R.S.A. No. 1339 of 1998 1 In the High Court of Punjab and Haryana, at Chandigarh. R.S.A. No. 1339 of 1998 Date of Decision: March, 11, 2008 Smt. Sham Kaur alias Seebo …Appellant Versus Smt. Gurnam Kaur (dead) through LRs and others. …Respondents CORAM: HON’BLE MR.JUSTICE RAJESH BINDAL ***** Present: Mr. G.S.Dhillon, Advocate for the appellant. Mr. G.S.Punia, Advocate for the respondents. RAJESH BINDAL J. The appeal was originally dismissed by this Court vide order dated May 27, 1998. However, in an appeal filed against the order passed by this Court, Hon'ble the Supreme Court remitted the matter back to this Court for re-consideration, after framing substantial questions of law and one amongst them had to be regarding the legal effect of document Ex. D2. 2. I have heard learned counsel for the parties. The appeal is being considered for determination of following substantial questions of law arising therefrom:- “1) Whether the appellant is legally wedded wife of deceased Puran Singh ? 2) Whether document Ex. D2 in the form of affidavit can be considered to be a will executed by deceased Puran Singh in favour of the appellant ? 3. Briefly, the facts as noticed by the learned Courts below are that the respondents/plaintiffs filed a suit against the appellant/defendant for declaration to the effect that respondent No.1 was the legally wedded wife of R.S.A. No. 1339 of 1998 2 deceased Puran Singh and respondents No.2 to 7 were their sons and daughters. Their marriage was solemnised about 40 years before the institution of the suit in February 1991. Deceased Puran Singh was working as Road Roller Driver with the Executive Engineer, Construction Division, PWD (B&R), Ludhiana, who expired on December 25, 1990. After the death of Puran Singh, when the respondents/plaintiffs applied for release of his service benefits such as gratuity, pension, ex-gratia etc. they were surprised to note that in the nomination filled up in the office, the appellant/defendant Sham Kaur alias Seebo had been shown to be his nominee. It was averred in the suit that the plaintiff No.1 was the only legally wedded wife of deceased Puran Singh. He never married the appellant/defendant. In fact, the appellant/defendant was wife of one Safi Singh. 4. The claim made by the respondents/defendants was contested by the appellant/defendant by raising various technical pleas besides on merits. It was submitted that she was the legally wedded wife of late Puran Singh. His marriage with the respondent No.1 was denied by asserting that the marriage with the appellant in fact took place on November 3, 1954 at village Ayali Kalan, in the presence of Santa Singh, Sarpanch, Inder Singh Akali, Bata Singh, Chowkidar, Bachan Singh Mistry, Kala Sunar, Nikkar Singh Mehra, Pandit Jagdish Rai, Member Panchayat, Rattan Singh and Pritam Singh. She had also purchased one plot at Ludhiana on April 2, 1969 showing herself as wife of Puran Singh. Even in the certificate declaring her successful by the Punjab Nursing Council as a Trained Dai, she was shown as wife of Puran Singh. Even in the last days of his life, Puran Singh was taken care of by her and she got him admitted in the hospital and served him and in fact she used to get his pay etc. from the office when he was unable to attend the duty and ultimately all his last rites including bhog ceremony and emersion of ashes at Kiratpur Sahib were performed by her. With these facts the submission is that in fact the appellant is the legally wedded wife of deceased Puran Singh. 5. Heard learned counsel for the parties and also perused the evidence on record referred to by them. 6. To prove her marriage with the deceased Puran Singh, Gurnam Kaur, respondent No.1/plaintiff No.1 produced Pandit Ramji Dass who arranged their phera ceremony. At the time of recording of his evidence, he R.S.A. No. 1339 of 1998 3 was 95 years of age. In my opinion, learned lower Appellate Court below had rightly placed reliance upon his statement to the effect that he had performed marriage of Gurnam Kaur with deceased Puran Singh as at such a late stage in life he was not to gain anything by telling lies. The factum of the marriage of Gurnam Kaur with late Puran Singh was further fortified from the fact that in the records the parentage of the sons and daughters who were born from the wedlock of Puran Singh and Gurnam Kaur, Puran Singh was shown to be their father. This was in the form of registration at the time of birth and also at the time of admission in school. Some discrepancies in the evidence led by Gurnam Kaur could not lead to the conclusion that the case set up by her was false simply for the reason that no one was expected to remember the exact details of any ceremony after 40-50 years of its celebration. 7. The claim set up by the appellant is that she married Puran Singh way back on November 3, 1954 and is legally wedded wife of deceased Puran Singh. To prove the same, writing in the form of Ex. DW3/A has been produced, which is dated November 3, 1954. Besides this even deceased Gurnam Kaur had also not denied the fact that deceased Puran Singh had been living with Sham Kaur alias Seebo since long after deserting her. There is ample evidence on record to prove this fact which is in the form of sale deed Ex. D8 registered on April 2, 1969 where Sham Kaur has been shown as wife of Puran Singh, Mark D/2 is the certificate of registeration for obtaining qualification as trained Dai from Punjab Nursing Registration Council issued on May 23, 1983 showing the appellant to be wife of Puran Singh, Ex. D9/A form of nomination dated November 13, 1984 where the appellant has been shown as wife and nominee of deceased Puran Singh and Ex. D6 copy of register of Gurudwara Patalpuri Kiratpur Sahib Parlok Sidhar Gaye Praniyan De Asthia dated December 12, 1990 wherein the name of person, who had amerced the ashes of deceased Puran Singh was mentioned as Bibi Sham Kaur, Statement of DW5 Rishi Kumar, General Hospital, Sector 16 where the deceased Puran Singh remained admitted from August 10, 1990 to September 6, 1990 and Statement of DW 6 Jasbir Singh Granthi at Gurudwara Patalpuri, Kiratpur Sahib. 8. As discussed above, the factum of Puran Singh living with the appellant is not even denied by Gurnam Kaur, who was his first wife, who admitted that Puran Singh had deserted her. There is nothing on record to R.S.A. No. 1339 of 1998 4 show that any proceedings were initiated by Gurnam Kaur against the appellant or Puran Singh for his having entered into the marriage. The legal bar to contract second marriage came into force with the enactment of Hindu Marriage Act, 1955 on May 18, 1955. In the present case appellant had married Puran Singh before the enactment of Hindu Marriage Act, 1955 when there was no legal bar to contract second marriage which even was not objected to ever by Gurnam Kaur first wife of Puran Singh. Accordingly, it can be held that appellant was legally wedded wife of Puran Singh. 9. Coming to the second question as regards the document Ex. D2 is concerned, the only claim made by learned counsel for the appellant relying upon the document is regarding his service benefits as according to her deceased Puran Singh was not owning any property in his name. Though the document is in the shape of an affidavit but it certainly decide that after his death, Sham Kaur, appellant/defendant and his two daughters will be entitled to all his moveable and immovable property. Even if her relation, as mentioned in document Ex.D2, is ignored, still Puran Singh was entitled to bequeath his properties to anyone. There is nothing unusual found in bequeathing his property to Sham Kaur, appellant/defendant who admittedly, for years together, was serving and taking care of him. 10. Claim of learned counsel for the appellant for release of pensionary benefits to her cannot be considered in the present appeal as the same is not subject matter of dispute. However, she shall be entitled to put her claim to the authorities concerned in that regard and this Court is not expressing any opinion regarding the admissibility of the same. 11. The appeal is disposed of in the manner indicated above. March 11 , 2008 (Rajesh Bindal) Pka Judge R.S.A. No. 1339 of 1998 5 R.S.A. No. 1339 of 1998 6