RSA No.2571 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2571 of 1994 Date of decision 26 .9.2011. Gurdev Kaur ...... Appellant versus Mal Singh and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present : Mr. S.S.Salar, Advocate for the appellant. Mr. Arun Palli, Senior Advocate with Mr. Kanwal Goel, Advocate for the respondent. Mr. Rishav Jain, Advocate for Mr. Arihant Jain, Advocate for respondent No.4. K.C.PURI . J. Challenge in this appeal by the defendant-appellant is the judgment and decree dated 27.1.1994 passed by Shri S.K.Chopra, Additional District Judge, Sangrur vide which the appeal preferred by the defendant-respondent against the judgment and decree dated 8.4.1985 RSA No.2571 of 1994 2 passed by Shri D.K.Sarpal, learned Sub Judge Ist Class, Malerkotla was dismissed. 2. The facts when put in brief are that the land in dispute as mentioned in the head note of the plaint was originally owned and possessed by Jora Singh son of Phuman son of Attra, who died issueless on 17.3.1978. It is further alleged by the plaintiffs that Jora Singh did not marry defendant No.1 Har Kaur alias Gurdev Kaur nor she is his widow. Defendant No.1 Har Kaur alias Gurdev Kaur was married with Gurdev Singh son of Karam Singh, resident of village Sangala, Tehsil Malerkotla who died about four years back and Har Kaur alias Gurdev Kaur defendant No.1 in connivance with revenue officials got mutated the land in dispute belonging to deceased Jora Singh, alleging herself to be his widow and that mutation is not binding on them. The plaintiffs have claimed possession of the suit land mentioned in the head-note of the plaint on the ground that they are the brother and sisters of deceased Jora Singh and his legal heirs whereas defendant No.1 Har Kaur alias Gurdev Kaur has no right, title or interest in the suit land. The defendant No.1 has sold the suit land in favour of defendant Nos.2 and 3 and that sale is not binding upon the plaintiffs. 3. Defendant No.1 Har Kaur @ Gurdev Kaur filed written statement whereby she admitted that Jora Singh son of Phuman Singh was the owner in possession of the suit land but denied about the correctness of the pedigree table mentioned in the plaint. She further took up the plea that she was married with Jora Singh 17 years back at village Balamgarh, Sub Tehsil Dhuri by way of Anand Karaj ceremony and she remained as wife of Jora Singh till his death. She also took up the plea that her name is RSA No.2571 of 1994 3 mentioned in the voter lists of the village Manak Majra and she is also holding a ration-card which proved that she is the widow of Jora Singh. She further took up the plea that mutation with regard to the land in dispute has rightly been sanctioned in her favour because she is the widow of Jora Singh deceased and the plaintiffs have no right, title or interest in the land in dispute. This defendant further denied that she transferred any part of the suit land to defendant No.2 and 3 as alleged. According to her, defendant No.3 and 4 namely Manjit Kaur and Nirmal Singh in connivance with each other got two sale deeds dated 13.10.1982 and 26.10.1982 executed in favour of their minor son Harpreet Singh defendant No.2 by producing some other lady who impersonated herself as defendant No.1 Har Kaur alias Gurdev Kaur and executed the alleged sale deeds in favour of defendant No.2 Harpreet Singh and she has got a case registered under Sections 423/467/471/120-B IPC P.S. Malerkotla on 24.12.1982. It has been further alleged by the defendant No.1 Har Kaur alias Gurdev Kaur that she is the widow of deceased Jora Singh, who was the owner of the suit land and mutation with regard to the land of Jora Singh has rightly been sanctioned in her favour by the revenue officials and the plaintiffs have no right, title or interest in the land in dispute. 4. Defendant No.2 Harpreet Singh minor also filed written statement through his court-guardian Shri Amarjit Sharma, Advocate whereby he admitted that Jora Singh deceased was the owner of the suit land and the same has been transferred by defendant No.1 Har Kaur alias Gurdev Kaur in his favour. Under these circumstances, this defendant also prayed that the suit of the plaintiffs be dismissed with costs. 5. Defendant No.3 to 7 were absent despite service through RSA No.2571 of 1994 4 summons and they were ordered to be proceeded against ex-parte. 