Punjab-Haryana High Court
Rattan Chand vs Shanti Devi And Ors. on 16 July, 1998
Equivalent citations: (1999)121PLR189
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is a Letters Patent Appeal under Clause 10 of the Letters Patent against the judgment passed by the learned Single Judge on 9.12.1986 in Regular First Appeal No. 810 of 1977, where he held that Smt. Raj Rani was not legally wedded wife of Parkash Chand and in fact Smt. Shanti Devi was his legally wedded wife and further that Smt. Shanti Devi and her daughter Guddi Sunita alias Kanta were entitled to succeed to the properties of Parkash Chand to the exclusion of Rattan Singh. Facts briefly stated are as follows :
2. One Parkash Chand of Moga Jit Singh was the owner of the properties shown in paras A, B, C, D, F, G & H of the heading of the plaint. He was holding mortgagee rights of two shops shown in para-E of the heading of the plaint. He was also the owner of land bearing Khasra Nos.1496, 1423, 1491, 1494, 1500, 1499 mentioned in jamabandi for the year 1967-68 situated in Moga Jit Singh. Claiming themselves to be the mother, wife and daughter of Parkash Chand, Smt. Kulwanti, Shanti Devi and Guddi Sunita alias Chander Kanta respectively instituted suit for declaration in the Court of Sub Judge 1st Class, Moga that they are owners of properties shown in paras A, B, C, D, F, G, & H of the heading of the plaint. They also claimed possession of the portion of the house shown as ABCD in sketch No. 1 and a portion of the house shown ABCD in plan No. 2 and land bearing Khasra Nos. 1496, 1423, 1491, 1494, 1500, 1499 mentioned in jamabandi for the year 1967-68 situated in village Moga Jit Singh. They alleged that defendant Smt. Raj Rani was married to one Ram Sarup of village Hathur, Tehsil Jagraon who is alive. Ram Sarup never divorced her. During the life time of Ram Sarup, Raj Rani could not contract another marriage. She was his keep and living in concubinage with him. He may have called her as his wife on account of her association with him as concubine. He never created any interest in favour of Raj Rani in the properties in suit, properties held by Raj Rani whether as purchaser or as mortgagee were on account of her being benamidar of those properties. No right or interest was created in her and Parkash Chand was the real owner of those properties and she was only a benamidar. The entire consideration for benami transactions was borne by Parkash Chand. Smt. Kulwanti and others arrayed Raj Rani's husband-Ram Sarup and her brother Rattan Singh as defendants after the death of Raj Rani. Rattan Singh was arrayed as he was pleading some will in his favour. After the death of Parkash Chand, Raj Rani took forcible possession of two houses marked BACD in plan Nos. 1 and 2 as described in para A and B of the heading of the plaint. She took forcible possession of land bearing Khasra Nos.1496, 1423, 1491, 1494, 1500 and 1499 ibid. In nutshell, Smt. Kulwanti and others claimed properties in suit on account of succession to Parkash Chand being his mother, wife and daughter. Mother, wife and daughter are Class-I heirs of a male dying intestate in view of schedule to the Hindu Succession Act, 1956.
3. Raj Rani-defendant contested the suit of the plaintiffs urging that she was the legally wedded wife of Parkash Chand and that she was never married to Ram Sarup. So far as Smt. Shanti Devi is concerned, she was not his wife, nor could she be his wife during the subsistence of her (Raj Rani's) marriage with Parkash Chand. It was admitted that Smt. Kulwanti was Parkash Chand's mother. She married Parkash Chand about 27/28 years ago and she cohabited with him all along as his wife. It was denied that Guddi Sunita alias Chander Kanta is the offspring of Parkash Chan;;. It was urged that Parkash Chand was owner of house marked A, motor-cycle, car, pistol, gun and half share of the land bearing killa Nos.1496, 1423, 1491, 1494, 1500, 1499. Rest of the propertieswere her ownership alone. In these premises, Smt. Raj Rani claimed entitlement to the properties left behind by Parkash Chand in equal shares with Smt. Kulwanti.
