1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.535 of 2006

Judgment reserved on: 5-12-2019

Judgment delivered on: 10-12-2019

Jal Singh (Dead) Through LRs
(Defendant)

a) Pili Bai, W/o Late Jal Singh, aged about 55 years,

b) Samluram, S/o Late Jal Singh, aged about 39 years,

c) Dammulal, S/o Late Jal Singh, aged about 36 years,

d) Ludhesh, S/o Late Jal Singh, aged about 32 years,

All residents of Village Post Sonabal, Tahsil Kondagaon, District
Kondagaon (C.G.)
—- Appellants

Versus

1. Kamli Bai, W/o Chedu Ram, aged about 50 years,

2. Sundar Lal, S/o Late Chedu Ram, aged about 12 years

3. Phulmati, S/o Late Chedu Ram, aged about 10 years

Respondents No.2 and 3 minor through their guardian Smt. Kamli
Bai

All caste Gond and R/o Sonabaal, Tehsil Kondagaon, Distt. Bastar
(C.G.)
(Plaintiffs)

4. State of Chhattisgarh, through Collector, Jagdalpur (C.G.)
—- Respondents

————————————————————————————————–

For Appellants: Mrs. Renu Kochar, Advocate.
For Respondents No.1 to 3: –

Mr. Malay Jain, Advocate.

For Respondent No.4 / State:

Mr. Anshuman Rabra, Panel Lawyer.

————————————————————————————————–

Hon’ble Shri Justice Sanjay K. Agrawal

C.A.V. Judgment
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1. This second appeal preferred by the appellants / LRs of defendant

No.1 was admitted for hearing by formulating the following

substantial questions of law: –

“Whether learned first appellate Court is justified in
declaring the sale deed dated 27/07/1998 executed by
Heera Dai in favour of defendant No. 1 – Jai Singh to be
null and void, without producing the sale deed on record
and without exhibiting the said sale deed?”

Additional substantial question of law: –

“Whether the first appellate Court is justified in reversing
the finding that Heera Dai was duly wedded wife of
Suku?”

(For the sake of convenience, parties hereinafter will be
referred as per their status shown and ranking given in the suit
before the trial Court.)

2. The suit property was originally held by Suku and Mahadev. The

plaintiff was son of Mahadev. He filed suit that the sale deed dated

27-7-1998 executed by Heera Dai claiming to be the wife of Suku

has not conveyed any title in favour of defendant No.1, therefore, it

be declared null and void in which defendant No.1 setup a plea that

Heera Dai being the legally wedded wife of Suku had right and title

over the property and was empowered to alienate the suit land in

favour of defendant No.1. On full-fledged trial, the trial Court

dismissed the suit holding that Heera Dai was concubine of Suku,

but she has acquired the status of wife and therefore she was

empowered to alienate the suit property in favour of defendant No.1

and as such, the alienation made in his favour is proper and the

sale deed is valid which the first appellate Court has reversed and

decreed the suit holding the sale to be null and void against which

this second appeal has been preferred in which two substantial
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questions of law have been framed which have been set-out in the

opening paragraph of this judgment.

3. Mrs. Renu Kochar, learned counsel appearing for the appellants

herein / LRs of original defendant No.1, would submit that the

decree granted by the first appellate Court in favour of the plaintiffs

despite non-production of sale deed and non-exhibiting of sale

deed though it has been said to be illegal, cannot be sustained.

She would further submit that the suit property has already been

divided between the parties, as per the evidence of the plaintiff.

The finding of the first appellate Court that Heera Dai was not the

wife of Suku is a perverse finding and as such, the judgment and

decree of the first appellate Court deserve to be set-aside and the

suit deserves to be dismissed.

