Shiv Ram and Another vs Smt. Durga Devi and Others

V.K. Bali, J.—This is defendants''s appeal against the judgment and decree rendered by Additional District Judge, Ambala dated 5th February, 1991, vide which judgment and decree passed by the trial Court was set aside; thus, decreeing the suit of the plaintiffs.

Facts that constrained the plaintiff-respondents to file suit for possession require to be briefly enumerated. One Joti Ram, stated to be husband of plaintiff No. 1 Smt. Durga Devi, was earlier married to one Smt. Perma Devi. No issue was, however, born put of this wedlock. For the reason that Smt. Perma Devi could not bear any child or otherwise, she is stated to have become a lady of unbalanced mind and left the matrimonial home long back to an unknown destination. After she had so left the house, she was not heard by those who would have naturally known about her. Smt. Durga Devi, plaintiff No. 1, then came into matrimonial alliance with the aforesaid Joti Ram. Out of this marriage, however, four children were born; two out of them predeceased Joti Ram whereas two others who are daughters, i.e. plaintiffs No. 2 and 3, are stated to be still living with plaintiff No. 1. Joti Ram during his life time had mortgaged some land out of the total suit land owned and possessed by him, as he was unable to manage the same on account of his old age. Some of the mortgagees were the present defendant-appellants. Joti Ram died on 20th November, 1978. His estate devolved upon the plaintiffs, evidenced through mutation of inheritance sanctioned by revenue officials. When, however, the mutation was to be attested, the defendants are stated to have produced before the revenue officer a will dated 20th October, 1978. The said will is alleged to have been executed by Joti Ram, by which entire property was bequeathed by him to the defendants, whereas all the plaintiffs, i.e. the wife and two daughters were totally disinherited. On the basis of the will, the defendants are stated to have first reversed the sanction of mutation that was sanctioned by the revenue officials and then by getting the same sanctioned in their own favour, forcibly dispossessed the plaintffs. Styling, thus, the possession of the defendants as wholly illegal and that of a tresspasser and the will to be an outright act of concoction and forgery, the present suit for possession was brought by the plaintiffs. The defendants contested the suit on a variety of grounds which will be reflected from the issues that came to be framed by the trial court and are reproduced as follows :-

(1) Whether the plaintiff Durga Devi is widow of Joti Ram deceased and the other plaintiffs are the daughters of the said deceased ?

(2) Whether the plaintiffs are owner''s of the suit land as alleged ?

(3) Whether the deceased Joti Ram executed a valid will in favour of the defendants as alleged ?

(4) Whether the suit land is ancestral property as alleged ? If not, its effect ?

(5) In what capacity the defendants are in possession of the suit property ?

(6) Relief.

After the resultant trial the trial court by returning a finding that plaintiff No. 1 was not proved to be the widow of Joti Ram and that plaintiffs No. 2 and 3 were not proved to be the daughters of Joti Ram, dismissed the suit. The will propounded by the defendants was, however, held to be a fictitious document surrounded by suspicious circumstances. In ultimate analysis, however, the suit was dismissed. Aggrieved with the judgment and decree passed by the trial court, the plaintiffs carried an appeal which was accepted as indicated in the earlier part of this judgment. It is against this judgment of the lower appellate court that the present regular second appeal has been filed. It is significant to mention here that the first appellate court reversed the findings of the trial court with regard to relation-ship of the plaintiffs with Joti Ram but in so far as findings of invalidity of the will were concerned, the same were upheld.

Learned counsel for the defendant appellants strenuously urged that the first appellate court has clearly erred while accepting the oral and documentary evidence with regard to relationship of the plaintiffs with Joti Ram deceased. Not only the said evidence is in sharp contrast to the pleadings but the same is contradictory inter se. No reliance could possibly be placed upon such Self-conflicting evidence. In so far as oral evidence so as to prove relationship of Joti Ram with the plaintiffs is concerned, the same is not proved through conduct as per requirements of section 50 of the Indian Evidence Act, contends the counsel.

