Orissa High Court
Gurudasmal Choudhury (Dead) & vs Ramagarib Burma on 17 January, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.343 of 1988
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Gurudasmal Choudhury (dead) & .... Appellants
Others
-versus-
Ramagarib Burma .... Respondent
For Appellants - Mr.A.K.Sahoo, Advocate
For Respondent - Mr.S.C.Samantray, Advocate
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :03.01.2025:: Date of Judgment :17.01.2025 A.C. Behera, J. This Second Appeal has been preferred against the confirming judgment.
2. The appellant in this Second Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.4 of 1981 and appellant before the 1st Appellate Court in the first appeal vide T.A. No.3/10 of 1986-87.
The respondent in this 2nd Appeal was the defendant No.1 before the Trial Court in the suit vide T.S. No.4 of 1981 and respondent before the 1st Appellate Court in the 1st appeal vide T.A. No.3/10 of 1986-87. Page 1 of 16 SA No.343 of 1988
// 2 //
3. The suit of the plaintiff (appellant in the 2nd appeal) vide T.S. No.4 of 1981 against the defendants i.e. against the respondent of this 2nd appeal and Sunsibai @ Shanti Bai was a suit for declaration, recovery of possession and permanent injunction.
4. As per the case of the plaintiff, his father Rangilal Choudhury died leaving behind him (plaintiff) and his brother Parsuram Choudhury as his successors. His brother Parsuram Choudhury died issueless in the year 1980. He (plaintiff) is a Hindu and guided and governed by Mitakshara school of Hindu Law.
As per the averments made in the plaint, the suit properties were the joint and undivided properties of the plaintiff and his brother Parsuram Choudhury. When, his brother Parsuram Choudhury died issueless on dated 20.08.1980, then, his half share in the suit properties devolved upon him (plaintiff) and accordingly, he (plaintiff) is the exclusive owner over the entire suit properties.
The defendants are the strangers to his family, They (defendants) have no right, title and interest in the suit properties. The defendant No.2 (Sunsibai @ Shanti Bai) was working as a maid servant of his deceased brother Parsuram Choudhury and subsequently his brother Parsuram Choudhury kept (defendant No.2) as his concubine. When, his brother Page 2 of 16 SA No.343 of 1988 // 3 // Parsuram Choudhury died on 20.08.1980, then, he (plaintiff) on humanitarian ground permitted the old defendant No.2 to reside in a portion of his house, but, subsequent thereto the said defendant No.2 sold the suit properties described in Schedule "B" of the plaint to the defendant No.1 by executing and registering a sale deed on dated 13.01.1981 projecting herself as the widow wife of his deceased brother Parsuram Choudhury, though, the defendant No.2 is not the widow wife of Parsuram Choudhury and she (defendant No.2) had no alienable interest over the suit properties to transfer of the same. When, on the strength of execution of the said illegal sale deed dated 13.01.1981, the defendant No.1 forcibly took the possession of the suit properties, then, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.4 of 1981 against both the defendants praying for declaration of his right, title and interest over the suit properties and to recover the possession of the same from the defendant No.1 and to injunct the defendant No.1 permanently from creating any sort of disturbance in his lawful possession in the suit properties.
5. Having been noticed from the Trial Court in the suit vide T.S. No.4 of 1981 filed by the plaintiff, the defendant No.2 was set ex parte. Whereas, the defendant No.1 contested the suit of the plaintiff by filing Page 3 of 16 SA No.343 of 1988 // 4 // his written statement denying the averments made by the plaintiff in his plaint taking his stands admitting the death of Parsuram Choudhury on dated 20.08.1980 by stating therein that, Parsuram Choudhury was the brother of the plaintiff, but, the defendant No.2 is the widow wife of Parsuram Choudhury. The suit properties were the self-acquired properties of Parsuram Choudhury, for which, after the death of Parsuram Choudhury, the suit properties left by him devolved upon his widow wife i.e. defendant No.2, in which, the plaintiff has no right, title, interest and possession. For which, the defendant No.2 being the legal owner of the properties described in Schedule "B", she (defendant No.2) sold the same to him (defendant No.1) by executing and registering sale deed on 03.01.1981 after receiving due consideration amount thereof and delivered possession thereof and accordingly, since the date of purchase i.e. since 03.01.1981, he (defendant No.1) has been possessing the properties described in Schedule "B" being the sole owner thereof.
The further case of the defendant No.1 was that, during the lifetime of Parsuram Choudhury, he had gifted away the suit properties described in Schedule "A" of the plaint to him through a registered gift deed dated 07.04.1977 and accordingly, since 07.04.1977, he (defendant No.1) had/has been possessing the suit properties described in Schedule "A". Page 4 of 16 SA No.343 of 1988
// 5 // Accordingly, he (defendant No.1) is the owner of the entire suit properties described in Schedule "A" and "B" both in the plaint of the plaintiff, in which, the plaintiff has no interest and possession.