4. Mr. Malay Jain, learned counsel appearing for respondents No.1 to

3 herein / LRs of the original plaintiff, would support the judgment

decree of the first appellate Court and would submit that the fact of

sale is not in dispute, rather it is admitted fact and admitted fact

need not be proved by virtue of the provisions contained in Section

58 of the Evidence Act, 1872. He would further submit that the sale

deed was not required to be exhibited, as contents of sale deed are

not in dispute and once the sale is void ab initio, Heera Dai was not

competent to alienate the suit property and the sale deed would be

void automatically and impliedly. He would also submit that Heera

Dai being the concubine of Suku had no right and title to transfer

the property and as such, the appeal deserves to be dismissed. He

relied upon a judgment of the Kerala High Court in the matter of

Raman Pillai Krishna Pillai and others v. Kumaran
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Parameswaran and others 1 to buttress his submission.

5. I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

6. For the sake of convenience, additional substantial question of law

(No.2) is taken first.

Answer to additional substantial question of law (No.2):-

7. It is the case of the plaintiff that Heera Dai was not the legally

wedded wife of Suku for which issue No.2 was struck by the trial

Court. It is also the case of the plaintiff that she was concubine /

mistress of Suku, as Suku never married her.

8. The trial Court held that the relationship of Heera Dai with Suku as

concubine is established, but since the fact of concubine is

established between both of them and Suku kept her as wife and

they are living as husband wife and she was maintained by Suku

during his lifetime and living for fairly long time as husband wife

and maintaining her as wife, it would raise the presumption that

Suku has accepted her as wife and the plaintiff also has accepted

her as his aunt which goes to show that there was relationship of

husband wife between Suku Heera Dai and as such, Heera Dai

was entitled to alienate the suit property, which the first appellate

Court reversed holding that there was no marriage between Heera

Dai Suku and merely because they were living as husband wife

and the plaintiff has allegedly accepted her as his aunt, no

presumption of marriage can be drawn. The first appellate further

held that the plaintiff has established that Heera Dai was the
1 AIR 2002 Kerala 133
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concubine of Suku, but she was not his wife, as such, there was no

relationship of husband wife between them and merely because

there is mutation in the property held by Suku, it would not give rise

to presume that there was valid marriage between Heera Dai

Suku and as such, reversed the said finding recorded by the trial

Court. The trial Court while answering issue No.2 has clearly

recorded a finding that the plaintiff has established that the

relationship between his uncle Suku Heera Dai was that of

concubine, thus, it is established that Suku had kept her as his wife

and their relationship was that of a husband wife and since Suku

was maintaining her and the plaintiff has also accepted her as aunt

and since she was residing in Suku’s house, there is presumption

that they are husband wife and thereby the trial Court has

dismissed the suit holding the alienation made by Heera Dai in

favour of Jal Singh as proper. That finding of the trial Court had

become final, as against that finding, no appeal was preferred. The

first appellate Court has also held that Heera Dai was concubine of

Suku and therefore she was not entitled to alienate the property of

Suku.

9. In the matter of Gokal Chand v. Parvin Kumari 2, the Supreme

Court has held that continuous cohabitation of woman as husband

and wife and their treatment as such for a number of years may

raise the presumption of marriage, but the presumption which may

be drawn from long cohabitation is rebuttable and if there are

circumstances which weaken and destroy that presumption, the

Court cannot ignore them. Similar proposition of law has been laid

2 AIR 1952 SC 231
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by the Supreme Court in the matters of Badri Prasad v. Dy.

Director of Consolidation and others 3, M. Yogendra and others

v. Leelamma N. and others 4, Tulsa and others v. Durghatiya

and others 5, Challamma v. Tilaga and others 6 and Chanmuniya

v. Virendra Kumar Singh Kushwaha and another 7.

10. There is uncontroverted evidence on record, as held by the trial

Court and the first appellate Court also, to hold that Heera Dai was

not the legally wedded wife of Suku and she was his concubine.

Though presumption was available that long relationship or living

together for long time, marriage between them may be presumed,

but it is a rebuttable presumption and in that case it has been held

that the plaintiff has clearly proved that Heera Dai was only

concubine of Suku and not legally wedded wife of said Suku and

there is no evidence on record to hold that they lived together as

husband wife and they were treated by one and all and also by

the society as husband wife. In absence of that piece of

evidence, both the Courts are justified in not holding so.

