MUSAMMAT LILAWATI KUAR Vs. CHOTTEY SINGHA ND ORS

JUDGEMENT

(1.) This appeal relates to an estate in the district of Aligarh, known as the Kora Estate. The plaintiff same into Court on the allegation that she is the widow of the last male holder, who died some time in 1908. Her alleged husband, Bijaipal Singh, admittedly died a minor aged about 14 it is also admitted that Bijaipal Singh was adopted by the widow of Sukhram Singh in 1895. Sukhram Singh was really the undisputed last male holder of the estate in dispute. Subsequent to the adoption of Bijaipal Singh there was a dispute between him and the sister s sons of Sukhram Singh who challenged the adoption. The ease was fought up to the High court and Bijaipal Singh s adoption was upheld. The case is reported as Jai Singh v. Bijai Pal Singh A.W.N. (1905) 20 : 27 A. 417 : 2 A.L.J. 36 About five days after the adoption of Bijaipal Singh his adoptive mother, Laohmi Kunwar, died on the 3rd of August 1895. After her death the natural father of Bijaipal Singh looked after the person and property of his minor son. Bijaipal Singh since his adoption lived at Kora Ruatampur, whish is in the district of Aligarh, His natural father s village was Barai in the district of Etah where all his natural paternal family resided. In the family of his natural father the only person we need mention here is Sher Singh, the younger brother of Raghubar Singh and the untie of Bijaipal Singh. Bijaipal Singh died on the 27th of January 1908 On the 29th of January 1908 an application was made in the name of one Musammat Lilawati by Raghubar Singh, the natural father of the deceased minor, in the Revenue Court, asking for mutation in favour of the applicant on the allegation that she was the widow of Bijaipal Singh. Notices were issued on the application and objections were filed on the 10th of February 1908 and on the 19th February 1908 by the collaterals of Sukhram Singh, that is to say, two sets of objectors filed two sets of objection. The objectors denied that the applicant was the widow of Bijaipal Singh and further stated that the latter had died a bachelor and unmarried. It was Lalc alleged on behalf of the objectors that the applicant s real name was Mutammat Gango, who was the younger daughter of Bhawani Singh and was married to one Shaitan Singh alias Sultan Singh of Barai. Bjth parties, namely, the appellant and the objectors, gave evidence before the Revenue Court. The learned Assistant Collector, after considering the evidence, come to the conclusion that Bijaipal Singh had died a bachelor and unmarried and that the applicant was not his widow. He accordingly allowed mutation of names in favour of some of the objectors, that is to say, those who were the next reversionary of Bijaipal Singh The order of the first Court was confirmed by the collector with regard to the rejection of Lilawati s application. The dispute between the objectors themselves continued up to the Board of Revenue, During the mutation proceedings chhote Singh, Nain Singh and Desraj sold three-quarters of the estate to Babu Kalyan Singh and his two sons on the 24th of April 1908 by a registered deed of conveyance. Raghubar Singh died some time in 1910. On the 21st of Mareh 1912 an application was made by the present plaintiff, through Bhawani Singh as her guardian, asking for permission to sue in forma pauperis. It was represented to the Court that the plaintiff was a minor and that Bhawani Singh was her natural father. She imploded as defendants to her application and to her intended suit the successful objectors in the mutation case and their transferees, as also some other collaterals of Sukhram. The application was opposed on behalf of defendants on several grounds. They alleged that the applicant was not a minor, that she was not the widow of Bijaipal Singh and that she was the elder daughter of Bhawani Singh, whose real name was Musammat Kalavati and who really was the widow of Raghubar Singh. The application was withdrawn on the 16th of August 1912. On the same day a fresh application in forma pauperis was made by the plaintiff, but this time she applied and sued as a major. The application was filed on her behalf by Counsel, Mr. Udebir Singh. The application was struck off in default. A third application was made on the 5th of January 1914 together with a pLalnt. Evidence was taken by the Court with regard to the allegation of poverty, and after carefully considering the matter the Court of first instance allowed the plaintiff to sue in forma pauperis. The order of the lower Court is dated the 3rd of August 1915. After permission to the plaintiff to sue as a pauper the defendants were called upon to put in their defence. They urged various pleas, but the most important and in fact the only one with which we are concerned here was their denial of the marriage of Bijaipal Singh with the plaintiff or with any other woman. They said that he had died a bachelor and unmarried and that the plaintiff was really Musammat Kalavati, the step mother of Bijaipal Singh and the widow of Raghubar Singh, who was trying to get the estate on a false allegation. Both parties give considerable evidence in support of their allegations. The greater part of evidence consists of oral evidence. The learned Judge in a well-considered judgment came to the conclusion that the plaintiff had failed to prove that she was the widow of Bijaipal Singh. In fact she had failed to prove that Bijaipal Singh was ever married, He accordingly dismissed the claim. In appeal to this Court the plaintiff challenges the decree against her.