On the pleadings of the parties, following issues were framed by the learned Sub Judge, 1st Class:
1. Whether plaintiff No. 2 Smt. Shanti Devi is the widow of Parkash Chand deceased and plaintiff No. 3 is the daughter of Shanti Devi from the loins of Parkash Chand ? OPP
2. Whether defendant Raj Rani was the legally wedded wife of deceased Parkash Chand ? OPD
3. Whether the properties purchased or mortgaged in the name of the defendant was benami transactions ? OPP
4. Whether the suit in the present form does not lie ? OPD
5. Relief.
On the conclusion of the trial of the suit learned Sub Judge 1st Class, Moga decreed the suit of the plaintiffs Kulwanti and Guddi Sunita alias Chander Kanta to the extent of 2/3rd share of the properties mentioned in paras A, E, F and H and 1/3rd share of the agricultural land bearing Khasra Nos. 1496, 1423, 1491, 1494, 1500 and 1499 and dismissed the with regard to the remaining properties. In view of his finding that Smt. Shanti Devi was not the legally wedded wife of Parkash Chand and Smt. Raj Rani was the legally wedded wife of Parkash Chand, Guddi Sunita alias Chander Kanta was found to be daughter of Parkash Chand born to Smt. Shanti Devi as a result of her marriage with Parkash Chand, which though was void. It was also held that Smt. Raj Rani was the real owner/mortgagee and was not a benamidar.
4. Aggrieved from this judgment and decree dated 22.3.1977, passed by learned Sub Judge, Ist Class Moga, plaintiffs came to this Court in Regular First Appeal No. 810 of 1977 claiming that the suit filed by them should have been decreed in its entirety.
5. In the regular first appeal, learned Single Judge reversed the finding of the learned trial Court and held that Smt. Raj Rani was not the legally wedded wife of Parkash Chand and in fact Smt. Shanti Devi was the legally wedded wife of Parkash Chand. However, the finding that Smt. Raj Rani was the real owner/mortgagee of the properties and was not a mere benamidar was maintained. In consequence, Shanti Devi was held entitled to succeed to the inheritance of Parkash Chand along with Smt. Kulwanti, and Guddi Sunita alias Chander Kanta and the judgment and decree passed by the learned Sub Judge, 1st Class, Moga were accordingly ordered to be modified.
6. Rattan Singh son of Moti Lal defendant has filed this Letters Patent Appeal whereas Smt. Shanti Devi and Guddi Sunita alias Chander Kanta have filed civil misc. application No. 2411 of 1987 (cross objection) whereby they have claimed that the suit should have been decreed in its entirety in favour of Kulwanti, Shanti Devi and Guddi Sunita alias Chander Kanta.
7. Through this judgment we are disposing of the Letters Patent Appeal as well as the cross-objections.
8. The only issue which is determinative of the question of succession to the estate of Parkash Chand is "Whether Raj Rani or Shanti Devi was his legally wedded wife"?
9. In order to decide the aforementioned contentious issue we shall have to deal with the evidence recorded by the trial Court because the Single Judge has failed to advert to the same.
10. Amar Nath (PW1), who is real elder brother of Parkash Chand, stated that he had known Raj Rani whose parents hailed from village Chuhar Chak, Tehsil Jagraon. She was never married to Parkash Chand but was married to Ram Sarup of village Hathur, Tehsil Jagraon and he is still alive. She did not secure divorce from Ram Sarup but was putting up with Parkash Chand as his keep. Amar Nath further stated that Smt. Shanti Devi was married to Parkash Chand at Ferozepur. Her Doli was brought to Moga. She cohabited with Parkash Chand and delivered a daughter after 7 days of Parkash Chand's death. In the cross-examination Amar Nath stated that Parkash Chand remained unmarried till about 10 months prior to his death, when he got married with Shanti Devi, who was his only wife.
11. A critical analysis of the testimony of Amar Nath shows that he is not worthy of reliance. He has not stated as to how he acquired the knowledge that Raj Rani was married to Ram Sarup respondent of village Hathur. Amar Nath has not stated that he had attended the marriage of Raj Rani with Ram Sarup or he had seen Raj Rani living with Ram Sarup. Thus his assertion that Raj Rani was married to Ram Sarup has no basis whatsoever. That apart, although Amar Nath has deposed that Smt. Raj Rani was living with Parkash Chand as his keep but no importance can be attached to this part of his statement in view of the inherent falsity of his testimony.
12. Bishamber Dass (PW2) is said to be brother-in-law of Parkash Chand. He has stated that Raj Rani was never married to Parkash Chand but was married to Ram Sarup of village Hathur. He further stated that Ram Sarup is alive and Raj Rani has not secured divorce from him. He goes on to say that Raj Rani was putting up with Parkash Chand as his keep. However, the statement of Bishambar Dass also lacks credibility because he has not disclosed the means of his knowledge on the basis of which he stated that Smt. Raj Rani was married to Ram Sarup. It is not the assertion to Bishamber Dass that he had attended the marriage of Smt. Raj Rani with Ram Sarup or he had seen her living with Ram Sarup. Thus his testimony also does not satisfy the requirement of Section 50 of the Evidence Act.