11. The Supreme Court in the matter of D. Velusamy v. D.

Patchaiammal 8 while dealing with the meaning of the word ‘wife’

under Section 125(1) of the Code of Criminal Procedure, 1973, has

held that ‘wife’ means lawfully married wife, there is no scope to

include a woman not lawfully married within the expression of ‘wife’.

12. Accordingly, by virtue of Section 8(a) of the Hindu Succession Act,

1956 read with the Schedule, only the property of a male Hindu

3 AIR 1978 SC 1557
4 (2009) 15 SCC 184
5 AIR 2008 SC 1193
6 (2009) 9 SCC 299
7 (2011) 1 SCC 141
8 2011(1) M.P.H.T. 228 (SC)
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dying intestate shall devolve upon the heirs, being the relatives

specified in Class I of the Schedule which includes widow, but it

does not include a mistress or a concubine or concubine / mistress

cannot take place the status of widow.

13. Therefore, Heera Dai would not succeed the property of Suku and

as such, the alienation made by her has rightly been annulled by

the first appellate Court which is neither perverse nor contrary to

record. The additional substantial question of law (No.2) is

answered accordingly.

Answer to substantial question of law (No.1): –

14. Now, the next question would be, what is the effect of non-marking

the sale deed dated 27-7-1998 as an exhibit?

15. Admittedly, certified copy of the sale deed dated 27-7-1998 was

produced before the Court, but it was not marked as exhibit and the

plaintiff has questioned the sale deed that Heera Dai was not

competent to alienate the suit land in favour of defendant No.1 and

defendant No.1 has claimed that she has validly transferred the suit

land by sale deed dated 27-7-1998. But the fact remains that the

fact of sale by Heera Dai in favour of defendant No.1 is an admitted

fact and by virtue of Section 58 of the Evidence Act, 1872, admitted

facts need not be proved, rather it is an undisputed fact, as the

contents of the sale were not under dispute and the question would

be, what would be the effect of non-marking the sale deed as

exhibit, as the fact of sale by Heera Dai in favour of defendant No.1

is not in dispute?

16. Order 13 Rule 4 of the Code of Civil Procedure, 1908 deals with
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endorsements on documents admitted in evidence. Rule 4 of

Order 13 of the CPC states as under: –

“4. Endorsements on documents admitted in
evidence.–(1) Subject to the provisions of the next
following sub-rule, there shall be endorsed on every
document which has been admitted in evidence in the
suit the following particulars, namely : –

(a) the number and title of the suit,

(b) the name of the person producing the document,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted;

and the endorsement shall be signed or initialled by the
Judge.

(2) Where a document so admitted is an entry in a
book, account or record, and a copy thereof has been
substituted for the original under the next following rule,
the particulars aforesaid shall be endorsed on the copy
and the endorsement thereon shall be signed or initialled
by the Judge.”

17. The Travancore-Cochin High Court in the matter of Kannu Asan v.

Trav. Forward Bank Ltd. 9 relying upon the decision of the Privy

Council in the matter of Sadik Hussain v. Hashim 10 held that the

documents should be admitted in evidence by complying with the

provisions of Order 13, Rule 4 of the CPC. The said decisions have

been followed by the Kerala High Court in the matter of Raman

Pillai Krishna Pillai and others v. Kumaran Parameswaran and

others 11.

18. In Sadik Hussain (supra), their Lordships of the Privy Council

strongly deprecated the failure of presiding Judge to observe the

provisions of Order 13 Rule 4 of the CPC to endorse with his own

hand a statement that a document proved or admitted in evidence,
9 1956 KLT 203
10 AIR 1916 Privy Council 27
11 AIR 2002 Kerala 133
9

was proved against or admitted by the person against whom it was

used and stated, and their Lordships further held that they would

refuse to read or permit to be read or used any document not

endorsed in the manner required.