6. From the pleadings of the parties, the following issues were framed on 5.9.1983:- 1. Whether Har Kaur alias Gurdev Kaur is the widow of Gurdev Singh son of Karam Singh?OPP 2. Whether Har Kaur alias Gurdev Kaur is the widow of Zora Singh deceased?OPD 3. Whether the plaintiffs are entitled to the possession of the suit land?OPP 4. Relief: 7. The parties have led their respective evidence on the aforesaid issues. The learned trial Court after hearing the learned counsel for the parties and appraisal of the evidence, decreed the suit of the plaintiffs vide judgment and decree dated 8.4.1985. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 8.4.1985 passed by Sub Judge Ist Class, Malerkotla the defendant- appellant preferred First Appeal, which was heard and dismissed by Shri Shri S.K.Chopra, Additional District Judge, Sangrur judgment and decree dated 27.1.1994. 9. Still feeling dissatisfied with the aforesaid judgments and decrees, the present regular second appeal has been preferred by the defendant/appellant. 10. Learned counsel for the appellant has submitted an application dated 29.1.2008 alleging therein that following substantial question of law have arisen in the present appeal :- (1) Whether the judgments rendered by the learned lower appellate court and learned trial court are perverse in as much as the learned lower appellate court has not taken RSA No.2571 of 1994 5 into consideration the presumption to be raised regarding legal marriage if the court had come to the conclusion that Gurdev Kaur and Jora Singh were living as husband and wife for long ? (2) Whether the judgments rendered by the learned lower appellate court and learned trial court are perverse on the ground that the suit of the respondent has been decreed on the weakness of the defence but not that the plaintiffs have been able to prove their case. There was no rebuttal to the presumption which the learned lower appellate court was bound to raise? (3) Whether the judgment is perverse for the reason that legally admissible documents have not been taken into consideration in which the plaintiffs and his son had admitted Gurdev Kaur to be the wife of Jora Singh? (4) Whether the judgment is sustainable for the reasons that it was not the case of the plaintiffs that marriage has taken place but it is void. It was the positive case of the plaintiffs that marriage did not take place. Whether the learned lower appellate court was legally entitled to declare the marriage void on the ground which was not at all pleaded or proved i.e. marriage during the subsistence of earlier marriage with Gurdev Singh ? (5) Whether the judgments passed by the learned lower appellate court and learned trial court are against the law laid down by the Hon'ble Supreme Court of India in a judgment reported in 1996 AIR SC 1290 ? 11. I have heard learned counsel for the parties and have gone through the records of the case. 12. Learned counsel for the appellant has submitted that main controversy in the present lis is whether Har Kaur alias Gurdev Kaur is the widow of Jora Singh deceased? Har Kaur alias Gurdev Kaur was previously married to Gurdev Singh. Proceedings under Section 9 of the Hindu Marriage Act, were initiated and on the basis of the above said proceedings, decree of divorce was granted, dissolving the marriage between Har Kaur alias Gurdev Kaur and Gurdev Singh. The trial Court in spite of the fact RSA No.2571 of 1994 6 that decree has been passed dissolving the marriage between Har Kaur alias Gurdev Kaur and Gurdev Singh has returned the finding on issue No.1 in favour of the plaintiffs, holding that she is the widow of Gurdev Singh. After the decree of divorce, the defendant Har Kaur cannot be the widow of Gurdev Singh. Both the Courts below have misread and misinterpreted the said evidence regarding decree of divorce between the defendant/appellant and Gurdev Singh. So, the finding on issue No.1 are perverse. 13. Learned counsel for the appellant further continuing the attack on the judgments and decrees of both the Courts below, has submitted that voluminous documentary as well as oral evidence admissible under Section 50 of the Indian Evidence Act, has been produced proving the relationship of Har Kaur alias Gurdev Kaur with Jora Singh but both the Courts below have misread and misinterpreted the said evidence and had drawn a wrong conclusion. 