For which, the suit of the plaintiff is liable to be dismissed.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether ten numbers of issues were framed by the Trial Court in the suit vide T.S. No. 4 of 1981 and the said issues are:-
Issues
1. Whether the plaintiff is the son of late Rangilal Choudhury?
2. Whether defendant No.2 is the wife of late Parsuram Choudhury?
3. Whether the suit land is the joint family property of the plaintiff and late Parsuram Choudhury?
4. Whether late Parsuram Choudhury gifted the Schedule "A" land as per written statement to defendant No.1?
5. Whether defendant No.2 sold the Schedule "B" land of the written statement to the defendant No.1 on 3.1.1981 for Rs.2500/-?
6. Which party is in possession of the suit land?
7. Is the suit hit by Section 34 of the Specific Relief Act?
8. Is the suit undervalued?
9. Is there any cause of action for the suit?
10. To what relief, the plaintiff is entitled?
7. In order to substantiate the aforesaid relief(s), sought for by the plaintiff against the defendants, he (plaintiff) examined altogether three numbers of witnesses from his side including him as P.W.1 and relied upon the documents vide Exts.1 to 3.
Page 5 of 16 SA No.343 of 1988
// 6 // On the contrary, in order to nullify/defeat the suit of the plaintiff, the contesting defendant No.1 examined six numbers of witnesses from his side including him as D.W.3 and relied upon series of documents vide Ext.A to F/6 on his behalf.
8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered all the issues against the plaintiff and in favour of the defendants.
Basing upon the findings and observations made by the Trial Court in the issues against the plaintiff, the Trial Court dismissed the suit of the plaintiff vide T.S. No.4 of 1981 on contest as per its judgment and decree dated 4.11.1985 and 28.11.1985 respectively assigning the reasons that, the suit properties were the properties of Parsuram Choudhury and during the lifetime of Parsuram Choudhury, the said Parsuram Choudhury had gifted away Schedule "A" suit properties in favour of the defendant No.1 by executing and registering gift deed dated 07.04.1977 and the defendant No.2 is the widow wife of late Parsuram Choudhury. Parsuram Choudhury and the defendant No.2 were leading their lives as husband and wife for more than twenty years as per the own evidence of the plaintiff and his witnesses on oath, which has been corroborated through the evidence of the witnesses of the defendant No.1 and after the death of Page 6 of 16 SA No.343 of 1988 // 7 // Parsuram Choudhury, the schedule "B" suit properties left by him devolved upon his wife i.e. defendant No.2 and the defendant No.2 sold the same to the defendant No.1 by executing and registering sale deed dated 03.01.1981 vide Ext.F, for which, the defendant No.1 has become the owner of the entire suit properties and he is in possession over the same. For which, the plaintiff is not entitled for any relief, because, he (plaintiff) has no interest in the suit properties.
9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit vide T.S. No.04 of 1981 of the plaintiff, he (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.3/10 of 1986-87 being the appellant against the defendant No.1 arraying him (defendant No.1) as respondent, because, by that time, the defendant No.2 had expired without any child.
10. After hearing from both the sides, the 1st Appellate Court dismissed that first Appeal vide T.A. No.3/10 of 1986-87 of the plaintiff on contest as per its judgment and decree dated 22.09.1988 and 07.10.1988 respectively concurring/accepting the findings and observations made by the Trial Court.
11. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st Appeal vide T.A. No.3/10 of 1986-87 of the plaintiff, Page 7 of 16 SA No.343 of 1988 // 8 // he (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendant No.1 arraying him (defendant No.1) as respondent.
12. When, during the pendency of this 2nd Appeal, the appellant- plaintiff expired, then, his LRs have been substituted in his place as appellant Nos.1(a) to 1(d).
13. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:-
1. Whether the legal presumption of marriage would be available on account of living of Parsuram Choudhury and defendant No.2 together for a long time?
2. Whether the findings of the lower Appellate Court that, presumption of legal marriage of late Parsuram Choudhury and Defendant No.2 will be available in absence of any evidence of actual marriage?