19. In the matter of Ratanlal v. Dauda 12, Sadik Hussain (supra) was

considered by the Rajasthan High Court and it was held as under: –

“These observations of their Lordships of the Privy
Council certainly show the great importance to be
attached to the endorsement required by Order 13 Rule
4, because it avoids all complications at a later stage as
to whether a particular document has been admitted in
evidence or not.”

20. In the matter of Mukhi Ram v. Kamta Prasad Balam Das 13, the

Patna High Court has followed the principle of law laid down by the

Privy Council in Sadik Hussain (supra).

21. In the matter of Jadibai v. Harsingh 14, the M.P. High Court followed

the principle of law laid down in Sadik Hussain (supra) and held

that when documents are duly produced – the failure of Courts to

make endorsement, documents would not be inadmissible by

observing as under: –

“15. It is thus clear that their Lordships of Privy Council
in deprecating non-observance of the Rule and in giving
a warning of the character referred to above had in their
mind the situation in which controversy had legitimately
arisen whether certain documents had been properly
produced and admitted in evidence or not. It is in
connection with such a matter that the non-observance
of the Rule should be considered fatal. But where the
documents are duly produced without objection and
being certified copies of public documents can be taken
to be proved and where after such production the
opposite party had fair opportunity to rebut that material it
cannot be said that the documents should be left out of
consideration on account of non-compliance with what
may be called a mere formality of making an
12 AIR 1954 Rajasthan 173
13 AIR 1937 Patna 222
14 1963 JLJ 842 (CN 183)
10

endorsement as to their admission. Evidently the
plaintiffs had no control over the presiding officer and in
the entire context such non-compliance should not in any
way prevent this Court from referring to those
documents.”

It was further held by His Lordship that the irregularity regarding

non-compliance with Order 13 Rule 4 of the CPC does not affect

the merits of the case; and decree cannot be reversed in appeal. It

was observed as under: –

“16. The irregularity regarding non-compliance with
Order 13, Rule 4 C.P.C. is one in a proceeding in the suit
and section 99 C.P.C. fully justifies the view that for such
irregularity which does neither affect the merits of the
case or the jurisdiction of the Court the decree of the
Court below need not be set aside.”

22. The Supreme Court in the matter of Vimla Devi and others v.

National Insurance Company Limited and another 15 has clearly

held that despite the documents having been referred by the

claimants at the time of recording evidence, if the Court did not

exhibit those documents, then in such an event, the claimants

cannot be denied of their right to claim compensation on such

ground, as non-exhibiting of documents is only a procedural lapse

and that cannot be made basis to reject the claim petition,

particularly when the claimants (therein) adduced oral and

documentary evidence on record to prove their case.

23. Reverting to the facts of the present case in the light of the

principles of law laid down in the above-stated judgments (supra),

in this case, the fact of sale by Heera Dai in favour of defendant

No.1 is not in dispute, rather the fact of sale by Heera Dai in favour

of defendant No.1 is an admitted fact and admitted fact need not be

proved by virtue of Section 58 of the Evidence Act, 1872.

15 (2019) 2 SCC 186
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Therefore, non-marking of document – sale deed dated 27-7-1998

as exhibit though produced before the trial Court remains an

irregularity, as it neither affected the merits of the case nor the

jurisdiction of the Court which has passed the decree, and would

not go to the route of the matter once the fact of sale is admitted

between the parties and that is not in dispute. As such, non-

marking of sale deed would be an irregularity not affecting the

merits of the matter, though it could have been marked by the trial

Court strictly as observed by the Privy Council in Sadik Hussain

(supra) and no prejudice has been caused to the appellants /

defendant by non-marking the said document as exhibit, as it is

admitted position on record and the defendant has not disputed the

said document. In that view of the matter, the substantial question

of law (No.1) is answered against the defendant and in favour of

the plaintiff.

24. Accordingly, I do not find any merit in the second appeal. The

second appeal deserves to be and is accordingly dismissed . No

order as to cost(s).

25. Decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal)
Judge
Soma