IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 501 of 2001. Judgment reserved on: 21.5.2008. Date of decision: 22.5.2008. Smt. Kanta ….. Appellant. Vs. Kaushalya Devi …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Ms. Sunita Sharma, Advocate. For the Respondent : Mr. Sanjeev Kuthiala, Advocate. Kuldip Singh, Judge. The defendant is in appeal against the judgement, decree, dated 18.7.2001, passed by learned District Judge, Sirmour District in Civil Appeal No. 229-CA/13 of 2000, confirming judgment and decree dated 28.7.2000, passed by learned Sub Judge Ist Class, Nahan in Civil Suit No. 130/1 of 1999. 2. The facts in brief are that Kaushalya Devi respondent filed a suit for declaration and permanent prohibitory injunction that Man Singh her brother as well as the brother of proforma defendant Sarswati Devi had died on 25.9.1993, he left no issue and wife at the time of his death, she and proforma defendant are owners in possession of property left behind by Man Singh. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 3. It has also been pleaded that respondent and proforma defendant had applied for succession certificate after the death of Man Singh, which was granted in their favour. The respondent submitted said succession certificate to Branch Manager, Punjab National Bank, Banethi, but the respondent was told that appellant Kanta had also obtained succession certificate claiming herself to be the widow of Man Singh. On these grounds, the respondent has pleaded that cloud has cast over her rights qua the property which came to her from Man Singh, therefore, she filed the suit. 4. The appellant contested the suit and took preliminary objections of maintainability, locus-standi, collusion and valuation. On merits, she has pleaded that after the death of her previous husband Netar Singh, she performed marriage with Man Singh as per Hindu rites and customs on 13.4.1991. She has pleaded that succession certificate was granted in her favour on 9.12.1997. She being the widow of Man Singh is entitled to inherit the estate left by Man Singh at the time of his death. The learned Sub Judge, vide judgment dated 28.7.2000, returned the findings that no marriage took place between Man Singh and appellant Kanta. The succession certificate Ex. DW 1/B dated 9.12.1997 seems to have been obtained by misrepresenting true facts, inasmuch as respondent and proforma defendant were not impleaded as party in the proceedings for obtaining succession certificate. The succession certificate Ex. PB in favour of respondent and proforma defendant was already granted on 27.2.1997. The decision dated 28.7.2000 was assailed by the appellant Kanta before the learned District Judge, who dismissed the …3… appeal on 18.7.2001, hence appellant Kanta is in second appeal before this court. The proforma defendant Sarswati Devi, who was respondent No. 2 in the present appeal had died during the pendency of the appeal and her name was ordered to be deleted without bringing on record her legal representatives. The question of maintainability and abatement of appeal in absence of legal representatives of proforma defendant Sarswati Devi was left open by this court when order of deletion was made on 21.10.2005. 5. The appeal was admitted on the following substantial questions of law:- 1. Whether the courts below failed to apply the principle of factum valet quoad fieri non debuit (sic) which is fully applicable in the facts and circumstances of the case when the marriage stood proved and appellant is to be treated as widow of Man Singh entitled to inherit his estate? 2. Whether the courts below have failed to appreciate document Ex. DW 2/A Marriage Certificate and Ex. DW 1/B succession certificate? 6. I have heard Ms. Sunita Sharma, learned counsel for the appellant, Mr. Sanjeev Kuthiala, learned counsel for the respondent and gone through the record. It has been submitted on behalf of the appellant that two courts below have not properly appreciated the material on record. The marriage of appellant with Man Singh was held on 13.4.1991 and the same has been proved, both lived as husband and wife. The appellant has proved herself to be the legally wedded wife of Man Singh and after his death she is entitled to inherit …4… the property left by Man Singh. It has been submitted that Ex. DW 2/A writing dated 13.4.1991 and succession certificate Ex. DW 1/B dated 9.12.1997 have not been properly appreciated by the courts below. The learned counsel for the respondent has submitted that the two courts below have returned a finding of fact that appellant Kanta was not married with Man Singh. Ex. DW 2/A is a highly suspicious document and it has been rightly rejected by the two courts below while returning the finding that no marriage took place between the appellant and deceased Man Singh. Ex. DW 1/B is also not binding on the respondent, inasmuch as, appellant in the proceedings for obtaining succession certificate did not disclose the fact that respondent and original proforma defendant have already obtained succession certificate Ex. PB, the succession certificate Ex. DW 1/B has been obtained by misrepresenting the facts. Therefore, the succession certificate Ex. DW 1/B has been rightly rejected by the courts below while coming to the conclusion that appellant Kanta is not the legally wedded wife of deceased Man Singh. Substantial questions of law No. 1 & 2. 