14. I have already heard from the learned counsels of both the sides.
15. When, both the aforesaid formulated substantial questions of law are interlinked on a same point having ample nexus with each other as per the judgments and decrees passed by the Trial Court and 1 st Appellate Court on the basis of the pleadings and evidences of the parties, then, Page 8 of 16 SA No.343 of 1988 // 9 // both the aforesaid formulated substantial questions of law are taken up together analogously for their discussions hereunder:-
When, the plaintiff is claiming that, the defendant No.2 is not the wife of his brother Parsuram Choudhury, because, according to him (plaintiff), the defendant No.2 was working as a maid servant of his brother Parsuram Choudhury, but, subsequently she (defendant No.2) was kept as his concubine, not as his wife. For which, the defendant No.2 cannot succeed to the properties including the suit properties left by his brother Parsuram Choudhury. To which, the defendant No.1 is disputing/denying by taking his stands in this pleadings and evidence that, the defendant No.2 is the wife of Parsuram Choudhury, because, the defendant No.2 and deceased Parsuram Choudhury were living together in the house of Parsuram Choudhury for long years as husband and wife having continuous cohabitation for a number of years and acceptance of their such relationship as husband and wife by the society and performance of obsequies and rituals of Parsuram Choudhury by the defendant No.2 as his wife after the death of Parsuram Choudhury, for which, the defendant No.2 is the sole successor of Parsuram Choudhury and after the death of Parsuram Choudhury, the properties left by him including Schedule "B" properties devolved upon her (defendant No.2). Page 9 of 16 SA No.343 of 1988
// 10 // For which, the defendant No.2 having alienable right over the "B" Schedule suit properties, she (defendant No.2) has alienated the same in favour of the defendant No.1 on dated 03.01.1981 by executing and registering sale deed vide Ext.F.
16. Now, the question arises, whether the materials and documents available in the records are sufficient to hold that, the defendant No.2 is the widow wife and sole successor of Parsuram Choudhury or not?
17. The plaintiff (P.W.1) has deposed in Para Nos.16 and 19 of his deposition by stating that, "since last 45 years, the defendant No.2 and late Parsuram Choudhury were remaining jointly in the suit house and the defendant No.2 was collecting rent from the tenants of the suit house, which was let out on rent".
18. One witness of the plaintiff i.e. P.W.2 has deposed in Para No.5 of her deposition by stating that, "since the defendant No.2 was staying in the house of late Parsuram Choudhury, she might be the wife of Parsuram Choudhury. In the voter list, the defendant No.2 has been described as the wife of late Parsuram Choudhury".
Another witness of the plaintiff i.e. P.W.3 has deposed in his evidence by stating that, "the defendant No.2 is staying in the house of Parsuram Choudhury since last 20 years. She (defendant No.2) is residing Page 10 of 16 SA No.343 of 1988 // 11 // in a portion of house of Parsuram Choudhury and rest portion were let out on rent."
19. All the witnesses of the defendant No.1 including the defendant No.1 have deposed above in their respective evidence corroborating the pleadings of the defendant No.1 that, "the defendant No.2 and Parsuram Choudhury were living and leading their lives in the house of Parsuram Choudhury since long continuously till the death of Parsuram Choudhury as husband and wife and the defendant No.2 has borne all the expenditures of the obsequies of Parsuram Choudhury after his death".
20. On the basis of the aforesaid evidence of the plaintiff and defendant No.1 and by placing reliance upon the decisions relied upon by the defendant No.1, the trial court came to the conclusion in answering issue No.2 that, the presumption of marriage between the defendant No.2 and late Parsuram Choudhury has been established due to their long and continuous staying unitedly as husband and wife and they were accepted by the society as such, for which, after the death of Parsuram Choudhury, the defendant No.2 being his widow wife is his only successor of the properties left by him (Parsuram Choudhury), in which, the plaintiff has no interest and the defendant No.2 has lawfully sold Schedule "B" suit properties to the defendant No.1 by executing and registering the sale Page 11 of 16 SA No.343 of 1988 // 12 // deed on dated 03.01.1981 vide Ext.F and the said observations of the trial court was fully accepted by the 1st Appellate Court.
21. The law concerning the presumption of marriage between man and woman has already been clarified by the Apex Court in the ratio of the following decisions:-
(i) In a case between Kattukandi Edathil Krishnan & Another Vrs.
Kattukandi Edathil Valsan & Others decided by the Apex Court reported in Civil Appeal No(S). 6406-6407 of 2010 on dated 13.06.2022 , it has been held by the Apex Court that, "duration of cohabitation between Damodaran and Chiruthakutty as husband and wife shall be deemed their marriage.
It is well settled that, if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act, 1872. Although, the presumption is rebuttable, a heavy burden lies on him, who seek to deprive the relationship of legal origin to prove that, no marriage took place".
(ii) In a case between Badri Prasad Vrs. Dy.Director of Consolidation & Others reported in (1978) 3 S.C.C. 527, the Hon'ble Apex Court has held that, "when, a strong presumption of marriage between them arises, heavy burden lies on anyone seeking to rebut such presumption".
