MST. KANTA DEVI Vs. MST. LAJWANTI AND ORS.

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in this second appeal:-

(2.) The defendant, who was ordered to be ejected by the appellate Court decree, is in second appeal. The suit for ejectment was filed at the instance of plaintiffs as heirs of deceased Lajpat Rai. The defendant claimed herself to be the widow of Lajpat Rai. The plaintiffs were the sisters and they had a contention that Lajpat Rai had been married only to Parsini Devi and the defendant had joined his company even during the lifetime of the first wife and she was, therefore, not a heir at law. The plaintiffs principally relied on Ex.P2-a document to which the defendant was admittedly a party describing herself as wife of one Dev Raj and the written statement already filed by the defendant admitting her alleged marriage to Lajpat Rai as having taken place 8 years prior to the statement while admittedly Lajpat Rai's first wife had died later on 06.09.1974, evidenced through P5. The trial Court examined the issues by raising three questions: (i) whether the defendant had been the wife of Dev Raj; (ii) whether the marriage was dissolved in order that she could be lawfully married to Lajpat Rai; and (iii) whether the first wife was alive at the time when the defendant was married to Lajpat Rai. Adverting to P2, the Court held that although the defendant had admitted to the thumb-impression found in the document, it was merely a statement relating to some accounting for income from 50% share from property that a person by name Boota Singh held and the document cannot be determinative of the marital status of the defendant to Dev Raj. Raising question of whether the defendant had been shown to have been married to Lajpat Rai even during the lifetime of the first wife, the Court reasoned that the most competent person Chet Ram as PW2, who was the brother of Parsini Devi, the 1st wife of Lajpat Rai was not prepared to state that the defendant was married even during the time when his sister was alive. On the other hand, he had merely denied knowledge as to when she was married to Lajpat Rai. The appellate Court reversed the finding and held that the defendant's admissions were clearly damning her defence and her own statement that she had been married 8 years earlier, cannot simply be discarded to allow for a plea brought belatedly through an amendment to the written statement to contend that she had been married some time in May, 1975 i.e. after the death of the 1st wife in 1974. To him, the admission was the most key element to find that the defendant was not a lawful wedded wife of Lajpat Rai to claim as an heir to him and exclude the sisters, who were otherwise the heirs of Lajpat Rai.

(3.) The status of the defendant as a wife of Lajpat Rai was an issue that placed the onus of proof only on the defendant. The plaintiffs' status as sisters is not denied nor is the fact that Lajpat Rai had a wife by name Parsini Devi, who died on 06.09.1974, denied in Court. While a long cohabitation will give rise to a presumption of marriage, a person, who is shown to have been already married to yet another person and that too lawfully, there is no presumption that can be raised that the second wife was taken after the death of the first wife. It is essentially a matter of proof of a fact which a person asserting to such status must establish. In this case, therefore, when the defendant was contending that she was the wife, who was married to Lajpat Rai after the death of his wife, she ought to have brought proof of her marriage. In this case, witnesses were examined on the plaintiff's side, one of whom a resident of the village who stated that he had seen the defendant in the house of Lajpat Rai even during the lifetime of the first wife. There was simply no attempt to prove the marriage of the defendant by any independent witness, who could have attended the marriage and who had known that Lajpat Rai took the defendant as his wife through a lawful form of marriage after the lifetime of his first wife. The trial Court was looking for proof from the plaintiff and how plaintiff's witness PW2 was not in a position to deny whether the defendant was married to Lajpat Rai. This manner of looking for proof was clearly wrong and correctly set aside by the appellate Court.