Sham Singh vs Kanwar Singh

N.K. Kapoor, J.—This is defendant''s regular second appeal against the concurrent findings of the Courts below.

The dispute pertains to the estate of Shiv Lal. According to the plaintiff, Shiv Lal died issueless and the plaintiff being his father''s brother legally succeeded to his estate in the absence of any heir amongst ClassI heirs as per Hindu Succession Act.

On the other hand according to the defendant he is son of Shiv Lal as his mother had a karewa marriage with him and out of this wedlock he was born.

On the pleadings of the parties a number of issue were framed but primarily the contest revolved around the status of the defendant i.e. whether he is son of Shiv Lal and so entitled to inherit the property left by Shiv Lal.

Oral as well as documentary evidence was adduced by the respective parties. Trial Court primarily placed reliance upon the statement of Basawa Singh PW 3, a functionary in the Army Office, who brought the summoned record and on the basis of the same deposed that as per the record one Khusiya, erstwhile husband of Smt. Risalo, mother of the defendantthe appellant died on 30.6.1945 and so the Court concluded that story set up by the defendant that his mother Smt. Risalo had a karewa marriage with Shiv Lal some time in the year 1940 is not believable. Court also ignored the document exhibit D1 from the office of Registrar, Births and Deaths showing that a son was born to Shiv Lal son of Rattan Singh of village Gochi on 5.9.1944. Similarly, the trial Court placed no reliance upon the school leaving certificate exhibit D28 pertaining to one Sham Singh son of Shiv Lal showing his date of birth to be 25.11.1944. The trial Court noticed the discrepancy in the date of birth as reflected in exhibit D1 i.e. 5.9.1944 and exhibit D 28 i.e. 25.11.1944. Accordingly, suit of the plaintiff was decreed as prayed for.

Lower Appellate Court too reappraised the evidence adduced by the parties but found no ground to vary or reverse the findings of the trial Court. Appeal was consequently dismissed.

Counsel for the appellant while assailing the judgments of the Courts below terming these to be wholly erroneous, based on misconstruing the documents and legally unsustainable, pressed his application for additional evidence. According to the counsel, the Courts below have erred in law in coming to the conclusion that the appellant is none else but Bhagwana, son of Khushi Ramthe deceased husband of Smt. Risalo. This in fact has greatly prejudiced both the Courts below. According to the appellant evidence with regard to the entry into the birth and death register could not be adduced in evidence as the appellant did not know about the existence of such a document. The document forms part of a public record and so its authenticity can be assumed. Application for additional evidence, if permitted, will not only dispel the impression which the Courts below erroneously formed but otherwise too would help the Court in adjudicating the matter more fairly even in the presence of the existing evidence. Thus, it is a fit case where permission to adduce additional evidence needs to be granted. This application was filed on 3.9.1979. The Court vide its order dated 13.12.1979 directed that the same shall be considered at the time of hearing of the appeal. So, it has become imperative to examine the merit of this application.

Both the counsel have been heard on the merit of the case as well as upon this application for additional evidence. The appellant by means of this application seeks permission to adduce in evidence two documents i.e. (i) Certified copy from the register of mutations of village Gochi showing that the land which was left by Bhagwana alias Bhagwan Singh alias Sham Singh son of Khushi Ram, who died issueless without leaving a widow on 20.2.1950 was mutated in favour of his surviving brothers Sultan Singh, Jag Ram and Hardev Singh; and (ii) Certified copy from the register of Births and Deaths kept in the office of Chief Medical Officer, Rohtak certifying that Bhagwana alias Sham Singh son of Khushi Ram died on 20.1.1950, whose death was registered on 26.3.1950. According to the appellant these two documents, if permitted to be adduced in evidence will dispel the impression taken by the Courts below that the present appellant Sham Singh is not the same person who is shown to be Bhagwana alias Sham Singh son of Khushi Ram. According to the counsel whereas Bhagwana alias Sham Singh son of Khushi Ram died issueless on 20.2.1950 and his property was mutated in favour of his other brothers the present appellant as per documents exhibit D1 and D28 (ignoring the slight discrepancies in these two documents) was born in the year 1944 and is alive. Thus, mere similarity of the name could not be construed in a manner depriving him of his valuable right to succeed to the property of his father Shiv Lal. Counsel further argued that the Courts wrongly came to the conclusion that Khushi Ram died on 30.6.1945 (relying upon the deposition of PW 3). Statement of this witness, if properly and minutely examined, clearly brings out that this date is taken to be the presumed date of his death for official record. In fact, there is no clear proof with the authorities as to when this person died. This way too, both the Courts have misread the statement of this witness. Besides it, the Court for reasons best known did not make an attempt to take a copy of the application dated 18.4.1952 which was addressed to the Ministry of Defence. In this application mention has been made that Smt. Risalo performed a karewa marriage with Shiv Lal. The Courts below have simply glossed over the deposition of PW 3 wherein he has stated that Sarvshri Sultan Singh, Jag Ram and Hardev Singh were of 27, 25 and 21 years of age as per record. Had the Courts below examined the evidence of this witness in relation to documents exhibit D1 and D28 the fallacy of the stand of the plaintiff would have come to light.