14. Nirmal Singh is the son of Mal Singh. Nirmal Singh got executed a sale deed in favour of defendant No.2 Harpreet Singh and defendant No.3 Manjit Kaur. FIR under Sections 420, 467, 471 and 120-B, IPC has been registered against Nirmal Singh and Manjit Kaur on 24.12.1982. On the one hand, defendant Nos. 2 to 4 admitting Har Kaur alias Gurdev Kaur as owner of the property got a false and fabricated sale deed executed in favour of defendant Nos.2 and 3 and on the other hand, father of Nirmal Singh has filed the present suit. The suit challenging the said sale deed was filed but the same has been stayed due to the decision in the present case. The main ground for non-suiting the defendant/appellant is that the ceremonies of marriage with Jora Singh have not been proved. It RSA No.2571 of 1994 7 is submitted that Har Kaur alias Gurdev Kaur while appearing as her own witness has proved the said factum of marriage. Otherwise also, the defendant had been living with Jora Singh for number of years and in view of authority Ranganath Parmeshwar Panditrao Mali and another vs. Eknath Gajanan Kulkarni and another AIR 1996 Supreme Court 1290, the defendant/appellant shall be deemed to be the legally wedded wife of Jora Singh. It has been laid down in the said ruling that when the husband and wife had been living for a considerable long period, in that case there is a presumption of legal marriage. The judgments and decrees of both the Courts below are based upon hyper technical approach regarding the date of marriage. 15. The plaintiffs in order to prove the case have examined Ishwar Singh brother of Gurdev Singh. He has simply stated that Gurdev Singh was married to Har Kaur. In the cross-examination this witness has admitted that there were differences between Gurdev Kaur and Gurdev Singh. However, he has shown ignorance regarding the marriage of Gurdev Kaur with Jora Singh. The other witness examined by the plaintiffs is Harnam Kaur, who has stated that defendant No.1 was not married with Jora Singh but in the cross-examination she has stated that people told her about the marriage of Gurdev Kaur with Gurdev Singh. However, this witness has admitted that Mal Singh is the father of Nirmal Singh defendant and Mal Singh and Nirmal Singh constitute a Joint Hindu Family. Since Nirmal Singh, his wife and son have admitted Har Kaur alias Gurdev Kaur as widow of Jora Singh and got the sale deed by impersonating her and as such plaintiffs Mal Singh is estopped from denying the relationship. No RSA No.2571 of 1994 8 other witness has been examined by the plaintiffs. 16. However, in rebuttal Gurdev Kaur has appeared as her own witness and deposed about her marriage with Jora Singh. Prem Chand Election Clerk as (DW-2) has produced the voter list from 1975 to 1980 showing that defendant Har Kaur is the widow of Jora Singh. Darshan Singh as (DW-3) brother-in-law of Jora Singh and has categorically stated about the marriage ceremonies of Gurdev Kaur with Jora Singh. DW-4 Raja Singh has also deposed about the relationship of Gurdev Kaur and Jora Singh. Mukhtiar Singh (DW-6) is resident of the same village as that of Jora Singh and has special knowledge about the marriage of Gurdev Kaur and Jora Singh and has stated that marriage was solemnized according to Sikh Rites and four lamas were there in the presence of Shri Guru Granth Sahib. All these evidence has been discarded by both the courts below on flimsy grounds. This approach of both the Courts below is perverse and suit is liable to be dismissed on this ground. 17. Learned counsel for the appellant has further submitted that plaintiffs in para No.7 of the plaint has pleaded that defendant No.1 has executed sale deed in favour of defendant Nos.2 and 3 and that sale deed is ineffective against the rights of the plaintiffs. It is submitted that both the Courts below have not framed any issue regarding the validity of the said sale deed nor both the Courts below have set aside the sale deed in favour of defendant Nos.2 and 3. The above said fact clearly shows that both the Courts below have not applied their mind to the facts of the case. Without setting aside the sale deed in favour of defendant Nos.2 and 3, although the same is the result of impersonation, the suit for possession and permanent RSA No.2571 of 1994 9 injunction cannot be decreed. 18. Learned counsel for the appellant has relied upon the following authorities :- 1. Reserve Bank of India versus Gopinath Sharma and another (2006) 6 Supreme Court Cases 221 ; 2. Smt.Sodha vs. Mansha Ram AIR 1971 Himachal Pradesh 27; 3. Mohd. Ikram Hussain vs. The State of U.P. and others AIR 1964 Supreme Court 1625; 4. Ishwar Singh vs. Smt. Hukam Kaur AIR 1965 Allahabad 464 5. Surjit Kaur and Garja Singh & others 1994(1) Civil Court Cases 635 (S.C.) ; 6. Mausami Chakraborty vs. Subrata Guha Roy 1991 Civil Court Cases 651 (Calcutta) ; 7. Gopal Lal vs. State of Rajasthan 1979 CLR. (SC)171. 