Allowed

(Deleted ) Anasthasia Kujur ( Dead ) v. (Deleted ) Sita Kumari (Dead )

Chhattisgarh HC12 Feb 2020SA/359/2002

Case brief

AI extract

What is this about?

This appeal challenged a decree awarding property succession to an alleged wife and child. The High Court allowed the appeal, holding that the evidence of custom and ritual required for a tribal marriage was absent, contradictory, and insufficient. The decree was set aside, and the trial court’s dismissal was restored.

What did the court decide?

The appellate court’s judgment and decree were set aside, the trial court’s decree was restored, and the plaintiff’s suit was dismissed.

(Deleted ) Anasthasia Kujur ( Dead ) Vs… — Succession and Inheritance | Chhattisgarh HC (2020)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No. 359 of 2002

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Anasthasia Kujur ( Dead ) As Per Court Order Dt. 06-01-2014- Deleted.

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Sushma Kujur D/o Late Birsai Urav Aged About 33 Years Service By Occupation, R/o Village Patparia, Namankala, Tehsil - Ambikapur , District - Surguja, Chhattisgarh.

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Preetima Kujur, D/o Late Birsai Urav Aged About 29 Years Student , R/o Village Patparia, Namankala, Tehsil - Ambikapur , District - Surguja, Chhattisgarh

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Mamta Kujur, D/o Late Birsai Urav Aged About 26 Years Student, R/o Village Patparia, Namankala, Tehsil - Ambikapur , District - Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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---- Appellants

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Versus

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Sita Kumari (Dead ) As Per Court Order Dt. 31-07-2019- Deleted

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Anna Kujur D/o Late Sohrai Aged About 5 Years Now Aged About 21 Years , Cast - Urav , R/o Village Patparia, Namankala, Tehsil - Ambikapur , District - Surguja, Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh

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---- Respondents _____________________________________________________________________________________ For Appellants/Defendants : Shri Sourabh Sharma, Advocate For Respondent/Plaintiff : None appears

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SB: Hon'ble Shri Justice Manindra Mohan Shrivastava

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Judgment On Board

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12/02/2020

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This appeal is directed against the impugned judgment and decree dated 30.09.2002 passed by learned Second Additional District Judge, Ambikapur, District- Sarguja in Civil Appeal No.84-A of 2002 by which, learned lower Appellate Court has reversed the judgment and decree dated 5.11.1999, passed by learned trial Court and decreed the plaintiff's suit.

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The respondent- plaintiff filed a suit seeking declaration and possession as also permanent injunction on the pleadings, inter alia, that the property in dispute belonged to Bhukha Uraon, the father of Late Sohrai.

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Later on, after death of Bhukha, Sohrai succeeded to the property in dispute as the sole successor and his name was mutated in revenue records. Further case of the plaintiff was that plaintiff No.1, Seeta Kumari was married to Late Sohrai, about three years before his death, according to customs and rituals of Uraon tribe and out of their wedlock, plaintiff No.2 Anna Kujur was born. The defendant No.1 is the aunt of Late Sohrai. Taking undue advantage of the fact that Sohrai was a rustic villager and was less educated, attempt was made to grab his property. At the time of death of Sohrai, the plaintiff No.1 was in her parental house where she was not informed regarding death of her husband. It was also pleaded that without informing her, defendant No.1 performed last rights of cremation upon death of Sohrai. According to the plaintiff, plaintiff No.1 being the wife and plaintiff No.2 being daughter are entitled to succeed to the property of Sohrai after his death and as the defendant No.1 is claiming herself to be only successor of the property of deceased Sohrai, suit was filed.

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The appellant-defendant resisted the claim of the plaintiff by disputing the factum of marriage. In the written statement, defendant denied that there was any marriage solemnized between Late Sohrai and plaintiff No.1- Seeta Kumari and that plaintiff No.2-Anna Kujur was born out of their wedlock.

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In view of the dispute raised by the parties, learned trial Court framed following issues:-

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“1- D;k oknhx.k Lo0 lksgjkbZ ds oS/kkfud mRrjkf/kdkjh gaS ? 2- D;k Lo0 lksgjkbZ us oknHkwfe ij izfr0 dz- 2 ls 4 dk LoRo gksuk Lohdkj fd;k Fkk ? 3- D;k fookfnr Hkwfe oknhx.k ds LoRo dh Hkwfe gS ? 4- ¼v½ D;k oknhx.k oknHkwfe dk dCtk izkIr djrs rd varfje {kfriwfrZ izkIr djus ds vf/kdkjh gS ?

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¼c½ ;fn gka rksa fdruk ? 5- D;k oknhx.k dk nkok iks"k.kh; gS ? 6- lgk;rk ,oa O;; ?

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7- D;k okfnuhx.k fookfnr Hkwfe dk dCtk izkIr djus ds vf/kdkfj.kh gS ?”

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After allowing the parties to lead oral and documentary evidence, learned trial Court dismissed the suit holding that the plaintiff No.1 failed to prove that she was legally wedded wife of deceased- Sohrai or that plaintiff No.2 was a daughter born out of so called marriage between Sohrai and plaintiff No.1- Seeta Kumari.