Counsel for the respondent on the other hand argued that findings of the Courts below being concurrent and otherwise not vitiated do not call for interference in the second appeal. Reliance has been placed upon the following decisions of the Apex Court :

(i) Mangal Singh and others v. Smt. Rattno (dead) by her LRs and another, AIR 1967 SC 1786;

(ii) Deity Pattabhiramaswamy v. Hanymayya and others, AIR 1959 SC 57;

(iii) Paras Nath Thakur v. Smt. Mohan Dasi (deceased) and others, AIR 1959 SC 1204

(iv) V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another, AIR 1963 SC 302.

There is no dispute with regard to the enunciation of law in the aforesaid judgments of the Apex Court and so no useful purpose would be served by dilating upon these. Suffice it would be to say that the law laid down by the Apex Court is binding. However, present is a case where the evidence has been misread or has not been properly read. Once the Court comes to the conclusion that the Courts below have either not properly read the document or have misread the same, this Court is not precluded from examining the matter and if need be to remit back to the lower Court for fresh adjudication in the light of observations made.

As noticed in the opening part of the judgment, case primarily hinges upon determining as to whether Smt. Risalo married Shiv Lal after the death of her previous husband Khushi Ram and whether Sham Singh is son of Shiv Lal/Smt. Risalo. Document exhibit D1, an entry from the Birth and Death Register showing that Shiv Lal was blessed with a son showing his date of birth to be 5.9.1944 and exhibit D28, a school leaving certificate where one Sham Singh son of Shiv Lal is shown to be born on 25.11.1944 give an indication that Shiv Lal was blessed with a son. Authenticity of these two documents is not in dispute. Otherwise too, these documents are earlier in time to the controversy raised in the present litigation. This lends some credence to the stand of the appellantthe defendant. There is also other evidence on record like the statement of PW 3, a functionary from the Army Office, who has deposed to the effect that presumed date of death of Khushi Ram is 30.6.1945. Whether Khushi Ram died earlier to the so called presumed date of death can only be now determined on the basis of oral evidence. All the same another document i.e. an application, reference to which has been made by PW 3 dated 18.4.1952 can also throw some light upon this contentious issue. Somehow the parties did not place this document on record and Court did not also think it appropriate to direct the witness to place a copy of this document/application dated 18.4.1952 on record. This application too has a material bearing as it also makes mention that Smt. Risalo had a karewa marriage with Shiv Lal. Who was the author of this application remains undetermined. The evidence now sought to be adduced was not in the knowledge of the appellant. Otherwise too, this document will help the Court in dispelling its earlier impression that appellant is none else but son of Khusia. So I permit the appellant to adduce the additional evidence as prayed for.

Letter dated 18.4.1952, the reference to which has been made by PW 3 and the additional evidence permitted to be adduced is likely to have a material bearing upon the point in controversy i.e. (sic) of the appellant.

On merit of the appeal too I am of the view that the Courts below have misread the statement of PW 3 and so wrongly failed to place any reliance upon documents exhibit D1 and D28.

Accordingly, I accept this appeal, set aside the judgment and decree of the Courts below and remand the case for retrial. Trial Court shall afford due opportunities to each of the parties to adduce evidence. In case neither of the parties lead any evidence in respect of the application dated 18.4.1952, reference to which has been made in the statement of PW 3 the Court on its own will examine a functionary from the Army office along with the relevant record and take this document on its record. Court shall also make an attempt to decide the case without any unjust delay and preferably within a period of six months from the receipt of a copy of the order of this Court.