(2.) Practically the grounds of appeal reduce themselves to two objections, which have been urged before us by the learned Counsel for the plaintiff appellant. The first and the foremost is that the evidence on the record proves that the plaintiff is the widow of Bijaipal Singh, and the second is said to be a legal and technical objection to the effect that the Judge who wrote the judgment was function officio at the time he wrote it and, therefore, there is no legal judgment in the case at all. We will first of all direct our attention to the first issue in the case, namely, whether Bijaipal Singh was married to the plaintiff. We would observe here that the learned Counsel for the plaintiff-appellant in addressing us said that he would first put before us the evidence of the most important witnesses for him and that if he found that their evidence made no impression upon us and that we were not prepared to act upon their evidence or believe it, he would not take up the time of the Court by reading the evidence of other minor witnesses. We think the line of argument adopted by him was quite correct and we therefore proceed to consider the evidence put before us and discussed by the learned Counsel for the plaintiff- appellant. He divided the evidence into two classes, namely, oral and documentary. The latter evidence consists only of six documents. Two of the documents are said to be account-books kept in the lifetime of Bijaipal Singh by the servants of the estate. They purport to be dated Sambat 1960 corresponding to the English year 1903. The ease for the plaintiff is that she was married to Bijaipal Singh some time between the 12th and 14th June 1903. The account- books are put in to show that they contain the expenses of the marriage of Bijaipal Singh. One witness was examined to prove the entries in the books, namely, Hoti Lal. Reliance was also plated on the statement of Baghubar Singh made in the mutation case. The other three documents are three entries in the diaries of three Patwaris. The patwaris were not examined in this case, but they were examined in the mutation proceedings and their statements by consent of parties and in fact the whole of the evidence in the mutation Base by consent of parties were read as evidence in this case in the Court below. The account books, when examined closely, do not carry conviction, If the allegation of Baghubar Singh were correct that the account-books were written by the servants of the estate and whatever amount was spent or received at the time of the marriage of Bijaipal Singh was entered in the books, the persons who are said to have sent in notes ought to have been produced with their own books. Some of them were produced, who merely stated that they sent neotas and had been present at the alleged marriage but who did not produce their books. Moreover, it is admitted by the plaintiff in her evidence that her gauna took plane three years afterwards, that is to say, some time in 1906. There were no books containing the gauna expense produced by Baghubar Singh in the mutations case or by the plaintiff in the present case. Some of the persons, whose names are, entered in the account books in question as those who had either paid or sent in neotas presents at the time of the marriage of Bijaipal Singh, have been examined on behalf of the defence. They are men of better social status and of higher standing than the men produced for the plaintiff. The defence witnesses, one and all, not only deny having sent in neotas but also say that Bijaipal Singh was not married at all. One of the witnesses for the plaintiff says that there was a mahfil at the time of the marriage, that is, a dance. We find no account of the expenses of a mahal in the account books filed for the plaintiff (vide deposition of Ram Chandra Singh at page 31 A). It is also in evidence on behalf of the plaintiff that in any case there was a mimic present at the marriage. We find no item in the account-books relating to the payment to any mimic. In fact, as we have said above, if each item was to be closely examined, one would find that the accounts were not the accounts of the estate of Kora kept by the servants of Bijaipal Singh in his lifetime, but probably were made up in a hurry for the purpose of the mutation case. As to the accuracy of the entries in the Patwaris diaries, the Patwaris themselves stated that they had no personal knowledge. The entries were that Bijaipal Singh had died leaving a widow, Muiammat Lilawati, The Patwaris stated that they had made this entry on information received. Presumably the information was given by or at the instants of Raghubar Singh, who immediately after the death of his natural son put forward a woman, sailing her by the name of Lilawati, as the widow of Bijaipal Singh. We do not think it safe to accept either the account-books or the entries in the Patwaris registers as reliable evidence in proof of the fast alleged by the plaintiff that she was married to Bijaipal Singh.

