JUDGMENT
V.K. Jhanji, J.
1. This is defendant’s second appeal directed against the judgment and decree of the First Appellate Court whereby on appeal by the plaintiff, judgment of the Trial Court decreeing the suit has been set aside and inconsequence thereof, suit of the plaintiff has been decreed.
2. Land in suit was owned by Babu Singh son of Sunder Singh who died in or about the year 1976. Sadhu Singh, his brother filed suit alleging that Babu Singh was unmarried and died issueless and being the brother, he is the only legal heir of Babu Singh, deceased. He alleged that defendant, Prem Kaur, although has got no concern whatsoever with the land in dispute, but in collusion with the Revenue Officer, gotmutation of the land entered in her name by alleging herself to be widow of Babu Singh, deceased. Plaintiff alleged that he requested Patwari Halqa many a times to enter mutation in his name, but Patwari has been postponing the matter on one pretext or the other. Hence, suit for declaration to the effect that plaintiff is owner in possession of land measuring 65 Big has 12 Biswas comprised in Khasra numbers fully described in the heading of the plaint. Upon notice of the suit, defendant appeared and filed written statement, denying the averments made in the plaint and contended that Babu Singh though died issueless, but was survived by Prem Kaur defendant being his widow. Defendant contended that Babu Singh had entered into Kareva and duly got executed and registered a Krevanama on 19.1.1961. She alleged that both lived together as husband and wife and were treated as such by all concerned. She submitted that mutation has rightly been sanctioned in her name. She thus, prayed that suit be dismissed. Plaintiff filed replication controverting the stand taken by the defendant and reiterating the one taken in the plaint. On the basis of pleadings of the parties, Trial Court framed the following issues:
“1. Whether Sadhu Singh, plaintiff is the only L.R. of Babu Singh, deceased?
OPP
2. Whether Smt. Prem Kaur defendant is widow of Babu Singh, deceased and as such, is sole heir of the property ?
OPD
3. Whether the suit is properly valued for purposes of Court-fee and jurisdiction ?
OPP
4. Whether the plaintiff is in possession of the land in suit and the suit is maintainable in the present form ?
OPP
5. Whether defendant is entitled to special costs under Section 35A C.P.C. ?
OPD
6. Relief.”
Trial Court on the appreciation of evidence brought on record, decided material issue, namely issue No. 2 in favour of defendant and held that Kareva marriage and long cohabitation between defendant and Babu Singh is proved. On the basis of long cohabitation between defendant and Babu Singh, Trial Court also drew presump- tion in favour of validity of marriage. On appeal by the plaintiff, First Appellate Court setaside the finding of the Trial Court on issue No. 2 and held that Prem Kaur is not the widow of Babu Singh. Accordingly, First Appellate Court allowed the appeal of the plaintiff and decreed the suit. Hence, the Second Appeal by the defendant.
3. It is contended by Mr. M.L. Sarin, Sr. Advocate, appearing on behalf of the defendant, that evidence of the material witnesses recorded at the trial is not diametrically opposed to the pleadings as has been opined by the First Appellate Court. It is contended that evidence on record discloses that deceased, Babu Singh, took defendant as his wife 5 years prior to the execution of Karevanama and this fact is so recorded in the Karevanama dated 19.1.1961. Counsel contended that because of long cohabitation, Trial Court rightly drew presumption in favour of valid marriage. Against this, it is contended by Counsel appearing on behalf of plaintiff that a marriage not solemnised in accordance with customary rites and ceremonies is not valid. In this regard, reference is made to Section 7 of the Hindu Marriage Act. According to the Counsel, in the present case, evidence in this regard is hopelessly lacking.