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Aggrieved by the judgment and decree passed by the learned trial Court, appeal was preferred by the plaintiff. Learned lower appellate Court relying upon the evidence of Seeta (PW1), Narayan Sharma (PW2) and Laxmi Prasad (PW3), recorded a finding that plaintiff succeeded in proving that plaintiff No.1 was the legally wedded wife of deceased Sohrai and plaintiff No.2 was the daughter borne out this wedlock and on that basis, the plaintiff suit was decreed.

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This appeal was admitted by this Court on following substantial questions of law :-

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“1. Whether the First Appellate Court is justified in holding that Sita Kumari/Plaintiff No.1 is the legally wedded wife of deceased Sohrai and Plaintiff No.2 is the son of deceased Sohrai and they have succeeder to the property of deceased Sohrai ignoring the acceptable evidence of clinching nature available on the record ? 2. Whether the First Appellate Court is justified in disbelieving the Exhibit D-3 and holding the same as forged ? ”

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At the outset, it has to be clarified that in the recitals of 1^st substantial question of law, in place of 'daughter', it has been wrongly typed as the 'son'. This is not disputed by learned counsel for both the parties.

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Learned counsel for the appellants – defendant would argue that the learned lower appellate Court committed gross perversity and illegality in decreeing the suit on the basis of the evidence of Seeta (PW1), Narayan

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Sharma (PW2) and Laxmi Prasad (PW3) which, apart from being contradictory, do not fulfill the legal requirement of proof of valid marriage. He submits that while plaintiff- Seeta, examined as first plaintiff witness, claims to have married with Late Sohrai, she has neither stated the specific date and place of marriage nor could state the names of the relatives of deceased- Sohrai or herself who attended the said marriage. The second witness Narayan Sharma (PW2) who claims to have attended the marriage has also not clearly stated as to how and in what manner, the rituals of marriage applicable as per the customs of Uraon tribe were followed. The evidence of Laxmi Prasad (PW3) father of the plaintiff Seeta Kumari is in contradiction with what has been stated by the plaintiff No.1 herself and Narayan Sharma (PW2). While the first two witnesses state that marriage was solemnized after Sohrai was released from jail, the third witness, the father of plaintiff Seeta, has deposed that marriage was solemnized before Sohrai was sent to jail. It is also argued that evidence of this witness is highly unacceptable because he is not even in a position to state the names of relatives who attended the marriage. Learned counsel for the appellant emphasized and stressed upon his submission that the evidence of the witness do not fulfill the requirement of proof of valid marriage. Neither the custom of marriage, as applicable to Uraon tribe has been pleaded specifically nor any evidence has been led to prove solemnization of marriage between deceased Sohrai and Seeta according to customs. Therefore, it is argued, the impugned judgment and decree passed by learned lower appellate Court is illegal. He would further argue that the learned lower appellate Court fell in grave error of law in relying upon new document which was filed before the trial Court but was not accepted in evidence of the trial Court.

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10.On the second substantial question of law, learned counsel for the appellant-defendant would argue that the agreement (Ex.D-3) was duly proved. The said document did not require any registration or stamping. The document proved that deceased Sohrai acknowledged the title of the defendants in the said property.

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No one represents the legal representative of the deceased-respondent though notices have been served through substituted mode of service by publishing it in the newspaper.

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The plaintiff's case is based primarily on the pleading that plaintiff No.1Seeta Kumari is the legally wedded wife of deceased Sohrai. This was specifically denied by the defendants. Defendant No.1 is aunt of Sohrai and other defendants are nieces of Sohrai. In view of specific denial, the burden was on the plaintiff to prove that plaintiff No.1-Seeta Kumari was legally wedded wife of deceased- Sohrai.

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13.In para-3 of the plaint, it has been pleaded that marriage of plaintiff No.1 Seeta was solemnized approximately three years before death of Sohrai according to customs prevalent in Uraon tribe. There is no specific pleading as to what are the rituals and practices prevalent under the customs applicable to Uraon tribe in the matter of solemnization of marriage. All that has been stated in the plaint is that the marriage was solemnized according to the prevalent customs of Uraon. Even in the evidence led by Seeta (PW1), Narayan Sharma (PW2) and Laxmi Prasad (PW3), there is no specific evidence as to what is the custom prevalent in Uraon in the matter of solemnization of marriage and how marriages are solemnized. Seeta (PW1) has stated in her evidence that marriage was performed by installing mandap. Except this, she has not stated any other rituals of practices followed in solemnization of marriage. Seeta (PW1) is not even able to state clearly, the date on which marriage was solemnized. She has also not stated as to who were her relatives and that of Sohrai, present at the time of solemnization of marriage.

