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Mt. Basanti Vs. Pholo - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 15 of 1949
Reported inAIR1955HP37
ActsEvidence Act, 1872 - Sections 65 and 114
AppellantMt. Basanti
Advocates: D.R. Chowdhary, Adv.
DispositionAppeal allowed
.....evidence produced by b did not disclose that she had been married to m in 'krewa' form by performance of ceremony known as 'nath chadar' - b lived and cohabited with m so presumption should be drawn that she cohabited with m - as per circumstances inference can be drawn that daughter born to m was result of his union with b - mutation entry valuable circumstance corroborating presumption in favour of b - presumption can be drawn in favour of marriage strengthened by certain factors - courts below have not properly appreciated nature and scope of presumption that could be drawn in favour of marriage - presumption ought to have been drawn in favour of b when legal presumption in her favour stands corroborated by other facts and evidence produced by plaintiff hardly sufficient to rebut it -..........decree of the sub judge of bilaspur in a suit for possession of the landed property left by one munshi. munshi died issueless in 1997 sant, and thereupon, mt. basanti (who is the appellant in this court) took possession of his landed property. thereupon, munshi's nephew pholo (the plaintiff-respondent) filed a suit against her, seeking possession of munshi's properties on the ground that mt. basanti was not the widow of munshi, but only his concubine, and therefore she was not entitled to his properties. the suit was resisted by mt. basanti, who contended, that she had been married to munshi in 'krewa' form, and as such, was entitled to remain in possession of his properties. 2. the suit was decreed by the trial court, and its decision was upheld by the district judge of bilaspur. mt......

Ramabhadran, J.C.

1. This is defendant's second appeal against the decision of the learned District Judge, Bilaspmy upholding the judgment and the decree of the Sub Judge of Bilaspur in a suit for possession of the landed property left by one Munshi. Munshi died issueless in 1997 Sant, and thereupon, Mt. Basanti (who is the appellant in this Court) took possession of his landed property. Thereupon, Munshi's nephew Pholo (the plaintiff-respondent) filed a suit against her, seeking possession of Munshi's properties on the ground that Mt. Basanti was not the widow of Munshi, but only his concubine, and therefore she was not entitled to his properties. The suit was resisted by Mt. Basanti, who contended, that she had been married to Munshi in 'Krewa' form, and as such, was entitled to remain in possession of his properties.

2. The suit was decreed by the trial Court, and its decision was upheld by the District Judge of Bilaspur. Mt. Basanti then came in second appeal to this Court. My learned predecessor dismissed the second appeal on 1-6-51. On 11-12-5.2, however, my learned predecessor reviewed and set aside his earlier order (dismissing the appeal), and directed that the second appeal be reheard. The respondent filed an application, seeking a certificate for appeal to the Supreme Court against the order granting the review. That petition was rejected by me oh 26-12-53. Thereupon, certain preliminary objections to the competency of the present second appeal were taken by the respondent. These were overruled by this Court on 30-3-54. During the last circuit to Bilaspur, I heard the arguments of the learned Counsel for the parties on the merits of the appeal, and I now proceed to deliver judgment.

3. "The appeal turns on the question whether Mt. Basanti was the wife of Munshi or merely his concubine. Both the Courts below came to the conclusion that she was only a concubine. In coming to this conclusion, they expressed their view that the evidence produced by Mt. Basanti did not disclose that she had been married to Munshi in the 'Krewa' form, by the performance of the ceremony, konwn as 'Nath chadar'.

4. The learned Counsel for the appellant argued that the findings of the Courts below are against the weight of the evidence on the record. He further urged that since Mt. Basanti had lived and cohabited with Munshi from 1984 to 1997 Sam., a presumption should be drawn that she was Munshi's wife, and not merely his concubine. The learned Counsel for the respondent, on the other hand, argued that the concurrent findings" of the Courts below should not be lightly disturbed, and in any case the presumption in favour of marriage is rebuttable. Authorities have been cited on both sides.

5. As far as the oral evidence is concerned, there does riot appear to be much to choose between the two sets. The plaintiff examined 13 witnesses and also appeared in the witness box. The gist of their statements is to the effect that Mt. Basanti was not the wife of Munshi, no 'Nath Chadar' was performed, she was merely his concubine, and she used to visit Munshi's house off and on. The learned Counsel for the appellant urged that the plaintiff's witnesses were not disinterested; for instance, Tulsi (P. W. 1) admitted in cross-examination that Mt. Basanti had once sued him, and further that the plaintiff was married in his 'Baradarf. Again Kirpa (P. W. 3) would have us believe that Basanti came to Munshi's house for the first time 4 or 5 years prior to his statement. (He gave his statement on 18-9-1999 Samvat).

