Summary
In a suit for partition by the children of the alleged first wife of the deceased, the defendants (the second wife and her son) denied the first marriage. The Supreme Court affirmed the High Court's decree: the testimony of a village elder with special means of knowledge was relevant under Section 50 of the Evidence Act, prolonged cohabitation raised a strong presumption of marriage that the defendants met with mere denial, revenue entries conferred no title, and the first defendant's unexplained failure to enter the witness box, despite attending court, attracted an adverse presumption under Section 114(g).
Issues
- Whether the plaintiffs established a valid marriage between their mother and the deceased, primarily on the oral evidence of PW-2.
- Whether a presumption of marriage arose from prolonged cohabitation and whether the defendants rebutted it.
- What consequence follows from a party's failure to enter the witness box when the facts in issue lie within her exclusive knowledge.
Provisions considered
- Section 50, Indian Evidence Act, 1872Opinion as to relationship expressed by conduct of a person who, as a member of the family or otherwise, has special means of knowledge is a relevant fact. PW-2, a 75-year-old resident of the plaintiffs' mother's village with long-standing familiarity with both families, deposed from personal knowledge to the marriage, the births, the ouster and the deceased's continued visits; his evidence was not hearsay, satisfied the requirement of special means of knowledge and was unimpeached in cross-examination. (¶¶ 20, 21, 22, 25, 29, 30, 31)
- Sections 101 and 102, Indian Evidence Act, 1872Burden of proof lies on the party asserting a fact and never shifts, while onus shifts as evidence is evaluated. The plaintiffs, having proved the marriage through PW-2, the deceased's conduct and the genealogical chart, discharged their burden; the onus shifted to the defendants, who offered only denial. (¶¶ 41, 43, 44, 45, 46)
- Section 114, illustration (g), Indian Evidence Act, 1872Where the first defendant, central to the controversy, abstained from the witness box though the record showed her present in court during the examination of several witnesses, and no medical evidence supported her plea of incapacity, the adverse presumption that evidence withheld would be unfavourable to her was held inevitable. (¶¶ 52, 53, 55, 56)
- Order XXVI Rule 1, Code of Civil Procedure, 1908The rule permits examination on commission of a person unable to attend court from sickness or infirmity. The first defendant, pleading age and arthritis, neither applied for a commission nor explained the omission; her failure to use a safeguard tailored to her alleged condition showed wilful shielding from judicial scrutiny. (¶¶ 57, 58)
Held
- Where documentary and contemporaneous material is scarce, the testimony of a person with long-standing village-level familiarity with the families, speaking from personal observation rather than gossip, falls within Section 50 of the Evidence Act and can establish the relationship; PW-2's evidence, consistent with the genealogical chart Ex.P-7 and unshaken in cross-examination, established the marriage of the plaintiffs' mother with the deceased. (¶¶ 25, 28, 29, 30, 31, 32, 33)
- A strong presumption of valid wedlock arises where a man and woman have cohabited for a long period as husband and wife; though rebuttable, it can be displaced only by unimpeachable evidence and a heavy burden lies on the party disputing it. The deceased's regular visits to the plaintiffs and their mother after bringing in the second wife supported the inference of continued cohabitation, and the first defendant's bare denial did not rebut the presumption. (¶¶ 38, 39, 40, 42)
- The defendants' genealogical chart Ex.D-2, which omitted the plaintiffs and their mother without explanation, undermined their denial; the unsupported plea that the plaintiffs' mother belonged to a different caste was mere speculation; and it was not their case that the plaintiffs were born of any other marriage. (¶¶ 46, 47, 48)
- Entries in revenue records have only presumptive and fiscal value and do not confer title, which can be decided only by a competent civil court; the defendants could not take refuge in them. (¶ 49)
- Where a party does not enter the witness box to state her own case on oath and offer herself for cross-examination, a presumption arises that the case set up by her is not correct. The first defendant's silence on facts within her exclusive knowledge, when she was physically present in court and could have sought a commission under Order XXVI Rule 1 CPC, was deliberate evasion attracting the adverse presumption under Section 114(g). (¶¶ 50, 51, 52, 53, 54, 55, 56, 57, 58)
- On the preponderance of probabilities the plaintiffs' consistent and corroborated evidence outweighed the defendants' bare denials, and the High Court's decree for partition called for no interference. (¶¶ 59, 60)
Result
Appeal dismissed; the High Court's judgment dated 28.10.2010 in RFA No. 935 of 2005 decreeing the suit for partition affirmed; no order as to costs.