19. Learned counsel for the respondents has submitted that so far as the sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 is concerned that would prevail only if the defendant No.1 is held owner in possession of the suit property. No doubt, both the Courts below have not specifically returned a finding that the said sale deed is in effective against the rights of the plaintiffs but since defendant Gurdev Kaur has failed to prove her relationship with Jora Singh and as such the suit of the plaintiffs has rightly been decreed. The plaintiffs are the brothers and sisters of deceased Jora Singh and they are the nearest legal heir of Jora Singh as Jora Singh died instate and without any wife and finding of fact recorded by both the Courts below regarding relationship of defendant No.1 with Jora RSA No.2571 of 1994 10 Singh cannot be interferred in the regular second appeal. Learned counsel for the respondents has relied upon the following authorities : 1. Suba Singh vs. Madan Singh (minor) through Gurnam Kaur his mother & others 2009(5) RCR (Civil) 734 ; and 2. Bhaurao Shankar Lokhande and another vs. The State of Maharashtra and another AIR 1965 Supreme Court 1564 ; 20. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance. 21. Normally, the concurrent finding of fact recorded by both the Courts below regarding relationship should not be interferred in the regular second appeal but where there are glaring illegalities committed by both the Courts below in that case even in the second appeal, this Court is not debarred from interferring even in respect of the concurrent finding of fact regarding relationship. 22. The case of the plaintiffs is that they are brothers and sisters of Jora Singh deceased and as such they are entitled to inherit the property of Jora Singh. The relationship of the plaintiffs with Jora Singh has not been denied. The only controversy left to be determined is regarding the relationship of appellant Har Kaur alias Gurdev Kaur with Jora Singh. 23. Har Kaur alias Gurdev Kaur previously married to Gurdev Singh. Although this fact was denied by the defendant at initial stage i.e. at the time of filing the written statement but when her statement was recorded in the Court she has categorically stated that she was married to Gurdev RSA No.2571 of 1994 11 Singh. The case of Har Kaur alias Gurdev Kaur is that there was divorce between Har Kaur alias Gurdev Kaur and Gurdev Singh and after divorce she married to Jora Singh and had been living with Jora Singh till his death. She lived with Jora Singh for about 17-18 years. 24. The plaintiffs have taken further stand that Har Kaur alias Gurdev Kaur has executed sale deed in favour of Harpreet Singh minor son and Manjit Kaur and that sale deed has been challenged. It is not disputed that after the death of Jora Singh the mutation in respect of his property was attested in favour of Har Kaur alias Gurdev Kaur. The sale deed executed by Har Kaur alias Gurdev Kaur in favour of Harpreet Singh and Manajit Kaur has been challenged but strangely enough both the Courts below have not even discussed this aspect of the case. 25. Learned counsel for the respondents is fair enough to concede that not even a single word has been mentioned by both the Courts below about the setting aside the sale deed. Without setting aside the sale deed, the plaintiffs cannot get any right in the property. So, it seems that both the Courts below dealt in the case in a casual manner and have not decided the real controversy between the parties. So, in these circumstances, since the judgments and decrees of both the Courts below are the result of non- application of mind, so this Court can definitely interferred in the present regular second appeal. 26. The stand of Har Kaur alias Gurdev Kaur regarding the sale deed in favour of respondent Nos.2 and 3 is that the same is the result of impersonation. Some other lady has appeared as Har Kaur alias Gurdev Kaur and executed the sale deeds in favour of none else but the grandson of RSA No.2571 of 1994 12 Mal Singh plaintiffs and daughter-in-law of Mal Singh. 