HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 377 of 2000 Reserved on: 20.8.2010 Decided on: 22.9.2010 Chet Ram ………Appellant/defendant. Versus Mohan Lal and another ………Respondent/plaintiffs Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Mukul Sood, Advocate, Vice Counsel. For the respondents: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 21.6.2000, passed by the learned District Judge, Kullu, H.P., vide which he dismissed the appeal filed by the appellant/defendant and affirmed the judgment nad decree of the court of the learned Sub Judge Ist Class, Manali, dated 16.1.1999, decreeing the suit of the plaintiff for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that the respondents, hereinafter also referred to as the plaintiffs, filed a suit for declaration with consequential relief of injunction as against the appellant, hereinafter ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - referred to as the defendant. It was alleged by the plaintiffs that they are owners in possession of the suit land to the extent of their share. It was further alleged that the land in suit originally belonged to Udhu, son of Nand Ram, who had two sons, namely, Lihetu and Chet Ram. Lihetu predeceased his father Udhu. Smt.Giru was the wife of Lihetu. Udhu was owner in possession of the land in suit and after the death of Lihetu, Smt.Giru developed some sort of illicit relation with Chet Ram, defendant, and out of this unholy alliance, plaintiffs and Bimla were born and Bimla died unmarried. Plaintiffs claimed that since their mother Giru was the widow of the predeceased son of Udhu, as such, a mutation dated 18.1.1970 was rightly attested in favour of their mother and Chet Ram in respect of the estate of Udhu Ram, after his death. They further alleged that after the death of Smt.Giru, her estate including the suit land devolved upon the plaintiffs and Smt.Bimla in equal shares. After the death of Bimla, they being her brothers were entitled to succeed to her 1/3rd share in the suit land. They further alleged that the defendant in connivance with the revenue officials, illegally got attested mutation No.2847, dated 15.1.1972 and mutation No.5221, dated 29.4.1993, in respect of the estate of Bimla Devi in his favour and they are not bound by these illegal entries. They also further impugned the order passed by the Collector in appeal of upholding the order of mutation. They alleged that they are owners in possession to the extent of their share and are entitled to be declared as lawful owner in possession of the suit land to the extent of 1/2 share and they also prayed for the relief of injunction alongwith the relief of declaration. 3. The defendant admitted that Lihetu was also the son of Udhu and Smt.Giru was his wife. However, he pleaded that after the death of his brother Lihetu somewhere in the year 1952, he contracted marriage with - 3 - Smt.Giru and out of this wedlock plaintiffs and Bimla, since deceased, were born. Thus, he claimed that Smt.Giru was not widow at the time of death of Udhu, his father, and as such she was not entitled to succeed to the estate of Udhu. He also claimed that the sanctioning of mutation in his favour and Smt.Giru in equal shares in the year 1970 was illegal and rather mutation should have been sanctioned exclusively in his favour. He claimed himself to be the owner in possession of the entire estate of Shri Udhu and after the death of Bimla, being the only legal heir as her father, was entitled to succeed to the estate of Bimla and the mutation in favour of the plaintiffs in this regard was wrong and illegal. 4. On the pleadings of the parties, the issues were settled by the learned trial Court. The parties led their evidence and the learned trial Court vide its impugned judgment held that after the death of Udhu, the property was inherited by Smt.Giru, widow of Lihetu and another son of Udhu, namely, Chet Ram, defendant, in equal shares. After the death of Smt.Giru, the property had to be inherited by her two sons and Bimla. Defendant Chet Ram had failed to prove his second marriage with Smt.Giru after the death of her husband Lihetu and as such the plaintiffs were rightly entitled to the estate of Smt.Giru. After the death of the sister of the plaintiffs, namely, Bimla, Chet Ram who was not proved to be the father of Bimla, being her only legal heir, they were entitled to her share also equally. Accordingly, the suit for declaration and permanent injunction was decreed. 5. On appeal, those findings were affirmed by the learned District Judge, hence the present second appeal filed by the defendant. 6. I have gone through the evidence on record and heard the submissions made by the learned counsel for the parties. The submissions made by the learned counsel for the appellant were mainly that since Ceht Ram and - 4 - Smt.Giru had been living together for a sufficiently long time, the presumption is that Smt.Giru was the wife of Chet Ram and not his concubine. The presumption, as submitted, was more in favour of a valid marriage and as such defendant was entitled to succeed to the estate of Bimla also and after the death of Udhu, Smt.Giru, who was not a widow at that time, being his wife, he was entitled to the property in full. 7. For better appreciation of the evidence, the relationship of the parties may be reflected by way of a chart as under: Udhu Lihetu (son) Chet Ram (son) Died earlier defendant. Giru (wife) Mohan Lal Jeet Ram Bimla (already dead) 8. On appraisal of the judgment passed by the learned trial Court, it is clear that the