S.K. Ray, J.
1. This second appeal is by the plaintiff from the reversing decision of the lower appellate court. The plaintiff's suit for declaration of his title and for partition is based on the following allegations :
One Kurup Jena had 0.97 decimals of land of which 0.73 decimals are homestead. Defendant 1 is his daughter, and defendant 2 is his wife in 'Thain' form. Kurup gifted 0.24 decimals out of his lands to defendant 2 under Ext. 2, deed of gift, dated 9-4-58. This was with the consent of defendant 1. Kurup died thereafter. Balance 0.73 decimals of Kurup were inherited by defendants 1 and 2 as simultaneous heirs having equal shares therein. So defendant 2 became owner of sixty decimals and five kadis, 24 decimals being under the deed of gift, and 35 decimals and five kadis by inheritance. Defendant 2 sold 0.58 decimals out of it to plaintiff by Ext. 1, dated 7-1-59. These 0.58 decimals comprised 0.11 decimals of homestead. The plaintiff came to court for partitioning his 0-58 decimals against defendants 1 and 2. Defendant 2 remained ex parte. The suit was contested only by defendant 1.
2. Defendant 1 denies that Kurup gifted any property to defendant 2, and that there was no relationship of husband and wife between Kurup and defendant 2. Her case is that defendant 2 was a concubine of Kurup. In the alternative she prays for relief under Section 4 of the Partition Act.
3. The trial court found that the gift was valid and that there was marriage between defendant 2 and Kurup. He, therefore, decreed the plaintiff's suit for declaration of title and partition but he also held that defendant 1 is entitled tothe relief under Section 4 of the Partition Act.
4. The lower appellate court held that there was no valid gift because it was affected by fraud. He also negatived the marriage of defendant 2 with Kurup. As a consequence of these findings he held that defendant 2 conveyed no title to the plaintiff under her sale-deed, Ext. 1, and dismissed the suit.
5. The first point raised is that the lower appellate court's finding that there was no marriage between defendant 2 and Kurup cannot be upheld for the following reasons, viz., (a) he has failed to use the legal presumption in favour of marriage; (b) He has totally omitted to consider the evidence of P.W. 1 who is a witness to the marriage. This omission amounts to non-consideration of essential evidence; and (c) He has discarded the testimony of P.W. 2 who is a caste-Behera on two untenable grounds, that is to say, this P.W. 2 has kept a concubine, and that he was not summoned.
The second point urged by learned counsel for the appellant is that the finding that the gift is affected by fraud is unsustainable in law, because in absence of particulars of fraud being pleaded no evidence of fraud should have been allowed, and if allowed should not have been considered. The ground for rendering a finding that the gift was affected by fraud is that the donor was suffering from cancer at the time. There is no evidence of cancer except the evidence of the Sub-Registrar.
5A. I will now consider the points seriatim. It has been laid down by the Privy Council in the case of Mohabbat Ali Khan v. Mohammad Ibrahim Khan, AIR 3929 PC 135, that the law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years.
The Supreme Court also has said to the same effect in the case of Golak Chand v. Parvin Kumari, AIR 1952 SC 231. It has been said there :--
'Continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them.'
There is evidence on behalf of the defendants that defendant 2 was in continuous exclusive keeping of Kurup. This evidence gives rise to the legal presumption referred to in the two aforesaid decisions though the defence witness who speaks of such living of defendant 2 with Kurup says it was mere concubinage. It is clearfrom the judgment of the lower appellate court that no weight has been given to this presumption.
Though while discussing the question of issue of marriage in para 3 of his judgment, the lower appellate court has merely recited that the plaintiff examined P.W. 1 on the question of marriage. It does not appear from his judgment thereafter that he either read his testimony or analysed or, discarded it for any good reason. His evidence seems to have slipped from his mind altogether. P.W. 1 has categorically spoken about the marriage of defendant 1 with Kurup in Thine form. His testimony is, therefore, on a vital issue in this case. Non-consideration of such essential evidence will make the finding on the issue of marriage vulnerable especially when his finding runs counter to the finding of the trial court on the point.
P.W. 2 is a caste-Behera examined by the plaintiff in proof of marriage. Caste-Behera are important witnesses in caste-marriages, because, normally without them no marriage takes place. To discard the testimony of such a witness strong grounds must be set forth. The lower appellate court has rejected his testimony because he has kept a concubine and because he was not summoned. None of these two reasons appears to me a valid reason for dismissing his testimony as unworthy of credit. It is well-known that a party may interview his own witness before he decides to summon him, and that he may produce his own witness directly in Court, and it is not incumbent upon him to issue process through Court. It is only where a party is desirous of ensuring attendance of a witness that he adopts the procedure of issuing summons through Court as a measure of safety, not that that is a step which must be taken as a measure for establish-ing the veracity of that witness. Rejection of P.W. 2's testimony on these two grounds is therefore wrong.
6. For the aforesaid reasons, I am satisfied that the finding on the issue of marriage reached by the lower appellate Court cannot be upheld. That finding must be set aside, and he must be asked to reassess the evidence keeping in mind the legal presumption referred to above and then to render his finding on the issue.
7. It is true that no particulars of fraud were pleaded by the defendant. The rule is that where particulars of fraud are not pleaded, no evidence should be allowed on those particulars, and if any such evidence has unwittingly been introduced that must be discarded as inadmissible evidence. The finding of fraud, based on such inadmissible evidence, must be held to be bad. There is another aspect to this matter. The fraud, according to the lower appellate court, comprises of the fact that the donor at the time of gift was suffering from cancer, and would obviously be not in a fit state of mind and body, and would thus be an easy prey to fraudulent activities on behalf of the defendant 2. There is no independent evidence of cancer except the endorsement of the Sub-Registrar at the back of the deed of gift, Ext. 2. Indeed, there is an endorsement by the Sub-Registrar that the executant Kurup was suffering from cancer. I am surprised that such an endorsement should be taken as a substantive proof of cancer. First of all, it is hearsay evidence, and secondly, the opinion of the Sub-Registrar that the discease from which Kurup was suffering at the time was cancer being of a layman is of no value at all. The finding of fraud being based on such a piece of hearsay, and thus inadmissible evidence obviously cannot be sustained.
In my view both the points raised by learned counsel for the appellant have substance.
8. In the result, I set aside the judgment and decree of the lower appellate court and send the case back to him. He shall rehear the parties and assess the evidence in correct legal perspective, and dispose of the appeal in accordance with law, and in the light of observations made above. The appeal is, therefore, allowed and remanded. Costs will abide the result.