27. The present case seems to be classical case of depriving a widow of her legal right to inherit the property of her husband. On the one hand, Nirmal Singh son of Mal Singh got executed the sale deed from Har Kaur alias Gurdev Kaur which according to Har Kaur alias Gurdev Kaur is the result of impersonation, on the other hand his father Mal Singh and his sisters have filed suit claiming that Har Kaur alias Gurdev Kaur is not the widow of Gurdev Singh. Both the Courts below have misread, misinterpreting and ignored the documentary evidence regarding relationship of Har Kaur alias Gurdev Kaur with Jora Singh. The plaintiffs have examined only two witnesses one is Ishar Singh (PW-1) brother of Gurdev Singh, who was earlier married to Gurdev Kaur he has simply stated that Gurdev Kaur was married with Gurdev Singh. Even Gurdev Kaur has admitted the factum of marriage. In the cross-examination,. This witness has stated that he cannot say whether after divorce Har Kaur alias Gurdev Kaur has married with Jora Singh. The sole testimony of Harnam Kaur, one of the plaintiffs, is that defendant was not related to Jora Singh in any manner. This witness has not explained under what circumstances the inheritance of Jora Singh was attested in favour of the appellant. In the cross-examination this witness has stated that Gurdev Kaur is not known to her and she has not seen Har Kaur alias Gurdev Kaur defendant. However, her cross-examination is very relevant which has been ignored by both the Courts below. In the cross-examination this witness has stated that Mal Singh and his son Nirmal Singh constitute a joint Hindu family. Mal Singh is mentally strong and is performing household affairs. For the reasons best RSA No.2571 of 1994 13 known to the plaintiffs he has not been examined nor any other witness to disprove the relationship of Har Kaur alias Gurdev Kaur with Jora Singh has been produced. On the other hand the defendant has placed on record quality evidence to prove her relationship with Gurdev Singh and one of the best evidence is the admission made by Nirmal Singh son of Mal Singh. Ex.D-6 is the statement made by Nirmal Singh in proceedings under Section 372 of the Indian Succession Act. In his statement in Ex.D-6, it has been categorically stated by him that Gurdev Kaur appellant is her aunt and Jora Singh was his uncle. Jora Singh died on 18.3.1978. Har Kaur alias Gurdev Kaur and Jora Singh have no child. He has further categorically stated that except Gurdev Kaur there is no other legal heir of Jora Singh deceased. On the basis of his statement and statements of other witnesses, Succession certificate in respect of the fixed deposits in the name of Jora Singh was granted in favour of Har Kaur alias Gurdev Kaur. Nirmal Singh admittedly constituted Hindu joint family with Mal Singh and in spite of that admission made by Nirmal Singh and the succession certificate has been ignored by both the Courts below on flimsy grounds. Not only this Nirmal Singh again sworn affidavit, copy of which is Ex.D-9 in which it is mentioned Har Kaur alias Gurdev Kaur widow of Jora Singh is her aunt. This document has also been ignored by the trial Court. Even the admission made by Mal Singh regarding the relationship of Har Kaur alias Gurdev Kaur with Jora Singh has been ignored by both the Courts below. Surata Singh, Darbara Singh and Hari Singh filed an application for redemption of land measuring 12 biswas 10 biswas which was mortgaged by them through mortgage deed dated 23.6. 1995 for a consideration of Rs.18,000/- in favour of Mal Singh RSA No.2571 of 1994 14 and Jora Singh deceased. Gurdev Kaur was arrayed as respondent in that petition along with Mal Singh. Ex.P-8 is the copy of application. In para No.4 of the application Ex.P8, it has been mentioned that respondent i.e. Har Kaur alias Gurdev Kaur and Mal Singh are the mortgagee whereas Surata Singh etc. are the mortgagors. Mal Singh filed reply of that application which has been proved on file as Ex.D-7. Para No.4 of the petition wherein it has been mentioned that respondent Har Kaur alias Gurdev Kaur and Mal Singh are the mortgagees of the property, has been admitted by Mal Singh. In spite of the admission made by Mal Singh regarding the relationship of Gurdev Kaur with Jora Singh, the suit of the plaintiffs has been decreed. The other documentary evidence which is of quality in nature and cannot be manipulated has been ignored. 28. Ex. D-1 is the voter list of village Manak Majra, where the parties are residing. At Sr. No.195 of Ex.D-1 Mal Singh is voter in house No.66. In the same house at Sr.No.196 Gurdev Kaur has been shown as voter. Nirmal son of Mal Singh has been shown as voter at Sr.No.197 in the same house. This voter list is for the year 1980. In Ex.D-2 voter list for the year 1975-76 again appellant has been shown to be wife of Gurdev Singh. 29. Mal Singh plaintiff has