learned trial Court had properly discussed the oral as well as documentary evidence led by both the parties. It has also come up on record that according to the custom prevalent in the area, which applied to both the parties, in case of marriage of a widow, the best proof is a document, which is executed at the time of such a marriage. The learned trial Court has made a reference to the said custom in the judgment. Defendant in his own statement has clearly admitted that no document of second marriage was executed at that time which could have been the best proof of the second marriage having been performed by Chet Ram, defendant, with Smt.Giru, wife of his brother Lihetu. - 5 - Moreover, it was not pleaded by the defendant that he was already having a wife, namely, Nimmo and had five children from her, but this fact came during the cross examination of Chet Ram that he had a living wife and having five children out of this wedlock. He neither pleaded nor proved that he performed the marriage with Smt.Giru after the death of his first wife or performed the second marriage after the passing of the Hindu Marriage Act in 1956 and once he had performed this marriage, when he already had a living wife and there was no document executed as per the custom, the marriage in question cannot be said to have been proved legally. The only inference that can be drawn is that Smt.Giru was the concubine of the defendant and from the defendant’s alliance, three children were born who were the plaintiffs and Bimla. 9. The learned counsel for the appellant had relied upon the following decisions to show that in case there is a long standing relationship and when the persons have been living together and cohabiting for number of years, the presumption is in favour of the marriage. 10. Reliance was placed upon the decision in S.P.S. Balasubramanyam versus Suruttayan alia, Andali Padayachi and others, AIR 1992 Supreme Court 756. It was held therein that the presumption is in favour of the marriage when a man and a woman have been living under the same roof and cohabiting for a number of years. Presumption that they live as husband and wife arises. It was held that the presumption was not destroyed by the circumstance and evidence proved in the instant case. The children born to them cannot be held to be illegitimate. 11. Reliance was also placed upon the decision in Raghuvir Kumar (minor) by next fried and Mother Smt.D.P. Kamlakumari and another versus Smt.Shanmughavadivu and others, AIR 1971 Madras - 6 - 330. It was held in that case that long cohabitation of 15 years as husband and wife, presumption is in favour of a valid marriage. Recognition as husband and wife by family members, other relatives and society, strong presumption in favour of a valid marriage arises. Existence of previous wife is not sufficient to rebut presumption when second marriage is not prohibited by law. 12. It is true that in case of long standing relationship as husband and wife in between a man and a woman, the presumption is in favour of the valid marriage until rebutted by other evidence. In the present case, this presumption cannot be drawn in favour of the defendant in regard to a valid marriage when he admits the custom prevalent in the area, the manner in which the marriage is to be performed, i.e. by execution of a stamped deed and his own admission is that no deed was executed at the time of alleged marriage in between him and the widow of his brother. This also assumes significance since the law did not permit him to perform marriage second time when his first wife was alive as per the Act passed in the year 1956. There is nothing on the record to show that this marriage was performed prior to 1956, or a deed was executed as required under the custom and as such this presumption of valid marriage cannot be drawn. There is no statement of the relatives or other persons to prove that they were living as husband and wife after the performances of the second marriage and as such the learned trial Court by writing a detailed judgment had rightly concluded that the presumption of second marriage cannot be drawn in favour of the defendant. This evidence was properly discussed and appreciated by the learned District Judge and he had affirmed the findings so recorded by the learned trial Court. There is nothing on the record to show that these findings were incorrect for any reason whatsoever and those concurrent - 7 - findings of both the courts below cannot be reconsidered again by referring to the evidence. 13. The appeal was admitted on four substantial questions of law. But there is nothing on the record to show that these questions make out a case for reappraisal of the evidence, though I have gone through the evidence, both oral as well as documentary, and I am of the opinion that both the courts below had come to a right conclusion and as such these findings do not call for an interference by this Court. 14. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court that the defendant was not entitled to the share of Bimla, his illegitimate daughter, and this share was to be inherited by the plaintiffs being her brothers and granting the relief of declaration in their favour in regard to their share to the extent of 1/2 in the total property of the predecessor-in-interest Udhu, do not call for an interference by this court and such those findings are liable to be affirmed. 15. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. However, the parties are left to bear their own cost. Sept.22, 2010. (V.K. Ahuja), (TILAK) Judge.