The recital in a document can shift the burden of proof in a case involving marital status, and the evidence presented must be sufficient to rebut the presumption established by the recital.

Judgement

Jagannadhadas, J. :- The deft, is the applt. In this second appeal. The appeal arises out of a suit brought by the pltf. for recovery of two plots of lands described in the plaint schedule, from the possession of the deft. These two items of land have been pur. chased in the name of the son of the pltf. under two sale deeds, Exs. B and C, dated 4-10-30 and 4-2-35 respectively. The pltf.s son died in the year 1942 prior to the suit without leaving any issue. The deft, claims to be in possession as being his married wife. The pltf.s contention is that the deft, is not the legally married wife of his son and that in any case the suit properties though standing in the name of the son were the joint family properties and that his son died undivided and that therefore the deft, had no tide to the property. The Cts. below have found that the pltf. and his deceased son were undivided and that the properties covered in Exs. B and C, though standing in the name of the son, were joint family properties. They also held that the deft. is not proved to be the married wife of the deceased son of the pltf. On these findings both the Cts. below have decreed the pltf.s suit.

2. On the state of the law, as it stood on the date of the institution of the suit, namely, 22-12-43, the pltf. was entitled to a decree on the finding; that the suit properties were the joint family properties and that the pltf.s son died undivided from the pltf. There has, however, been a change in the law since, with retrospective operation, which has not been brought to the notice of the Cts. below.

3. The suit property is situated in Koraput district which is a partially excluded area. The Hindu Womens Rights to Property Act of 1937 (Central Act XVIII [18] of 1937) as amended in 1938. has been extended to the partially excluded areas by notfn No. 8306-J, dated 14-12-38, published in the Orissa Gazette dated 23-12-38 at p. 897. After the decision of the F. C. holding that this Act is ultra vires of the Central Legislature, in so far as it relates to agricultural land, the Provincial Legislature has enacted the Orissa Hindu Womens Rights to Property Act (Extension to Agricultural Land in Orissa) of 1944 (Orissa Act V [5] of 1944) enacting that the Hindu Womens Rights to Property Act shall apply also to agricultural land and it is further enacted that the extension is to be with retrospective operation. This Orissa Act has been extended to all the partially excluded areas including Koraput Dist. by notfn. No. 3401 J., dated 9-9-44, published in Orissa Gazette dated 15-9-1944 at p. 228.

4. There can be no doubt, therefore, that if the deft, is the married wife of the pltf.s son, she is entitled to her husbands share in the joint family property including the suit property.

5. In this view as to the change of law, the outstanding crucial question in the case is whether the deft, is the married wife of the pltf.s son. Though both the Cts. below found against the deft. on this question as a fact, it appears to me that this question has not received proper judicial attention in view of the other findings against her which were in the then state of law sufficient to entitle the pltf. to a decree. Two issues relevant to this point were raised at the trial, viz.,

Issue 3, whether the deft, is the legally married wife or a concubine of late Bhagaban Biswoi (pltf.s son), Issue 4, whether there is any custom in the caste of the parties enabling a concubine to succeed and if so, is such custom legal and valid. The trial Ct. found on issue (3) as follows :

"I have therefore no reason to disbelieve the pltf.s witnesses that she was kept by the pltf.s son."

On issue (4) he finds :

"Under the circumstances, she (deft, can, in my opinion, be taken to have occupied the same position as a married wife it to have got the same right to the property of her deceased husband in the absence of any custom or authority to the contrary."

6. The appellate Ct. finds as follows :

"As appears from the ev