1. The sole question for decision in the Regular Second Appeal filed by the plaintiffs is whether Shrimati Balbir Kaur defendant-respondent No. 1 had been lawfully married to Attra deceased; a proclaimed offender who died in an encounter with the police on 12-4-1961(vide entry in the register of deaths Exhibit P-4) and whether Balbir Kaur's son, Joginder Singh defendant-respondent No. 2 who was born more than seven months after Attra's death and had been conceived during the wedlock.
2. Shrimathi Balbir Kaur was previously married to another fugitive from law, namely, Harnam Singh and the averment made by the plaintiff-appellants in paragraph 2 of their plaint that he had also been killed in a police encounter had not been controverted by the respondents in their written statement. The date of Harnam Singh's death is, however, not ascertainable from any material on record and it not known as to what was the interval of time between the two police encounters and whether the period was long enough for Shrimati Balbir Kaur to have contracted another marriage and to have lived with the second fugitive from law so very openly and peacefully and that the living together could have received enough publicity for every one to have treated the two as husband and wife, or that the disputed marriage between Balbir Kaur and Attra could be taken to have proved by long cohabitation as husband and wife. The trial Court had decreed the suit filed by the plaintiff-appellants for declaration of title or in the alternative for possession of Attra's land on the finding that Balbir Kaur had failed to prove her marriage with the deceased and that plaintiff No. 1 as the sister and plaintiffs Nos. 2 to 8 as the children of a pre-deceased sister of Attra were entitled to succeed to his property. The lower appellate Court had, however, set aside the judgment and decree of the trial Court on an appeal filed by the defendant-respondents and had dismissed the plaintiff appellants' suit. Reliance had mainly been placed by the lower appellate court on an entry in an illiterate Chowkidar's register about the birth of Joginder Sing who was described in that entry as the son of Attra Singh.
3. The trial Court's view that the birth entry in the illiterate Chowkidar's register, who had asked some unknown person to make it, was not admissible in evidence is supported by a ruling of the Supreme Court in Brij Mohan Singh v. Priya Brat Narain Sinha AIR 1965 Supreme Court 282. Their Lordships observed that the High Court had been right in that case in holding that the entry made in an official record maintained by an illiterate Chowkidar to some on else's request does not come within Section 35 of the Indian Evidence Act. The entry was not shown to be admissible under any other provision of that Act. The entry was, therefore, left out of consideration even on the question of the date of birth.
4. The Chowkidar has no doubt been examined as a witness by the defendant-respondents but he admittedly was not present at the time of the alleged marriage between Balbir Kaur and Attar Singh and could not, therefore, be expected to have any personal knowledge about the marriage. According to the entry in the Chowkidar's register, one Shrimati Umra nurse-dai had attended to the delivery of the child and the Sarpanch Beant Singh had signed the entry. According to the Chowkidar one Sohan Singh teacher had scribed the entry in the register. All these persons were in a better position to prove the entry but no explanation has been given why they could not be examined as witness. The original entry in the register mentions in column of remarks (Kafiat) that the convalescing lady (Zacha) Balbir Kaur now has two sons alive but this note was purposely omitted in the certified copy of the entry Exhibit D-1 which had been produced in evidence on behalf of the respondents. The lady had gone so far as to deny in the witness box that she had any living son from her previous husband even though the birth certificate Exhibit P-7 is there to prove that she had borne her previous husband, Harnam Singh, a son on 23-2-1959. The existence of this son of Balbir Kaur from her earlier marriage is also admitted by her witnesses. Another significant fact is that even after the birth of Joginder Singh respondent No. 2, the appellant has been bearing other children. She had a male child who was 8-9 months old when she appeared as a witness in the trial Court on 15-12-1996. Balbir Kaur is not prepared to give us the name of the child's father even if it is known to her. There is no evidence on record that this child's father even if it is known to her. There is no evidence on record that this child was born in lawful wedlock. All this may go to support the averment in paragraph 2 of the plaint that Balbir Kaur was a woman of ill repute (Fahishah Aurat) who was being passed on as a chattel from hand to hand by criminals of the worst type.