It is significant that other witnesses produced by the plaintiff e. g. Shiama,. Hiro, and Lachho admitted in cross-examination that Mt. Basanti came to Munshi's house, 8 or 9 years previously. The plaintiff himself conceded that Mt. Basanti used to visit Munshi for 10 or 11 years. Kirpa, therefore, does not appear to be a reliable witness. Lachho (P. W. 6) was unable to state if a daughter was born to Munshi after Mt. Basanti came to his house. From the copy of the birth entry dated 12th Jeth 11989 Sam., paper 21 of the trial Court's record, it appears prima facie, that a daughter was born to Munshi then. The respondent, no doubt, contends that the Munshi referred to in this entry is some one else. I shall deal with this later on.

Hiro, son of Lalo, (P. W. 7) is not an independent witness, because, admittedly, Pholo plaintiff is his son-in-law. Khazana, son of Achhru (P. W. 9), admittedly, was sent for by the police, at the instance of Mt. Basanti, and therefore cannot be treated as disinterested. Sudama (P. W. 10), was unable to state if a daughter was born to Munshi, although, admittedly, his house adjoins to that of Munshi. The same remarks applied to Chuhru (P. W. 11). Neither of them, therefore, can be regarded as independent. Banda (P. W. 13) is the plaintiff's father-in-law's brother, and his statement, therefore, must be liberally discounted. Coming to the plaintiff's statement, naturally, he is an interest- ed party. There are certain other circumstances connected with the plaintiff which I shall discuss, after dealing with the oral evidence.

6. Coming to the witnesses produced by the defendant as to the performance of 'Chadar Andazi' Khazana, son of Gharka (D. W. 2) admitted that none from the village was present at the time of the alleged ceremony. Shama (D. W. 3), while stating that 5 or 10 persons were present, was unable to say who acted as priest, cook and waterman oa the occasion. Jodhu (D. W.' 5) admitted that the plaintiff had impounded his son's cattle. Similarly Sadhu (D. W. 8) could not say who was the cook employed on that occasion. Mt. Basanti, who appeared as a witness, was as much interested in the outcome of the case, as Pholo plaintiff.

7. To sum up, therefore, as far as the oral testimony on the point of the performance of 'Chadar Andazi' is concerned, as already stated, there is little to choose between the two sets of the witnesses.

8. At the same time, as the learned Counsel for the appellant has pointed out, there are certain strong circumstances in favour of the appellant which merit serious consideration. These circumstances are:

(a) The fact that Mt. Basanti had lived and cohabited with Munshi from 1984 to 1997 Sam. As was held by the High Court of Madhya Bharat in--'Bhadursingh Dalipsingh v. Kartarsingh', AIR 1950 Madh B. 1 (A):

"A connection, commencing in adultery, may, on ceasing to be adulterous, become matrimonial and may be evidenced By habit and repute, the parties being at liberty to intermarry."

"The presumption can be rebutted by showing that the conduct of the parties was inconsistent with relation of husband and wife and can be repelled only by the evidence of the clearest character, for the presumption of law is not to be lightly repelled and it is not to be shaken off by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive."

9. In 'Gokal Chand v. Parvin Kumari', AIR 1952 SC 231 (B), their Lordships pointed out that:

"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 of marriage. But 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."

10. In 'Chandu Lal v. Bibi Khatemonnessa', AIR 1943 Cal 76 (C), a Division Bench of the Calcutta High Court observed that:

'Where the parties constantly, openly and continuously have lived and cohabited together for several years and had several children and were regarded and recognised as man and wife by their relations and friends, these facts, in the absence of countervailing circumstances, afford clear and conclusive evidence of marriage, under Section 114."

11. In an earlier ruling to this Court reported In--'Thunthi v. Dhani Ram', AIR 1953 Him. Pra. 66 (D), my learned predecessor pointed out that;

"The presumption of marriage arising from long and continuous cohabitation between a man and a woman may be rebutted by proving circumstances constituting an insurmountable obstacle to marriage. Where the alleged insurmountable obstacle was that B'S marriage in the Jhanjharara form had not been performed with Z. Held that it was impliedly conceded that B, though a widow was entitled to remarry according to local custom and since according to Hindu Law no religious ceremonies are necessary in the case of remarriage of a widow, it was incumbent upon the party alleging the obstacle to prove not only that B's marriage in the Jhanjharara form was not in fact performed with Z, but also that performance of marriage in that form was necessary."