(iii) In a case between S.P.S. Balasubramanyam Vrs. Suruttayan Alias Andali Padayachi & Others reported in (1994) 1 S.C.C. 460, it has been held by the Apex Court that, Page 12 of 16 SA No.343 of 1988 // 13 // "if a man and woman live together for long years as husband and wife, then a presumption arises in law of legality of marriage existing between the two. But that presumption is rebuttable".
(iv) In a case between Madan Mohan Singh & Others Vrs. Rajni Kant & Another reported in (2010) 9 SCC 209, it has been held by the Apex Court that, "law presumes in favour of marriage and against concubine. When a man and woman have cohabitated continuously for a number of years. In such a case there will be a presumption under section 114 of the Evidence Act, that, they live as husband and wife and the children born to them will not be illegitimate".
(v) In a case between Challamma Vrs. Tilaga & Others reported in (2009) 9 SCC 299, the Apex Court has held that, "a long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage".
(vi) In a case between Tulsa & Others Vrs. Durghatiya & Others reported in (2008) 4 SCC 520, It has been clarified by the Apex Court taking into account to the Section 50, 114 of the Indian Evidence Act that, "it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of the parties as they are borne out by the facts of a particular case. Where the partners lived together for long spell as husband and wife, there would be presumption in favour of wedlock".
22. Here, in this suit/appeal at hand, when, all the witnesses of the plaintiff including the plaintiff himself as P.W.1 have deposed above in their evidence that, the defendant No.2 and the deceased Parsuram Page 13 of 16 SA No.343 of 1988 // 14 // Choudhury were living unitedly in the house of Parsuram Choudhury since more than 20 years till the death of Parsuram Choudhury and they (Parsuram Choudhury and defendant No.2) were leading their lives as husband and wife and when, they (witnesses of the plaintiff) have deposed that, after the death of Parsuram Choudhury, the defendant No.2 has borne all the expenditures of the obsequies of Parsuram Choudhury and after the death of Parsuram Choudhury, the defendant No.2 is residing in a portion of the house of Parsuram Choudhury and the rest portions thereof have been let out on rent and the defendant No.2 is collecting the rents from the tenants of the said rented houses and when, the above evidence of the witnesses of the plaintiff has been fully corroborated by the witnesses of the defendant No.1 including defendant No.1 that, the defendant No.2 and Parsuram Choudhury were living together for long years as husband and wife till the death of Parsuram Choudhury and the defendant No.2 has performed the duties as the wife of Parsuram Choudhury after his death, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions of the Apex Court, it is held that, there would be a strong presumption of marriage between Parsuram Choudhury and defendant No.2 on the basis of their living together in one house i.e. in the house of Parsuram Choudhury as man and women (husband and wife) for long years having Page 14 of 16 SA No.343 of 1988 // 15 // co-habitation as husband and wife for such long years and they were recognized by the society as husband and wife. Though, as per law, the above presumption is rebuttable one, but, the plaintiff has not been able to rebut such presumption under law between Parsuram Choudhury and defendant No.2 as husband and wife, rather, the evidence adduced on behalf of the plaintiff has corroborated/strengthened the aforesaid presumption i.e. relationship between Parsuram Choudhury and defendant No.2 as husband and wife.
For which, the findings and observations made by the Trial Court and 1st Appellate Court concerning the relationship between Parsuram Choudhury and the defendant No.2 as husband and wife and that, the defendant No.2 was the sole successor of late Parsuram Choudhury after his death and the suit properties described in Schedule "B" left by Parsuram Choudhury solely devolved upon the defendant No.2 and proper alienation thereof has been made by her (defendant No2) through registered sale deed dated 03.01.1981 vide Ext.F in favour of the defendant No.1, cannot be held as unreasonable.
23. Therefore, the question of interfering with the said concurrent findings and observations made by the trial court and 1st Appellate Court Page 15 of 16 SA No.343 of 1988 // 16 // through this 2nd Appeal filed by the plaintiff does not arise. As such, there is no merit in the appeal of the appellant (plaintiff). The same must fail.
24. In result, the appeal filed by the appellant (plaintiff) is dismissed on contest, but, without cost.
25. The judgments and decrees passed by the Trial Court and 1 st Appellate Court in T.S. No.4 of 1981 and T.A. No.3/10 of 1986-87 respectively are confirmed.
(A.C. Behera), Judge Orissa High Court, Cuttack 17th of January, 2025/ Binayak Sahoo// Junior Stenographer Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC. CUTTACK Date: 17-Jan-2025 18:01:19 Page 16 of 16 SA No.343 of 1988