4. The only question which arises for determination is whether defendant has succeeded in proving that she is widow of Babu Singh and as such, is the only heir to succeed to the property of the deceased. With a view to prove that she and Babu Singh had been living together as husband and wife, defendant (Prem Kaur) gave her own statement as DW1 and stated that she had been cohabiting with Babu Singh or 23/24 years. DW 3, Kartar Singh who not only was related to Babu Singh but had also been residing on the back of his house, stated that Prem Kaur cohabited with Babu Singh as his wife fornearly 40 years. He further stated that on the death of Babu Singh, all last rites were performed by Prem Kaur, defendant. Likewise, Ajmer Singh (DW 5) and Mal Singh (DW 6) also stated that defendant and Babu Singh had been cohabiting together and they had been seeing them living together as husband and wife. Of course, there are some discrepancies, but discrepancies are not very material in regard to proof of their living together as husband and wife. As against this, witnesses examined by the plaintiff had only stated that defendant was not related to Babu Singh and he had died a bachelor. In regard to the reasoning of the First Appellate Court that defendant has not produced on record the proof regarding performance of marriage, it is only to be tated that it is not necessary that the fact of marriage must be established by eye-winesses or by proof of performance of ceremonies. Section 50 of the Evidence Act makes relevant the opinion expressed by conduct. It may be proved by the evidence of the person holding the opinion or by other persons acquitted with such facts evidencing conduct. Evidence as to the conduct of other members of the family made admissible under the section may be given either by the person whose conduct is in question or by a stranger who has special means of knowledge. In either case, witness is to state facts observed by him and the opinion he has formed therein. In this case, witnesses examined by the defendant had the special means of knowledge in regard to the facts observed by them regarding relationship, of defendant and Basu Singh and, therefore, their evidence is admissible under Section 50 of the Act for proving relationship between the defendant and Babu Singh. As regards the reasoning of the First Appellate Court that evidence led by the defendant is diametrically opposed to the stand taken in the written statement, I do not find myself in agreement with the same. If the pleadings are read in conjunction with Karevanama dated 19.1.1961, Ex. D-l, one would find that there is no contradiction between the pleading and the evidence brought on record. In the written statement, defendant pleading that Babu Singh contracted a Kareva marriage with her and in this regard, a Karevanama was executed and registered on 19.1.1961. From a reading of the Karevanama, it is patently clear that the same was got executed and registered by Babu Singh for acknowledging that Prem Kaur had been living with him as his wife for nearly 15 years before the execution of the document. It finds mention in the Karevanama that defendant has been performing conjugal rights for the last 15 years and this fact is in the knowledge of whole village. It states that all matrimonial ceremonies have already been performed before the brotherhood and it has become necessary to acknowledge the marriage in order to settle all disputes. It further states that Babu Singh has accepted Prem Kaur as his wife and he would provide her food and clothing according to his capacity and will not desert her without any reason. It also finds mention in the Karevanama that any issue born out of the wed-lock of Babu Singh and Prem Kaur shall be the legal heir of the property of Babu Singh and in case no issue is born out of the wed-lock, then Prem Kaur wife of Babu Singh will be the owner of the entire property after the death of Babu Singh. Karevanama, Ex. D-l, thus contains admission on the part of Babu Singh that defendant, Prem Kaur, had been living with him as his wife 15 years prior to the execution of Karevanama and performing all matrimonial obligations. No material infirmity has been pointed out by the Counsel for the plaintiff in regard to proof of execution of Karevanama and rightly so Karevanama, Ex. D-l, was got proved from the statement of Joginder Singh, a licence-deed writer, who while appearing as DW-2 deposed that it was scribed at the instance of Babu Singh, deceased. Sub-Registrar Gurkirpal Singh, appeared as DW-8 and stated that Karevanama was registered at the instance of Babu Singh. Dewan K.C. Puri while appearing as DW-9 submitted that on comparison with the admitted signatures, he found the thumb-impression of Karevananama to be that of Babu Singh. Thus, the evidence brought on record has clearly proved that defendant and Babu Singh had been living together as husband and wife much before execution of Karevanama, Ex. D-l. In Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, their Lordships of the Supreme Court have held that continuance cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise a presumption of marriage. In S.P.S- Balasubramanyam v. Suruttayan alias Andali Padayachi and Other, 1993 (2) All India Hindu Law Reporter 517, 1 (1994) DMC 484 (SC), their Lordships of the Supreme Court reiterated that 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 presumption is reputable. In the present case, validity of the marriage has been questioned by the plaintiff and therefore, burden of proving illegality of marriage rested on him, which he has failed to prove. In fact, no circumstances has been pointed out by the Counsel for plaintiff which would weaken or destroy presumption of marriage. Resultantly, it is held that defendant is the widow of Babu Singh and is his sole heir. Thus, the finding of the First Appellate Court in this regard being erroneous is set aside.
5. Consequently, this appeal is allowed and the judgment of the First Appellate Court is set aside and that of the Trial Court is restored. No costs.