Dealing with the criticism levelled by the learned counsel to the oral evidence first, it shall be observed that Smt. Durga Devi appeared as P.W.I and deposed that she married Joti Ram and out of this wedlock children ware born. P.W.2 Ram Sarup and P.W.3 Sawan Ram were examined to prove the marriage between Durga Devi and Joti Ram. They deposed that it was through their good offices and cordial relations between Joti Ram and Durga Devi that the marriage between them was performed. They were instrumental in setting their marriage and it was in their presence, i.e. the witnesses, that Sapat pati was performed by Pandit Kishen Chand. Chanda Ram P. W.4 and Sumer Chand P.W.5 were also examined to prove the marriage between Joti Ram and Durga Devi. It is true that in so far as the statements of Chanda Ram and Sumer Chand P.W.5 are concerned, some criticism of their evidence can be justified on the ground that they did not depose on the basis of conduct but in so far as the evidence of Smt. Durga Devi herself and Ram Sarup P.W.2 and Sawan Ram P.W.3 is concerned, the same could not be discarded on account of their inability to depose on the basis of conduct. Section 50 of the Indian Evidence Act lays down that the evidence of conduct of a person about his relationship is a relevant fact. When the Court has to form an opinion as to the relationship of orie person to another, the opinion, expressed by conduct as to the existence of such a relationship of any person who, as a member of the family or otherwise has special means of knowledge on the subject, is relevant. The statement of Durga Devi that she was married to Joti Ram in itself expresses conduct. Likewise, the evidence of Ram Sarup and Sawan Ram P.W. 5 that they were instrumental in setting the marriage between Durga Devi and Joti Ram and that they were present at the time of marriage and that Sapat Pati was performed in their presence also proves the relationship between Joti Ram and Durga Devi by conduct. I am not prepared to accept the argument of the learned counsel for the appellants that Ram Sarup and Sawan Ram P.W.8 had necessarily to state that they had seen Joti Ram calling and treating Durga Devi as his wife and Smt. Durga Devi calling and treating Joti Ram as her husband. Likewise, the evidence of Durga Devi could not be held to be irrelevant if she had not stated that she was treating Joti Ram as her husband and that he was treating her as his wife. The opinion expressed by conduct will not 4n all circumstances entail requirement of stating that the witness'' was treating the person whose relationship is in dispute in a particular manner with whom such relationship has to be proved. Conduct can be expressed by direct evidence, like the evidence of a nurse stating in Court that the named child was born to the named mother and that she her self was present at the time of delivery. Likewise, the evidence of mother would be relevant and admissible if Restates that she had given birth to a particular child. The evidence by conduct, i.e., the requirement of a witness to state that he had been observing the person whose relationship is in dispute as related to another person by the relationship that has to be proved only if the evidence is not of a direct nature. The statements of Ram Sarup P.W.2 and Sawan Ram P.W. 3, as also that of Durga Devi, could not be totally brushed aside as was done by the trial court and is canvassed to be done by the learned counsel for the appellants before this court on the ground that these witnesses have not stated that Durga Devi was treating Joti Ram as her husband and, in turn, Joti Ram was treating Durga Devi as his wife, as also on the ground that Durga Devi did not state that she Was treating Joti Ram as her husband. While holding so the learned trial court clearly fell in error which was rightly corrected by the first appellate court. As mentioned above, the statements of Chanda Ram P.W. 4 and Sumer Chand P.W 5 could not be relied upon as their evidence lacked proof of relationship by conduct but it is not the quantity but quality of evidence which is material. The evidence of Durga Devi inspires confidence. It is a straightforward Version of a simple but a straightforward lady. Sufficient corroboration to her statement is forthcoming from Ram Sarup PW.2 and Sawan Ram P.W. 3. The matter does not rest here. It shall be noticed that Chhottu Ram P.W.3 who was examined by the defendants-appellant themselves clearly stated that he saw Durga Devi residing with Joti Ram and that two children were born from their union. In view of what has been stated above, there is no merit in the contention Of the learned counsel for the appellants that the oral evidence led on record was inadmissible or of such a nature that could not be taken into account.