13. Ram Parkash (PW3) has stated that Parkash Chand was his father's sister's son and he had been on visiting terms with him. He stated that Raj Rani was not married to him but was married to Ram Sarup of village Hathur and she cohabited with Ram Sarup. Ram Parkash also states that Raj Rani lived with Parkash Chand as his keep and not as his wife and also that Parkash Chand was married to Smt. Shanti Devi. In cross-examination he stated that he is not related to the parents of Raj Rani nor he is related to Ram Sarup. 'He was not present at the time of Raj Rani's marriage with Ram Sarup. He further stated that Raj Rani lived with Parkash Chand for about 15/16 years.
14. Lal Chand Uppal (PW5) stated that he knew Parkash Chand personally and that Raj Rani was his keep and not his wife. Lal Chand Uppal's statement too cannot be given any weight as he has not stated as to how he could say that Raj Rani was the keep of Parkash Chand.
15. Smt. Shanti Devi (PW6) stated that Raj Rani was married to Ram Sarup and he is alive. She further stated that Raj Rani's marriage with Ram Sarup has not been dissolved but she is putting up with Parkash Chand as his keep. Shanti Devi also stated that she was married to Parkash Chand. While analysing her statement, it is significant to mention that Shanti Devi stepped into the house of Parkash Chand only in March/April, 1970 on account of her alleged marriage with Parkash Chand. Earlier to this, she was a stranger to Parkash Chand and his family, as such her statement that Raj Rani was married to Ram Sarup is nothing but hear-say and cannot be believed.
16. Kulwanti (PW7) is Parkash Chand's mother. She has stated that Parkash Chand was not married to Raj Rani and he never treated Raj Rani to be his wife. Instead he treated Raj Rani as his keep. Kulwanti also states that Raj Rani was married to Ram Sarup of village Hathur. She has disclosed her knowledge about Raj Rani's marriage with Ram Sarup by saying that Raj Rani is distantly related to her. Her statement too does not satisfy the-requirement of Section 50 of the Evidence Act. Kulwanti has not asserted that she ever visited Ram Sarup and saw Raj Rani living with him. Even this much has\ not been stated by her that she had attended the marriage of Raj Rani with Ram Sarup. In the later part of her cross-examination Kulwanti made a strange statement namely that Raj Rani had been visiting Parkash Chand 3 to 4 years prior to his death.
17. From the perusal of the statements of PW1 to PW7 it can easily be gathered that none of them has disclosed the source of his/her knowledge about Raj Rani's marriage with Ram Sarup and, therefore, their testimony cannot be held as sufficient to prove Raj Rani's marriage with Ram Sarup. That apart, none of them has proved the marriage of Ram Sarup with Raj Rani by saying that he/she had attended the marriage. Thus no reliance can be placed on the statements of these witnesses.
18. Ram Sarup (PW8) can be said to be the star witness of the respondents. He claims to have been married to Raj Rani. According to him, the marriage took, place in the year 1941 and the marriage party went from village Hathur to Chuhar Chak. He says that the marriage was attended by their parents and the same took place in accordance with Hindu rites. After marriage he brought Raj Rani to village Hathur and lived with her till the latter's death. Raj Rani further stated that he did not divorce Raj Rani nor did she divorce him. In the cross-examination Ram Sarup stated that Raj Rani stayed with him for 5/6 months and thereafter came to Moga. He also stated that he was living in village Barot, District Meerut (U.P.) and was working as a truck driver. There are many holes in the testimony of Ram Sarup which make it wholly incredible. For the reasons best known to him Ram Sarup did not produce the electoral roll of village Barot to show that Raj Rani was recorded as a voter in that village. He also did not produce the ration-card to show that he was a resident of village Barot. He did not state whether any Barati, who had gone from village Hathur to Chuhar Chak, was alive. His assertion that Raj Rani never lived with Parkash Chand is falsified by the statement of other witnesses produced by the respondents. Ram Sarup's categorical assertion that he and Raj Rani had purchased property at Moga has not been corroborated because in the sale-deed Annexure P5 name of Parkash Chand figures instead of Ram Sarup. His name also does not figure in the mortgage-deed dated 19.11.1969 executed in favour of Raj Rani.