12. I may point out that Mt. Basanti originally went to Munshi's house in 1984 Smt. Munshi died in 1997 Smt. The suit was instituted in 1999 Sam. (SIC) the statements of the witnesses were recorded (SIC) that year. Having regard to the lapse of time, the case did not admit of clear and direct proof of the performance of "Chadar Andazi". It is under those circumstances that the Court has to fall back on the presumption permissible under Section 114, and see whether the opposite party has been able to repel that presumption by clear and cogent evidence. As was observed by the Travan- core-Cochin High Court in--'Venkitaraman v. Central Road Traffic Board', AIR 1953 Trav. C. 392 (E):

"It is to provide for cases which, on account of lapse of time, may not admit of clear and direct proof, that the presumption under Section 114 is sanctioned. There is no scope for presumption when facts are known."

13. In the present case the presumption in favour of Mt. Basanti is strengthened by the following circumstances.

The birth entry dated 12th Jeth 1989 Sam., paper 21 of the trial Court's record, which shows that a daughter was born to Munshi on that date. The birth was reported by Pholo Lambardar. The plaintiff, no doubt, has denied having attested this entry. We have to see what value is to be attached to this entry. As was held by the Division Bench of the Allahabad High Court in--'Dasi Ram v. Emperor', AIR 1947 All 429 (F):

"A register of births maintained at the police station under para. 322, Police Regulations, 1942 Edn., being a public document made by a public servant in the discharge of his official duties, entries in this register are admissible in evidence under S. 35 and it is not necessary to prove who wrote those entries and what his source of information was."

Mt. Basanti stated that the daughter referred to therein was born to her from Munshi. It is also significant that Shri Moti Singh Tehsildar, Ghamar-win, (D. W. 1) deposed on oath that Pholo came to him and told him that Munshi's military pension might be continued in favour of Mt. Basanti, as she was poor and had a daughter 8 years old.

The statement of the Tehsildar was recorded on-18-9-1999 Sam., and according to him the plaintiff had been to him on 24-7-1998. In other words, the daughter was born sometime in 1990 which, , more or less, corresponds to the birth entry.

The Courts below discarded the statement of the Tehsildar on the ground that he had deposed entirely from memory. Considering that only one year had elapsed between the date of the plaintiff's alleged statement and the date of the Tehsildar's statement in Court, I consider that the grounds given by the Courts below for discarding the Tehsildar dar's statement, are not sound. Therefore, the Court. I think, would be within its right in drawing an inference that the daughter born to Munshi on 12th Jeth 1989, was the result of his union with, Mt. Basanti.

14. There is the mutation entry in favour or, Mt. Basanti dated 24-3-1998 Sam., to be found at page 5 of the record. The entry is to the eiiect that Munshi had died issueless and Mt. Basanti, as his widow, was entitled to succeed. She was identified by Khindu Lambardar. It is true that the plaintiff and his witnesses have stated that at the time, when the mutation was effected in Mt. Basanti's favour, he (the. plaintiff) was ill. It is true that Khindu was not produced by Mt. Basanti, but it is significant that Shiam (P. W. 4) admitted that Khindu Lambardar was present at the time when the mutation was effected. The learned Counsel for the respondent argued that the mutation entry does not show that the villagers had gathered on the occasion. This, however, in my opinion, does not negative the value of the mutation entry, which is a valuable circumstancs corroborating the presumption in favour of Mt. Basanti.

15. There is the document Ex. D. W. 4/1 executed by Munshi on 19th Har 1984 Sam. The document has been proved by the scribe Babu Ram. (D. W. 4). The document, which is in the nature of a marriage settlement recites that Munshi decided to perform 'Chadar Andazi' with Mt. (SIC), and in that connection, he gifted some land to Bhagata, son of Mt. Basanti by a previous husband. The learned Counsel for the respondent argued that the document was not admissible in evidence, as it is only a copy. It does not appear, however, that such an objection was taken in the trial Court to the admissibility of this document. In--"Mahomed Yusaf v. Hafiz Abdul Khaliq', AIR 1944 Lah 9 (G), a Division Bench of the Lahore High Court held that:

"An objection as to the admissibility of a document, e.g., on the score of the document being a copy of a copy, should be taken when the witness who is produced to prove to its contents deposes about it. If such objection is not raised at an early stage of the case, it cannot be entertained later on."

A similar view was taken by their Lordships of the Privy Council in--'Gopal Das v. Sri Thakurji', AIR 1943 PC 83 (H), wherein the decision was that:

"Where the objection to be taken, is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by, until the case comes before a Court of Appeal and then complain, for the first time, of the mode of proof."