The next contention of the learned counsel for the appellants that the pleadings in the case are in sharp contrast to the evidence, on the first flush looks impressive but on deeper examination no substance is found in the same. It is true that in the plaint it has been mentioned that Durga Devi was married to Joti Ram in the year 1952 and the witnesses have also stated that the marriage took place in the said year. It is also true that documentary evidence that has been led in the case, on the other hand, shows that the marriage took place somewhere in the year 1970 but that alone is not enough to negative the relationship of the plaintiffs with Joti Ram. The facts of the case narrated above reveal that the first wife of Joti Ram was alive and had left for an unknown destination. It appears that in their anxiety and fear that the second marriage of Joti Ram during the currency of the first marriage may not have adverse effect on the case that the plaintiffs appear to have pleaded in the plaint and tried to substantiate tie date of marriage between Joti Ram and Smt. Durga Devi when the same would not have any evil consequences. That lapse on their part, however, would not mean that if the date of marriage is proved to be of a later date, the marriage as such, shall be held not to have been proved. It is true that the respondents have been able to prove on the record of this case that plaintiff Durga Devi was born in the year 1950, and, therefore, there was no question of her marriage with Joti Ram when she was only two years but, as said before, proof that Durga Devi was not married to Joti Ram in the year 1952 would not entail an automatic finding that she was not married to him at all. Further, in so far as plaintiffs No. 2 and 3 i.e. daughters of Joti Ram, are concerned it could not possibly be said that on account of failure of the plaintiffs to prove the marriage between Durga Devi and Joti Ram in the year 1952 they cannot be held to be daughters born out of the wedlock between Joti Ram and Durga Devi.

The plaintiffs have also brought on the record of the case Ex. P. 1 which is a ration card, positive and negative photographs Ex. p-6/1 and P6/2, birth entries Ex. P.4 and P.5, voters list Ex. P.8, P. 11 and P.27. The learned counsel appearing for the appellants vehemently contends that these documents do not connect plaintiffs No. 2 and 3 with Joti Ram in any manner. In the ration card, Ex. P. 1, Durga Devi plaintiff has been recorded to be the wife of Joti Ram and Naresh Kumari and Shail Kumari have been recorded as daughters of Joti Ram in addition to Prema Devi. This ration card bears the signatures of Joti Ram and was issued on 28th January, 1976. Ex. P.4 is the birth entry of Santosh who was born on 3-9-1972 at village Azizpur. The name of the father has been recorded as Joti Ram s/o Kundan Lal, resident of Azizpur. Ex. P.5 is the birth entry of a daughter born to Joti Ram and Durga Devi on 20th July, 1976. Ex. P.8 is the voters list published on 1st January, 1976 and voters list Ex. P. 11 is the one published in October, 1971, where Durga Devi has been recorded as the wife of Joti Ram. The contention of learned counsel for the appellants that the names of the daughters as given in the ration card do not exactly correspond to the names given in the birth entry Ex. P-4 has no merit for the reason that it has been well explained by PW 2 Ram Sarup that Santosh was also known by the name of Naresh Kumari. It has been proved by overwhelming evidence that two daughters were born from the wed lock of Joti Ram and Durga Devi. There may be some discrepancy in the names but the fact that the children have been recorded in Ex. P-4 and P-5 to be that of Joti Ram would provide sufficient corroboration to the oral evidence, reference of which has been given above. There are few other instances also given by the learned counsel for the appellants to stress his point that the documentary evidence led in the case inter se conflicts but I do not wish to go into the matter any more for the reason that the witnesses examined by the appellants themselves stated in no uncertain terms that Durga Devi was living with Joti Ram for a long time and that two daughters were born out of their wedlock. Presumption of marriage can be raised from living together of a man and woman for a long time. What I have stated above would be supported from Khageswar Naik Vs. Domuni Bewa and Another, , Badri Prasad v. Dr. Director of Consolidation A. I. R. 1987 S. C. 1357 , and Bikash Kumar Mukherjee and Others Vs. Smt. Nanda Rani Mukherjee and Others, .

The last contention of Mr. M. S. Jain that inasmuch as Joti Ram was in service and retired in 1968, presumably at the age of 58 years, could not be expected to marry at that time and produce children has also no merit. There is nothing on record to show that Joti Ram was sick or that be was in such a weak frame that it was impossible for him to produce children at that age.

For the reasons aforesaid I find no merit in this appeal arid dismiss the same. The parties are, however, left to bear their own costs.