5. Balbir Kaur claims to have gone through a marriage ceremony in chadar andazi form with Attra deceased in a religious institution known as 'Sant Ghat'. Even though Shri Aggarwal, the learned counsel for the respondents, objects to the institution being described as a Gurdwara, the evidence is that the religious head of the institution named Santa Singh who was described to have presided over the marriage ceremony was known as a Mahant. No reason is given why the Mahant could not be examined as a witness in the case. Religious institutions in which such marriage ceremonies are conducted or solemnised generally maintain a register of marriages. If Mahant Santa Singh is no longer there, the successor Mahant could have been summoned to prove whether any such register of marriages performed in the institution is being maintained and whether there is any entry about the disputed marriage in that register. Chanan Singh D.W. 4 is the only witness who claims to have been present at the time of the said marriage. He is not a relation of any of the parties to the marriage. He admits that no relatives had been called to the ceremony and this would be naturally so because Attra had been absconding for more than a year before his death.
6. Attra died on 12-4-1961 vide death entry copy Exhibit P-4. The police constable who reported the death gave murder (Katal) as a reason and the duration of the ailment as one hour. Attra's relatives do not appear to have come to know about his death in the police encounter for a number of years. The mutation of succession Exhibit D-2 was entered by the Patwari in 1964 when the Tehsildar was on a round to verify the correctness of the entries in the Jamabandi. Somebody appears to have reported that Attra was no longer alive. Attra's sisters had been married in other villages and had settled down there. The mutation order Exhibit D-2 was attested in favour notice to Attra's sisters or their children. The present suit was filed by them within a year of the attestation of the mutation order in favour of the respondents. It had been alleged in the plaint that possession of land had not so far been delivered to the respondents but it was on the basis of the attestation of the mutation entry that the trial Court's decree in plaintiff-appellant's favour was for the alternative relief of possession and not for declaration of title, simplicitier.
The lower appellate Court had not doubt accepted the appeal filed by the defendants by disturbing finding of fact. The lower appellate Court had, however, taken into consideration an inadmissible piece of evidence, namely, the birth entry in the illiterate Chowkidar's register which had not been made by him in regular course of business. The learned lower appellate court ignored a number of material circumstances. No date of the karewa marriage between Balbir Kaur and Attar Sing had been given and the period of time during which they could possibly have lived together had not been kept in mind. The fact that Attra was an absconder and that he could not possibly have openly lived together with Balbir Kaur as her husband was not kept in mind. The non-production of the scribe the Nurse (Dai), the attesting witness of Joginder Singh's birth and the Mahant who is said to have solemnised the marriage were material circumstances from which proper inferences should have been drawn by the lower appellate Court. It is due to all these errors of law and misappraisement of evidence that I have to interfere in second appeal on a finding of fact.
To my mind, Balbir Kaur's marriage with Attar Singh has not been satisfactorily proved and there is nothing to suggest that Joginder Singh was born or conceived during the continuance of that marriage. The birth of two out of three male children of Balbir Kaur is a mystery about which she herself tries to suppress material information. There is no satisfactory evidence on record to show that Balbir Kaur and Attar Singh had lived together as husband and wife for an appreciable length of time or that they were being treated as such by the world at large. The circumstances under which the mutation order came to be entered and attested in her favour and that of her son more than three years after the death is also a mystery. The trial Court who had the advantage of observing the demeanour of the witness while they were being examined in Court was in a better position to appraise their evidence. The trial Court had not been impressed by the mere ipse dixit of one or two witnesses of doubtful veracity who claim to have been present at the time of the marriage. The birth entry in the Chowkidar's register who had not made it was wrongly treated as admissible evidence by the lower appellate Court. For all these reasons, the judgment and decree of the lower appellate Court cannot be sustained.
7. I, therefore accept the appeal with costs throughout and restore the judgment and decree of the trial Court.
8. Appeal allowed.