(3.) The learned Counsel for the plaintiff read to ns the evidence of seven witnesses whom he considered the most important and the most reliable in the case. They were the two Lilawatis, Bhawani Singh, Bhudec, Bam Chandra Singh, Hardeo Singh and the statement of Raghubar Singh made in the mutation proceeding. The two Lilawatis examined are daughters of two different persons. One is the daughter of Hansraj Singh and the other describes herself as the daughter of Bhawani Singh. It is the latter who alleges herself to be the widow of Bijaipal Singh and is the plaintiff in the ease. Mutmmtnat Lilawati the daughter of Hansraj Singh says that she is the widow of Raghubar Singh. The defence, on the other hand, say that she is the widow of Sher Singh, the younger brother of Raghubar Singh. The statement of the defence is borne out so far by the evidence of Musammat Lilawati the daughter of Hansraj, that she admits in her cross- examination that she was betrothed to Sher Singh but because the latter was ill she was married to his elder brother, Raghubar Singh, on the date on which she was to be married to Sher Singh. From other evidence in the case on behalf of the plaintiff it would appear that the illness which deprived Sher Singh of a wife was piles. She professes to be the step-mother of Bijaipal Singh. According to Raghubar Singh he married a second wife in 1902. Bijaipal Singh, according to the case for the plaintiff, was not married till 1903. If this witness is the step-mother of Bijaipal Singh, one would expect her to be present at the marriage of the latter. It must be remembered here that the adoptive parents of Bijaipal Singh had died long ago. His adoptive mother had died within five days of his adoption in 1895. The marriage of Bijaipal Singh admittedly took place at Kora. The witness said that she went to Kora two or three years after her marriage. She said that Raghubar Singh, Rafter having married her, left her at Barai where Sher Singh was living and was ill, and went away to Kora. The witness cannot give the name of any of the menial servants of Bijaipal Singh at Kora, though she professes to have lived at Kora with the present plaintiff in the houses of Bijaipal Singh for several years. She cannot mention the name of any woman in Kora, either a member of the family or a stranger. In one place she says that Bijaipal was married five or six years after her marriage. Now her marriage according to Raghubar Singh took place in 1902. Bijaipal Singh must, therefore, have been married, if her statement is correct, in 1907 or 1908, which is not the case of the plaintiff. And if the marriage took place in 1907 or 1908, the gauna must have taken place after the death of Bijaipal Singh. The defence wanted to have the witness examined by a lady doctor and asked her if she would submit to the examination. The witness not only refused but adhered to her refusal. The object of the defence, in getting the witness examined by a lady doctor, was to prove that the witness was really the widow of Sher Singh who had never given birth to any child, whereas the witness cLalmed to have given birth to three daughters by Raghubar Singh. It is not denied on behalf of the defence that the second widow of Raghubar Singh did give birth to three daughters, but they say that her name is Kalavati and that she is the plaintiff in the present case. However, as the witness declined to be examined by a lady doctor, she was not examined and the Court could not make an order as desired by the defence. It is clear from the observations, we have already made, that no reliance can be placed on the statement of this witness either as to the marriage of Bijaipal Singh or as to her statement that she is the widow of Raghubar Singh. On her own statement in the cross-examination it would appear that she is the widow of Sher Singh.