress, however, cannot be laid on the use of the word 'kept' in the deposition, remembering that she must have given her evidence in Oriya, She has categorically stated in her written statement that she was the married wife & rebutted the pltfs. averment that she was his concubine. It cannot be easily assumed that she totally gave up that case in her evidence. The question, therefore, is whether there is sufficient evidence on the side of the pltf. to rebut the presumption in favour of the deft. The pltf & his witnesses P ws. 2 to 6, in effect, did nothing more than to assert that she was the concubine of Bhagaban, of these only P. ws. 4 & 5 belong to the same caste as of the parties, namely, Sudhi caste but belong to villages different from the pltf's. village. Neither they, nor any of the other witnesses are shown to have had any special means of knowledge. Evidence of this kind is nothing more than mere opinion which, to be admissible, must be the opinion of persons having special means of knowledge & expressed by conduct according to Schedule 0, Evidence Act. Further it is doubtful whether under that section, evidence of non-existence of relationship is admissible. (See the instructive judgment in Chandulal v. Bibi Rhatemonnessa, A. I. R. (30) 1943 Cal. 76 at p. 80 (Col. 2): (I. L. R. (1942) 2 Cal. 299)). Evidence of Concubinage is evidence of non-existence of relationship. In any case the opinion must be expressed in conduct. In this case, as found by both the Cts. below, the conduct if any is the other way. The pltf. & his witnesses admit that the deft, who belongs to the Sundhi caste has been admitted to the caste after purification ceremony. The pltf. also admits that she cooks in his family & in the feasts & even in the funeral feast she sat in the same row & ate. The evidence adduced, therefore, is wholly insufficient to displace the presumption which arises in her favour under ex. d. The pltf's. witness have given evidence that the deft, before she came to live with the pltf's son was living in concubinage with some persons & that she was at one time also the married wife of one Krishno. Her previous immoral character, if any, has no bearing in the case except as improbablising that the husband would not have taken her in marriage. But that cannot rebut the proof of marriage afforded by the husband's statement, Ex D. If it was positively proved that when she was entertained by the pltf'a. son, her relationship with him started in concubinage, the position might have been different as found in the cases in Mt. Jarintool Butool v. Mt. Hoseinee Begum, 11 M. I. A. 194 : (10 W. R. 10 P. C.) & Ghazanfar Alt Khan v. Mt. Raniz Fatima, 32 all. 845 : (6 I. C. 674 P. C.) & other cases. The Suggestions that she was at one time the married wife of one Krisho might also if proved, have gone against the deft. If it appeared that she continued to be the married wife of Krishno by the time when her relationship with Bhagaban started, then her alleged marriage would have been .invalid. But it appears from the evidence on the pltf'a side itself that she was driven away by Krishno within about three months of her marriage with him & also that Krishno had died since (prior to her coming under the protection of Bhagaban, see evidence of P. W.5). It is not shown that; in this caste the remarriage of a divorced woman or of a widow is prohibited. The deft, being admittedly of the same caste no legal bar to the marriage has been made out. The appellate Ct.. appears to have assumed that the evidence shows that no ceremony to celebrate the marriage was gone through. There is, however, excepting the vague statements of the witnesses that she was a concubine, which are really inadmissible, no positive evidence of competent persons that no ceremony took place at all or what were the customary ceremonies for marriage in the caste. The marriage itself, if any, has taken place, according to the deft, about 30 years ago. In such oases & in such circumstances there is a strong presumption in favour of a legal & valid marriage & of the performance of the requisite ceremonies, as has been laid down in a number of cases, starting from Ramamani Animal v. Kulnnthai Natohear, 14 I. A. 846 : (2 Sar. 736). (See also Manjilal v. Ghandrabati, 88 cal 700 : (38 I. A. 122 P. C.); Bipin Behari v. Atul Krishna, 15 I. C. 828(2) (Cal.); Sastry Velaider Aronegary v. Sembecutty Vaigalie, (1881) 6 A. C. 365: (50 L. J. P. C. 28) & Inder Singh v. Thakar Singh, 2 Lah. 207: (A. I. R. (8) 1921 Lah, 20)). It isnodoubt true as pointed out in Ma Ween Di v. Ma Kin, 35 Cal. 232 : (4 Beng. L. R. 176), by the P. C. that the presumption in favour of lawful marriage is not to be lightly applied to situations where sex relationships are proved to be loose & the appellation 'wife' is indiscriminately used. But it is also equally the law as pointed out by P. c. in Mohabbat Ali Khan v. Mahomtd Ibrahim Khan, A.I.R. (16) 1929 P. C. 135: (10 Lah. 725) that mere evidence of what may be called class or clan, proclivity to concubinage is not admissible in evidence & cannot be used to rebut the presumption of marriage. In the present case there is nothing more than some loose evidence that persons of this caste take women as concubines & treat them as wives. This is the sort of evidence which is inadmissible according to the P. C. case in Mohabbat Ali Khan v. Mahomed Ibrahim Khan, A.I.R. (16) 1929 P. C., P. 135: (10 Lah. 725). There is in this case nothing more than vague evidence that persons of this caste keep concubines & that the deft, lives in concubinage, which is as already pointed out inadmissible or at any rate wholly insufficient to dispose the presumption afforded by the recital in her favour in Ex. D. It must, therefore, be found in disagreement with the Cts. below that the deft, is the married wife of the pltf's. deceased son, Bhagaban.
8. It, therefore, follows that the pltf. cannot treat the deft, as a trespasser & obtain ejectment against her in respect of she suit properties. his remedy, if any, would to be bring suit for partition of the entire family properties including the suit properties & recover from her such of the properties as may not be allotted to her share In the result, therefore, the appeal will be allowed with Costs& the decrees of the lower Cts. set aside & the suit dismissed. So far as the costs of the Cts. below are concerned, both the parties will bear their respective, costs.
9. I agree.