RSA No.2600 of 1980 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2600 of 1980 (O&M) Date of Decision: 18.11.2011 Smt. Shanti widow of Havaldar Lal Chand, resident of Pooth Khurd, Delhi State. ... Appellant Versus Baljeet Singh son of Lal Chand son of Mangat Ram alias Mangtoo, r/o Mohalla Jatwara, Sonepat and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Ms. Alka Sarin, Advocate for the appellant. Mr. Vikas Bahl, Advocate, for the respondents. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? NO 3.Whether the judgment should be reported in the digest? NO K. KANNAN, J. (Oral) 1. The appeal is by the defendant, who successfully defended the action at the trial Court and obtained a dismissal but the judgment in the appeal against the trial Court was reversed. The contest was between the plaintiff, who claimed as the sole heir to his father Lal Chand and the defendant who contended that she was the 2nd wife of Lal Chand and was a co- heir with the plaintiff. The appeal was on the truth of the contention of the defendant that she had been married to Lal Chand after the death of his first wife. Evidently, the burden was on the defendant to establish that there was such a marriage. RSA No.2600 of 1980 (O&M) [2] 2. The trial Court relied on the oral evidence of witnesses, who spoke about their alleged presence at the time of marriage of the defendant with Lal Chand in the year 1948/1949. Out of the witnesses, DW-3 claimed to be the nephew of Lal Chand, DW-4 was the Nambardar of the Village, who used to call Lal Chand his uncle and DW-5 Tara Chand stated that she was the daughter of his uncle Bhartu. DW-6 was also a relative through the defendant's father. Apart from the oral evidence before the trial Court, the defendant relied on arrears of pension alleged to have been claimed by the defendant in the year 1973 and received by her before suit. The trial Court dismissed the plaintiff's suit. 3. This trial Court judgment was upset by the Appellate Court by reappraisal of the oral evidence tendered by the parties of each one of the defence witnesses, which was relied on by the trial Court. The Appellate Court found reasons to disagree with the witnesses of the defendant and characterized them as unworthy. It was stated that the plaintiff had a fight earlier with DW-3 at the marriage ceremony and hence not reliable. DW-4 was the Nambardar, who was not on visiting terms with the plaintiff. DW-5 and DW-6 were relatives through the defendants parents and not reliable witnesses. The appellate Court observed that the most crucial witness was the brother of Lal Chand himself, who stated that Lal Chand did not marry the defendant at all. The Appellate Court also took serious exception to the conduct of the defendant in the brazenness of denial that properties had not been obtained on mutation from the property that originally stood in the name of Ram Singh, who was admittedly, the defendant's husband. This document was said to be later explained by the defendant by saying that as soon as she came to know that the mutation had been made RSA No.2600 of 1980 (O&M) [3] in respect of properties of Ram Singh, she had the same transferred back to Ram Singh's mother. This came subsequent to the initial denial when the plaintiff produced the document that in the mutation proceedings, the properties of Ram Singh had come to her as his heir. The counsel for the plaintiff would also point out that even in the alleged subsequent transfer of entries in the name of Ram Singh's mother, she has described herself only as a widow of Ram Singh. Significantly, Lal Chand himself had nominated only his father as his heir to claim pension, which was most unlikely if he had been married to the defendnat. 4. If the issues were to be decided only on pure appreciation of fact whether the Appellate Court could have discarded the trial Court's appreciation of witnesses then, unless the Appellate Court's appreciation itself is shown to be perverse, it cannot be modified in second appeal. Again if on appreciation of oral evidence, some evidence had been omitted to be considered or if some evidence was misinterpreted by the trial Court, it should become possible for the High Court examining the second appeal to correct such error. I do not find any error in reasoning of the Appellate Court. 5. If a point of law were to be canvassed at all, it is whether there was a failure of the Courts below to draw an appropriate inference from a long cohabitation. The fact of long cohabitation, itself will make possible a presumption of marriage. This presumption attaches itself between adults, who are not previously married. In this case, Lal Chand had a first wife but said to have died. The defendant was said to have been already married to yet another person Ram Singh but he had also died. There is no presumption in law that a widower and widow, who have lived together, have married again. In this RSA No.2600 of 1980 (O&M) [4] case there is not even unimpeachable reliable evidence that the parties resided together as husband and wife and the society recognized them as such. If we must uphold the contention only on the basis of a presumption then, such presumption does not avail to the defendant. 6. The judgment passed by the lower Appellate Court is confirmed and the second appeal is dismissed. NOVEMBER 18, 2011 ( K. KANNAN ) Rajan JUDGE