In 'Dogar Mal v. Sunam Ram', AIR 1944 Lah 58 (I), a Division Bench of that High Court pointed out that:

"The mode of proof of a document is a question of procedure and is capable of being waived. When the objection as to manner of proof of a document, such as that the entries in the account books could not be looked at without formal proof, was not taken at the time when the document was sought to be proved in the lower Court and the document was really referred to by the parties and the Court, it is too late to raise it for the first time in second appeal."

The contention that the document is not admissible in evidence cannot be therefore sustained. There is an application by the appellant seeking leave to file the original of the document but the same was not pressed. A perusal of the document shows unmistakably that Munshi wanted to contract 'Chadar Andazi' with Mt. Basanti.

16. There is the testimony of Shri Moti Singh Tehsildar, Gharnarwin, (DW 1), referred to already to the effect that Pholo appeared before him on 24-7-1998 and stated that Mt. Basanti was Munshi's widow, and he was her reversioner. The plaintiff further expressed his consent before the Tehsildar to the effect that Mt. Basanti may continue to receive Munshi's pension on the ground that she was poor, had a daughter of 8 years to bring up, and her lands were under mortgage. The only question, which was apparently put to the Tehsildar in cross-examination, was whether Pholo made the statement to him at the instanee of somebody else. To this the Tehsildar replied that the plaintiff's statement was voluntary, and the same was read over to him, and admitted by him to be correct. I have already given my reasons for holding that the Tehsildar's memory could be trusted because there was not much lapse of time. Further, as was pointed out in--"Velu Pilial v .Paramatiadam', AIR 1954 Tray C 152 (J):

"The trial of a cause is aimed at arriving at the truth of the conflicting cases that are presented before the Court. Every witness entering the box does so as a witness of truth. Cross-examination vis a powerful and valuables weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. The extent of its effectiveness, no doubt, depends upon dexterity of the wielder of the weapon, but every cross-examiner should and can if he is careful, indicated in cross-examination, which ever part of the evidence, given in examination-in-chief, is challenged, and an omission to do so, would lead to the inference that the evidence is accepted, subject, of course to its being assailed as inherently improbable."

It is noteworthy that the various Facts deposed to by the Tehsildar, in his examination-in-chief, were not specifically assailed in cross-examination. There was nothing inherently improbable in the evidence tendered by him. It is significant that the plaintiff admitted that he had deposed before the Tehsildar that Mt. Basanti might continue to Receive pension. This circumstance, also in my opinion, strengthens the case of Mt, Basanti.

17. There is the statement of Babu Ram (D. W. 4) to the effect that Munshi had owed him some money. After his death Babu Ram obtained a decree against Mt. Basanti in respect of that debt. The plaintiff took the liability upon himself to pay the decretal amount and executed a document in favour of Babu Ram. In return, the plaintiff obtained a mortgage from Mt, Basanti. The plaintiff's explanation of this transaction is that Mt. Basanti's Mukhtar got a mortgage out of him by representing that Mt. Basanti; thereby, would continue to receive Munshi's pension. It does not appear that the plaintiff took any steps to repudiate the mortgage later on. Therefore, the explanation given by the plaintiff appears to be far-fetched. The fact remains that he took a mortgage from Mt. Basanti in respect of money due from Munshi. This is inconsistent with the plaintiff's contention that Mt. Basanti was not Munshi's widow, but only a concubine.

18. To sum up, therefore, the presumption which can be drawn in favour of marriage strengthened by the five factors discussed above. The Courts below have not properly appreciated the nature and scope of the presumption that could be drawn in favour of marriage. They were apparently of the opinion that such a presumption could not be drawn, because the defendant was unable to prove that 'Nath Chadar' had been performed with Munshi. As was pointed out by my learned predecessor, in his order of review, this really amounted to begging the question since, if the defendant could prove her marriage with Munshi. The question of drawing any presumption did not arise. There was no insurmountable obstacle in the way of Mt. Basanti and Munshi getting married. Therefore, it seems to me that this was a fit case, where such a presumption ought to have been drawn in favour of Mt. Basanti, especially when the legal presumption in her favour stands corroborated by other facts referred to above, and the evidence produced by the plaintiff, is, in my opinion, hardly sufficient to rebut it. I may say a word "about Mt. Achri, who according to Lachu P. W. 6 and Hiru P. W. 7 had been married to Munshi. Basanti's statement was that Achari had gone over to somebody else. In any case, it is obvious that the plaintiff does not recognise Achri as Munshi's widow, as he claims to be Munshi's sole heir.

19. Once it is held that Mt. Basanti is the widow of Munshi, then it follows that Pholo cannot maintain a suit against her for possession of Munshi's property.

20. ORDER: The result is: I allow this second appeal, set aside the decisions of the Courts below and dismiss the suit. The appellant will get her costs from the respondent, here and in the Courts below.

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