Back
1976 Supreme(MP) 140
HIGH COURT OF MADHYA PRADESH
S.M.N. RAINA, J.
Maharsai & another
V.
Thakuri & others
S.A. No. 441 of 1969 against appellate decree passed by Shri Ramkrishna, Additional District Judge, Ambikapur modifying the decree passed by Shri N.M. Ingle, Civil Judge, Class I, Ambikapur
Decided on: 24-12-1976
A.R. Chaubey for appellants
L.S. Baghel for respondents
Headnote:Evidence Act, 1872–S.114 -man and woman living together as husband and wife-presumption is of marriage-presumption is rebuttable.
It is clear from the evidence on record that Mst. Tilkunwar lived with Matawan as his wife for a number of years until his death and was treated as such by the relations of Matawan. In these circumstances it would be legitimate to draw a presumption under section 114 of the Evidence Act that Mst. Tilkunwar is lawfully wedded wife of the deceased Matawan. Normally a woman lived with a man only after a lawful marriage. Concubinage is an exception and, therefore, where a man and woman have lived together as husband and wife and have been treated as such by their relations and in the society in which they move, there is a strong presumption about their being lawfully married. The presumption is no doubt rebuttable and may be rebutted by positive evidence to show that the woman started living with the man as a concubine or that there being some legal or other impediment to marriage lawful union was improbable. In such a case it would be necessary for the party asserting the marriage to prove it by direct evidence of the usual ceremonies of marriage but otherwise the presumption is enough. AIR 1929 PC 135, 1957 JLJ 444 & AIR 1952 SC 231 relied on [Para 9
Raina, J.
This is a second appeal by the defendants 2 and 3 arising out of a suit filed by the plaintiff respondent No.1 for a declaration of title to the land specified in schedule A and B attached to the plaint and also for possession thereof in case the plaintiff is held to be not in possession.
2. It is not disputed that the land in suit belonged to Matawan who died some time in the year 1960-61. Mst. Tilkunwar, defendant respondent No.3 was living with the deceased Matawan as his wife till his death. After his death she sold the land specified in Schedule A attached to the plaint to defendants 2 and 3. Plaintiff respondent Thakuri is the real brother of deceased Matawan.
3. According to the plaintiffs Mst. Tilkunwar was only a concubine of the defendant and by a will dated 7-2-1960, Ex, P-1, Matawan had bequeathed the land to the plaintiff. Thus, Mst. Tilkunwar was not competent to transfer the land specified in Schedule 8 to the defendants 2 and 3 under the sale-deed dated 16-10-1962, As the defendants have been wrongfully asserting their claim on the land in suit, the plaintiff filed this suit.
4. The case of the defendants is as follows: Deceased Matawan had sold the land described in Schedule B attached to the plaint to defendant No.4. for a consideration of Rs. 12/- and delivered possession thereof. Defendant No.1, is the lawfully married wife of deceased Matawan and was, therefore, competent to transfer the land specified in Schedule A to the defendants 2 and 3 after the death of Matawan. The execution of the will was denied.
5. The learned trial Judge held that Mst. Tilkunwar was the lawfully wedded wife of deceased Matawan and Matawan had not executed any will in favour of the plaintiff. He further held that Matawan had sold the land specified in Schedule B to the defendant No.4 in his life time. The suit of the plaintiff was, therefore, dismissed.
6. In appeal the learned Additional District Judge held that it was not proved that Mst. Tilkunwar was the lawfully wedded wife of the deceased Matawan and therefore, she was not competent to sell the land specified in Schedule A to the plaint to defendant No. 2 and 3. The finding of the lower Court regarding sale of the land specified in Schedule B of the plaint in favour of respondent No.4 was however, confirmed. The appeal was, therefore, partly allowed. The plaintiff's claim was decreed in respect of the land specified in Schedule A of the plaint while the claim in respect of the land specified in Schedule B was dismissed. The defendants 2 and 3 have, therefore, come up in appeal before this Court,
7. The only point for consideration in this case is whether it has been proved that Mst. Tilkunwar defendant respondent No. 3 is lawfully wedded wife of the deceased Matawan. As noticed above, the finding of the trial Court on this point was in favour of the defendants; but it was reversed by the learned Additional District Judge in appeal. It is clear and in fact it was not disputed before me that the finding relates to a mixed question of law and fact and, therefore, could be questioned in second appeal. In fact the arguments proceeded on that basis.
Mst. Tilkunwar (D.W. 1) who is aged about 55 years, testified that she was duly married to Matawan at Kanchanpur and that she lived with her husband as his wife until his death. Plaintiff Thakuri (PW 5) who is the brother of the deceased Matawan admitted in cross examination that Mst. Tilkunwar belonged to Kanchanpur and Matwan has brought her from Kanchanpur. The relevant part of his statement in paragraph 7 of his deposition in this connection is as under :
^^frydq¡vj dks ykus ds fy, dapuiqj erkou x;k Fkk exj gekjs xk¡o dk dksbZ Hkh vkneh ugh x;k Fkk vkSj u eS x;k FkkA erkou frydq¡vj dks fdl izdkj yk;k eq>s ugh ekyweA^^
In Paragraph 13, he stated as under:
^^R;ksgkjks ds fnu es vius HkkbZ ds ?kj ij vkrk tkrk Fkk vkSj HkkStkbZ eqŒ frydq¡vj ds gkFk dk [kkuk [kkrk FkkA eS frydq¡vj dks ukrs ds eqrkfcd HkkStkbZ dgrk FkkA ^^
