MT RAM DULARI Vs. DEO NARAIN

JUDGEMENT

(1.) This appeal arises out of suit No. 680 of 1930, which was instituted by Deo Narain under the guardianship of his father, Raja Ram. The suit was for a declaration that Mt. Ram Dulari was the plaintiff's wife. He impleaded as defendants Mt. Ram Dulari herself and also one Ram Narain under the guardianship of his father Bisheshar, Bisheshar himself, Mt. Ram Dulari's grand mother, Mt. Sona and two other persons, by name Mahabir and Ram Khilawan. Another suit, suit No. 557 of 1930, had been instituted by Ram Narain under the guardianship of his father. The record of that suit and of the subsequent appeal is not before me, but I am informed that it was a suit for a declaration that Mt. Ram Dulari was the wife of Ram Narain and for an injunction against other defendants in the suit-who, I am told, were Mt. Sona, Deo Narain, Deo Narain's father Raja Ram, and Mahabir-to restrain them from interfering with Ram Narain's right to have restitution of his conjugal rights. The Munsif tried the two suits together and in a consolidated judgment he decreed Ram Narain's suit and dismissed the suit of Deo Narain. Deo Narain filed a separate appeal in respect of each suit and was successful.

(2.) The result was that Ram Narain's suit, suit No. 557 of 1930, was dismissed and Deo Narain's suit, suit No. 680 of 1930 was decreed. The learned Subordinate Judge in allowing Deo Narain's appeal in suit No. 680 of 1930 and decreeing this suit has not only granted him a declaration to the effect that Mt. Ram Dulari is his wife, but has also given him an injunction; but an examination of the plaint shows that no injunction was sought for. Ram Narain has appealed to this Court from the decree of the lower appellate Court in suit No. 680 of 1930 (Appeal No. 276 of 1931), but he has not appealed from the decree in suit No. 557 of 1930 (Appeal No. 272 of 1931) which has, therefore, become final. Mt. Ram Dulari and her grandmother, Mt. Sona, contested the suit in a joint written statement, and another written statement was filed on behalf of Ram Narain and his father Bisheshar. All the above four defendants denied the fact of marriage between Mt. Ram Dulari and Deo Narain, plaintiff. Mt. Ram Dulari and Mt. Sona, in para. 1 of their additional pleas stated that defendant 1, i.e., Mt. Ram Dulari, had not been married to the plaintiff or to anyone else. Ram Narain and his father stated as follows: "Defendant 1 has not been married to the plaintiff. She is not his wedded wife in any case."

(3.) Although Mt. Ram Dulari had denied her marriage with either Deo Narain or Ram Narain, she did not appeal from the decrees of the trial Court. She has how- over joined with Ram Narain as an appellant in this second appeal which is now before me. The learned Judge of the lower appellate Court has assumed that Mt. Ram Dulari was married either to Ram Narain or to Deo Narain. He states: "The only point before me for determination is with whom was Ram Dulari married, whether Ram Narain or Deo Narain." Then upon a consideration of the evidence of the witnesses who were examined for either party, and having regard to the circumstances and probabilities, he arrived at the conclusion that it was to Deo Narain and not to Ram Narain that Mt. Dulari had been married. Learned Counsel for the defendants-appellants pleads before me that the judgment of the lower appellate Court is vitiated by the fact that the learned Judge has recorded no finding as to whether the essential ceremonies of marriage were performed, i.e., the Saptapadi and the invocation before the sacred fire. On. behalf of the plaintiff- respondent, on the other hand, it is contended that once the factum of marriage is proved, there will be a presumption that such marriage was legally and validly performed, and since no evidence has been given to rebut that presumption, Mt. Ram Dulari must be held to be the lawful wife of Deo Narain on the principle of factum valet. The first authority to which learned Counsel for the plaintiff- respondent has referred me is that in Inderan Velungypooly Taver V/s. Ramaswamy Pandia Talaver (1869-70) 13 MIA 141. That was a case decided in 1869. It was a suit relating to a right of succession. to property and a question before the Court was whether one of the plaintiffs, was the wife or a concubine of the deceased owner and whether the other plaintiff was his legitimate son. At p. 158 their Lordships of the Privy Councils observed: Then if there was a marriage in fact, was there a marriage in law? When once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there-being a marriage in law.