JOGINDER KAUR Vs. BALBIR KAUR

JUDGEMENT

(1.) THE sole question for decision in the Regular Second Appeal filed by the plaintiffs is whether Shrimati Balbir Kaur defendant-respondent No. 1 had been lawfully married to Attra deceased; a proclaimed offender who died in an encounter with the police on 12-4-1961 (vide entry in the register of deaths Exhibit p-4) and whether Balbir Kaur's son, Joginder Singh defendant-respondent No. 2 who was born more than seven months after Attra's death and had been conceived during the wedlock.

(2.) SHRIMATHI Balbir Kaur was previously married to another fugitive from law, namely, Harnam Singh and the averment made by the plaintiff-appellants in paragraph 2 of their plaint that he had also been killed in a police encounter had not been controverted by the respondents in their written statement. The date of harnam Singh's death is, however, not ascertainable from any material on record and it not known as to what was the interval of time between the two police encounters and whether the period was long enough for Shrimati Balbir Kaur to have contracted another marriage and to have lived with the second fugitive from law so very openly and peacefully and that the living together could have received enough publicity for every one to have treated the two as husband and wife, or that the disputed marriage between Balbir Kaur and Attra could be taken to have proved by long cohabitation as husband and wife. The trial Court had decreed the suit filed by the plaintiff-appellants for declaration of title or in the alternative for possession of Attra's land on the finding that Balbir Kaur had failed to prove her marriage with the deceased and that plaintiff No. 1 as the sister and plaintiffs Nos. 2 to 8 as the children of a pre-deceased sister of Attra were entitled to succeed to his property. The lower appellate Court had, however, set aside the judgment and decree of the trial Court on an appeal filed by the defendant-respondents and had dismissed the plaintiff appellants' suit. Reliance had mainly been placed by the lower appellate court on an entry in an illiterate Chowkidar's register about the birth of Joginder Sing who was described in that entry as the son of Attra Singh.

(3.) THE trial Court's view that the birth entry in the illiterate Chowkidar's register, who had asked some unknown person to make it, was not admissible in evidence is supported by a ruling of the Supreme Court in Brij Mohan Singh v. Priya Brat narain Sinha AIR 1965 Supreme Court 282. Their Lordships observed that the high Court had been right in that case in holding that the entry made in an official record maintained by an illiterate Chowkidar to some on else's request does not come within Section 35 of the Indian Evidence Act. The entry was not shown to be admissible under any other provision of that Act. The entry was, therefore, left out of consideration even on the question of the date of birth.