19. Sohan Lal (PW9) has stated that he had known Parkash Chand as his house is situated near the house of Parkash Chand. He had known him for the last 20/24 years and was on visiting terms at his house on the occasion of marriages. Parkash Chand was never married to Raj Rani. Raj Rani never cohabited with Parkash Chand as his wife. Raj Rani was putting up with her mother in Purana Bazar, Moga. Sohan Lal can also not be believed as he was not related to Parkash Chand nor was his neighbour. He has stated that he came forward to depose at the instance of Shanti Devi about the absence of marriage of Raj Rani with Parkash Chand.
20. Learned counsel for the respondents/cross-objectors relied on the statement of J.R. Khattar (PW10), who is said to be the Manager of Punjab National Bank, Barot. In his statement Shri Kattar has stated that Raj Rani took FDR in the sum of Rs. 4,000/- for a period of six months commencing from 4.6.1963 and therein she was recorded as wife of Ram Sarup of Sultan Ganj, Barot. In our opinion, no reliance can be placed on his testimony because Shri Khattar was not posted at the Bank's branch at Barot on 4.6.1963. His signatures did not appear on the FDR. The alleged FDR was not prepared in his presence. He could not say whether Raj Rani in whose favour the FDR was drawn is the same woman with reference to whom the parties were litigating or she was some other woman.
21. Vidya Wati (PW11) is Parkash Chand's sister. She too has stated that Raj Rani was married to Ram Sarup and she had been seeing Raj Rani cohabiting with Ram Sarup, who was putting up at village Barot. We are not prepared to believe her when she had never gone to village Barot and seen Raj Rani cohabiting with Ram Sarup. She is not related to either Ram Sarup or Raj Rani. In her cross-examination, she stated that Raj Rani was putting up in the house of her mother at Moga which had been purchased by Parkash Chand.
22. On the basis of the above, we hold that the finding recorded by the learned Single Judge on the issue of marriage of Raj Rani with Ram Sarup is not sustainable being perverse and based on the total misreading of the evidence produced by the respondents.
So far as the marriage of Raj Rani with Parkash Chand is concerned, the same, in our opinion, stands proved by the following evidence:-
(a) Raj Rani executed Will Ex.D-l/B on 15 Baisakh 1893 corresponding to 5.5.1971. It was attested by Darbara Singh and Ram Singh. It was scribed by one Shiv Shankar. In this will Raj Rani described herself as the widow of Parkash Chand son of Jagan Nath. Ram Singh and Darbara Singh DWs have proved the factum of execution of this will of Raj Rani in their presence while she was in sound disposing mind. They have stated that they attested this will after Raj Rani had admitted this will to have been executed by her of her free will and volition. The Sub Registrar registered this will after ascertaining that this will had been executed by Raj Rani widow of Parkash Chand of her free will and volition. Before the Sub Registrar she was identified by both of them as Raj Rani wife of Parkash Chand.
(b) Darbara Singh DW2 stated that Parkash Chand was his neighbour and Raj Rani was his wife. She cohabited with him for about 30 years. They used to treat Parkash Chand and Raj Rani as husband and wife. Darbara Singh DW2 was 75 years old on 11.9.1975 when he appeared before the Court. He stated that he did not attend the marriage of Parkash Chand with Raj Rani. His son Ajit Singh was a Barati. Darbara Singh DW2 appears tc be a truthful witness. He has stated that he does not know that Raj Rani was previously married to Ram Sarup of village Hathur. If he had taken sides, he would have stated that Raj Rani was never married to Ram Sarup. He had stated that Shanti Devi was married to Parkash Chand but it was Parkash Chand's second marriage. If he had taken sides, he would have stated that Parkash Chand never married Shanti Devi or that he was not aware about Shanti's marriage to Parkash Chand. He is a resident of village Moga Jit Singh, so was Parkash Chand. He was having link with Parkash Chand and that is why Raj Rani took him for the attestation of the will.
(c) Rattan Singh DW3 resident of village Chuhar Chak which is also the village to which Raj Rani belonged, has stated that Raj Rani was the daughter of Moti Ram and was married to Parkash Chand of Moga. He attended the marriage ceremony. Bat at of about 20 persons came from Moga for marrying Raj Rani. After marriage Parkash Chand and Raj Rani had been visiting Chuhar Chak. He appears to be having knowledge of the family of Raj Rani's father Moti Ram. He has stated that Raj Rani's father Rattan Singh married about 15/18 years ago. Moti Ram had three sons and one daughter. Labhu, Sain and Rattan Singh were the sons of Moti Ram. Two sons of Moti Ram are married. Sain and Labhu died after their marriages. Raj Rani was younger to her brothers. Pandit Kansi Ram read the marriage ceremony, which united Parkash Chand into the bond of marriage with Raj Rani. Pandit Kanshi Ram is dead. It was Raj Rani's first marriage with Parkash Chand. She was never married to anyone else.