7. The substantial questions of law No.1 & 2 are interconnected, therefore, both of them are being taken up together for disposal. The maxim mentioned in substantial question of law No.1 is “factum valet or quod fiere non debet, factum valet” which means fact cannot be altered though it should not have been done. The applicability of this maxim in the facts of the present case has not been elaborated nor explained how the maxim is applicable in the present case. This apart, DW 1 Kanta in her statement has stated …5… that a writing mark D-1 was prepared at the time of her marriage with Man Singh and on that writing her signatures are Ex. DW 1/A. At the time of her marriage, her brother, Ujjager Singh and her maternal grand father were present. The marriage was performed by Pandit Jai Gopal in the temple. In the end of her examination-in-chief, she has stated that name of her maternal grand father is Bir Singh. In cross-examination, she has admitted that earlier she was married to Netar Singh. She has also stated that she got the job of water carrier two years back at Banethi school and for that she had shown herself to be the widow of Netar Singh. The statement of Kanta was recorded on 10.3.2000. In other words, in the year 1998 she had shown herself as widow of Netar Singh. She has also stated that in ration card, Panchayat and voters list, she has nowhere shown herself to be the widow of Man Singh. It appears from her statement that according to her, her marriage was performed in a temple near military ground, Nahan. DW 2 Jai Gopal has stated that Ex. DW 2/A, which was earlier marked as D 1 was written by him. There were five persons at the time of marriage, namely, DW 2 himself, Man Singh, Kanta, Ujjager Singh and Bir Singh. In cross-examination, he has stated that he has not maintained any register for performing marriages. PW 4 Narinder Kumar is the Pujari of M.E.S., Mandir Kacha Tank, Nahan since 1990. He has denied the suggestion in the cross examination that on 13.4.1991 Jai Gopal performed the marriage of Kanta and Man Singh in M.E.S. temple. This witness has specifically stated that solemnization of marriage is not allowed in the temple. However, since 1997 with due permission, reception of …6… marriage in the compound of the temple is permissible. PW 4 has stated that he knew DW 3 Jai Gopal and Jai Gopal is not conversant with performing marriages, he only knows witchcraft. It is strange that photographs of the alleged marriage were not taken. The marginal witnesses of the writing Ex. DW 2/A have not been examined. 8. The learned counsel for the appellant has submitted that Kanta and Man Singh lived together as husband and wife and, therefore, there is a presumption that they were duly married. This presumption is not available in the present case, inasmuch as, here the appellant has come forward with a specific case that she married with Man Singh on 13.4.1991, which fact she could not prove by leading cogent evidence. The succession certificate Ex. DW 1/B dated 9.7.1997, is also of no help to the appellant, inasmuch as, in the proceedings of this succession certificate the respondent and original defendant were not impleaded as parties. Hence, Ex. DW 1/B is not binding on respondent, in addition to this, succession certificate to the legal heirs of Man Singh was already granted in favour of respondent and original proforma defendant on 27.2.1997 vide Ex. PB. There is force in the submission of the learned counsel for the respondent that two courts below have recorded a finding of fact that Kanta appellant was not married with Man Singh, and, therefore, she is not entitled to inherit the estate of Man Singh after his death, which took place on 25.9.1993. The appellant has failed to prove her case on merits, therefore, I am not going into the question of maintainability and abatement of appeal in view of death of original proforma …7… defendant No.2 and for not bringing on record of the appeal her legal representatives. The appellant has failed to make out any case for interference. The substantial questions of law No. 1 and 2 are decided against the appellant and in favour of respondent. 9. No other point was urged. 10. As a result of the above discussion, the appeal fails and the same is accordingly dismissed with no orders as to costs. May 22, 2008. ( Kuldip Singh ) (Hem) Judge.