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14.Narayan Sharma (PW2) who claims to be the childhood friend of Sohrai though, deposes that the marriage was solemnized, he is unable to tell as to when marriage was solemnized. According to him, marriage was solemnized 4-5 years before. Though, he also states that marriage was solemnized according to customs of Uraon, what custom were prevalent and applicable in Uraon tribal community and how those customs were followed in various rituals towards solemnization of marriage, has not

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been stated in the evidence. In para-6 of the evidence, he states that at the time of solemnization of marriage, none of the relatives of Sohrai were present in the marriage. According to this witness, only his uncle was present at the time of marriage. Later on, he deposes that in marriage, father of Suresh and Dilbodh had also attended the marriage. According to him, there were 5-6 persons who attended the marriage.

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The third witness Laxmi Prasad (PW3), father of Seeta, though states that marriage was solemnized, according to him, marriage was solemnized before Sohrai was put to jail. There is serious contradiction with regard to the time of marriage as stated by Seeta (PW1) and Narayan Sharma (PW2) on one hand and Laxmi Prasad (PW3) on the other. While according to Seeta (PW1) and Narayan Sharma (PW2), marriage was solemnized between Sohrai and Seeta, 2 – 3 months after Sohrai was released from jail, according to the version of Laxmi Prasad (PW3), the father of plaintiffSeeta, marriage was solemnized even before Sohrai was jailed. This witness has further stated in his evidence that Sohrai was following Hindu religion and they also follow Hindu religion. In the cross examination, he admits that defendant is the aunt of Sohrai. He also states that during the time of solemnization of marriage, defendant were not present and they had gone to another place. He further deposed that in the marriage, none of the relative of Sohrai had attended but only neighbours had gone to attend marriage and according to him, about 10-15 persons had attended marriage. He is not in a position to state as to in which month, marriage was solemnized or in which season marriage had taken place.

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15.It would thus be seen that the plaintiff's evidence with regard to solemnization of marriage itself not only suffers from contradiction but is wholly unacceptable. Where a party is put to proof of marriage, he is required to specifically plead as to what was the applicable law with regard to marriage. According to the plaintiff, the marriage was solemnized according to prevalent customs of Uraon tribe but what was that customs and how marriage is to be solemnized and what rituals are performed have neither been pleaded nor stated anywhere in the

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evidence.

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In order to prove valid marriage, the party on whom the burden lies to prove, is required to firstly plead as to what are the customs of marriage according to enforceable, applicable law whether it be customary law or otherwise and then to lead cogent and clinching evidence that the marriage was solemnized following the rituals and practices under the applicable customs. None of these requirements was fulfilled from the evidence of the plaintiff. Therefore, the learned lower appellate Court was not justified in holding that there was a valid marriage between the plaintiff No.1 Seeta and deceased Sohrai.

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16.The plaintiff herself has admitted in her cross-examination that plaintiff No.2 was born in the month of July 1994. According to plaintiff's own case, Sohrai was released from jail in the month of February 1994 and according to plaintiff's own evidence, marriage was solemnized 2-3 months thereafter. That means the birth of child in the month of July 1994 could, by any stretch of imagination, be said to be from the wedlock of Sohrai with Seeta which had taken place according to plaintiff few months before the birth of the child.

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17.Learned lower appellate Court has ignored to consider the aforesaid clinching evidence with regard to claimed date of marriage and the date of birth of plaintiff No.2. The defendants have led the evidence of Sundar (DW2) father of one Hari who claims that Seeta was married to Hari 7-8 years before i.e. some time in the year 1992. Even this evidence has not been properly taken into consideration and ignored by learned lower appellate Court.

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18.Learned lower appellate Court has also relied upon certain certificate which was filed by the plaintiff along with application under Order XIII Rule 2 CPC before the trial Court. Records shows that that said document was not admitted in the evidence. Unless the document is admitted in the evidence in the manner prescribed under the Law and the other party is granted opportunity to rebut the same, it could not be admitted in

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evidence nor any reliance could be placed on the said document in support of plaintiff's case that plaintiff was married to Sohrai.

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19.In view of the above, the finding recorded by the learned lower appellate Court suffers from perversity. Impugned judgment and decree passed by the learned lower appellate Court, therefore, cannot be sustained.

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20.Accordingly, the substantial question of law is answered in the manner that first appellate Court was not justified in holding that Seeta, plaintiff No.1 was the legally wedded wife of deceased- Sohrai and plaintiff No.2 is son of deceased- Sohrai and they have succeeded to the property of the deceased -Sohrai.

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21.In view of the aforesaid consideration, it is not necessary for this Court to go into the second substantial question of law.

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22.In the result, the appeal is allowed. Impugned judgment and decree passed by learned first appellate Court is set aside and that of learned trial Court is restored. Suit of the plaintiff is dismissed.

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23.Parties to bear their respective costs.

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24.Let appellate decree be drawn.

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Sd/(Manindra Mohan Shrivastava) Judge

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Praveen

(Deleted ) Anasthasia Kujur ( Dead ) v. (Deleted ) Sita Kumari (Dead )

Case brief

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(Deleted ) Anasthasia Kujur ( Dead ) v. (Deleted ) Sita Kumari (Dead )

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