We have no reason not to accept the statement of Rattan Singh DW3 who is quite candid and threadbare so far as his knowledge of the family of Moti Ram is concerned. It is not necessary that he could have knowledge of the family of Moti Ram if he were only Khatri. It is not necessary that he should have being belonging to the caste of Moti Ram to have knowledge of his family.
(d) Ishwar Dass DW4, who is 62 years old and resident of the same Agwar, where Moti Ram was residing, has stated that Raj Rani was married to Parkash Chand of Moga. He was present at the time of marriage of Raj Rani to Parkash Chand. After marriage, Parkash Chand had been visiting their village Chuhar Chak along with Raj Rani and he always treated him as son-in-law of Moti Ram. He too has knowledge of the family of Moti Rani. We have no reason not to believe him when he is resident of the same Agwar of which Moti Ram was the resident. He stated that Parkash Chand was married again after his marriage with Raj Rani. If he had taken the sides he would have stated that Parkash Chand married only Raj Rani and none else.
(e) To the same effect go the statements of Gainda Singh DW5, Puran Chand DW6, Ram Kishan DW6 and Babu Ram DW8 who are all residents of village Chuhar Chak. Puran Chand DW6 is closely related to Raj Rani inasmuch as he was her first cousin. Her father was his uncle. He has stated that he attended the marriage of Raj Rani with Parkash Chand. He witnessed the phera ceremony between them. After marriage Parkash Chand had been visiting their village Chuhar Chak and they also visited him at Moga. They always treated Parkash Chand as their sister's husband and gave him respect as such. In cross-examination, he stated that he is Jaidka by caste while Raj Rani's father was Uppal by caste. In villages people are tied with the tie of kinship, A daughter of one was viewed as the daughter of the village. If the marriage-of someone's daughter took place that fact was widely known in the village.
(f) Gursharan Singh DW9 stated that Parkash Chand took Insurance Policy. Proposal form Ex.Dl was filled in by Piare Lal Dhir, who was Field Officer in the Insurance Corporation. He nominated Raj Rani for the collection of the proceeds of the Insurance Policy. To the same effect goes the statement of P.L. Dhir DW10. Rattan Singh DW11 has stated that Raj Rani was his elder sister. She was married to Parkash Chand 30 years ago in accordance with Hindu rites and ceremonies. She cohibited with Parkash Chand as his wife at Moga. He had been treating Parkash Chand as his brother-in-law that is sister's husband. Parkash Chand had been treating him as his brother-in-law (wife's brother). They had been treating each other as husband and wife. She was never married to anyone else. Marriage ceremony was performed by late Pandit Kanshi Rain. Rattan Singh DW11 has stated that he is aware of marriage of Raj Rani with Parkash Chand. Raj Rani was recorded as Parkash Chand's wife in sale-deed dated 12.7.1961. Raj Rani was recorded as wife of Parkash Chand in the mortgage-deed Ex.Pl dated 19.11.1969. On 12.7.1961 or 19.11.1969 she was not aware that Parkash Chand would remarry and there would, be contest with regard to the succession of Parkash Chand.
23. As far as Shanti Devi's marriage with Parkash Chand is concerned, the same also stands proved. However, it cannot be treated as a marriage in the eye of law because at the time of Shanti Devi's marriage Parkash Chand's previous marriage with Raj Rani was subsisting. To us it appears that when Raj Rani failed to bear any child to Parkash Chand for a number of years, she consented to the former's remarriage and this is how Parkash Chand married Shanti Devi. Nevertheless Raj Rani's consent to the remarriage of Parkash Chand will not make his second marriage valid. Thus Shanti Devi's marriage with Parkash Chand has to be regarded as void.
24. We further hold that Raj Rani was the real mortgagee of the property in dispute and she was the real owner of the property sold to her. No evidence has been produced by the respondents to show that Parkash Chand was the real owner and Raj Rani was a benamidar. In view of this, even if we assume that Parkash Chand had paid the consideration amount, the same will not make him real owner. In fact, the finding recorded by the learned Single Judge on this score has not been seriously challenged by the learned counsel.
25. On the basis of the above discussions, we hold that the judgment of the learned Single Judge suffers from an error of law apparent on the fact of it. Consequently, the appeal is allowed and the cross-objections are dismissed. The judgment and decree passed by the learned Single Judge are set aside and those passed by the learned Sub Judge, Ist Class, Moga are restored. Parties are left to bear their own costs,