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Judgment
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and decree dated 16.05.2007, passed by the learned Additional District Judge (Fast Track Court), Una, District Una, H.P. (learned Appellate Court), vide which judgment and decree dated 28.03.2000, passed by the learned Sub-Judge (II), Una, H.P. (learned Trial Court) were set aside. (The parties shall be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court that she is owner in possession of the estate of Garibu mentioned in the head note of the plaint. It was asserted that Garibu was the owner in possession of the suit land. He was the plaintiff’s husband. He died on 22.05.1980, leaving behind the plaintiff as his only legal heir. The defendants got a mutation No. 161 sanctioned in his favour behind the plaintiff's back. The defendants were threatening to interfere with the plaintiff’s possession. They were requested not to do so, but in vain. Hence, the suit was filed for seeking the relief mentioned above
The suit was opposed by filing a written statement admitting that Garibu was the owner of the suit land. It was specifically denied that the plaintiff was Garibu’s wife. It was asserted that Garibu was married to Shardi, who died four years after her marriage to Garibu. No child was born to them. Plaintiff Bhago is the wife of Kullu. Two children were born to her and Kullu. The plaintiff has no concern with Garibu. The defendants are the brothers and sisters of Garibu, and mutation was rightly sanctioned in their favour. Hence, it was prayed that the suit be dismissed.
A replication denying the contents of the written statement and affirming those of the plaint was filed.
Learned Trial Court framed the following issues on 12.06.1989:
1.Whether the plaintiff is the wife of deceased Garibu, as alleged? OPP
2.If issue No.1 is proved in the affirmative, whether the plaintiff is owner in possession of the suit land, as alleged? OPP.
3.Whether the suit is not maintainable? OPD.
4.Whether the plaintiff has no locus standi to file the present suit? OPD.
5.Whether the suit is not within time? OPD.
6.Relief.
The parties were called upon to produce the evidence. The plaintiff examined Ram Singh (PW-1), Shanti Lal (PW-2), Anil Kumar (PW-3), Jai Gopal (PW-4), herself (PW-5), and Thakur Dass (PW-6). The defendants examined defendant No.1 Jhonda Ram (DW-1), Telu Ram (DW-2) and Gullu Ram (DW-3).
An application under Order XI Rule 14 of the CPC was filed, which was disposed of on 20.12.1999. The plaintiff examined Ram Asra (PW-7), Kanu Ram Sharma (PW-8), Mohinder Pal (PW-9) and Radhey Mohan (PW-10). The defendants examined Dilbag Singh (DW-4).
The learned Trial Court held that the plaintiff had failed to prove that she was the legally wedded wife of Garibu. She set up a document, in which it was asserted that marriage was solemnised by Chaderandazi. No evidence was produced in support of this fact. Plaintiff was previously married to Kullu, and she had two children. Plaintiff herself stated that no Pandit was called. No sweets were distributed. The evidence that plaintiff and Garibu were residing together was also not satisfactory. The defendants were brothers and sister of Garibu and entitled to succeed to him. Therefore, the learned trial Court answered Issue No. 1 and 2 in the negative, Issue No. 3 and 4 in the affirmative, Issue No. 5 as not pressed, and dismissed the suit.
Being aggrieved by the judgment and decree passed by the learned trial Court, the plaintiff filed an appeal, which was decided by the learned Additional District Judge (learned Appellate Court). The learned Appellate Court held that the agreement (Ext.PW-2/A) was duly proved by the son of the scribe. The non-pleading of customary marriage was not material. The admission that no Pandit was called and no sweets were distributed would not disprove the plaintiff's version that a marriage was solemnised between the parties. The deceased Garibu had executed a gift deed in which he had described the plaintiff as his wife. A certificate of death of the plaintiff was issued in which he was described as the wife of Kullu, but this was during the pendency of the suit and was procured by the defendant to create evidence in their favour. The plaintiff was proved to be Garibu’s wife and the learned trial Court erred in holding otherwise. Therefore, the learned Appellate Court allowed the appeal and set aside the judgment and decree passed by the learned trial Court.
Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant filed an appeal, which was admitted on the following substantial questions of law on 27.08.2008: -
1.When the Trial Court dismissed the application moved by plaintiffs- respondents under Order 11 Rule 14 of the Code of Civil Procedure, seeking the production of Gift Deed dated 31.5.1969 as not maintainable, has not the Lower Appellate Court committed grave illegality in relying upon the certified copy of the said Gift Deed admitted in evidence by the Trial Court as an additional evidence without disposing off the application under Section 65 moved by plaintiffs-respondents seeking leave to adduce secondary evidence?
2.Whether lower Appellate Court has committed grave procedural illegality and irregularity in putting reliance on inadmissible evidence which was not only in variance to the pleadings but was beyond the scope of the case pleaded by the plaintiffs, especially Ex. PW2/A, PW3/A, PW3/B and Ex. PX? Has not the Lower Appellate Court committed grave illegality and error of law in discarding from evidence relevant piece of evidence Ex. DW4/A and Ex. D2?
I have heard Mr Bhupender Gupta, learned Senior Advocate assisted by Mr Harshit Sharma, Advocate, for the appellant and Mr Vivek Thakur, Advocate, for respondents No. 1 and 2.
Mr Bhupender Gupta, learned Senior Advocate, for the appellant submitted that the plaintiff had failed to prove her marriage with Garibu. She set up an agreement in which it was mentioned that the marriage was solemnised by Chadarandanzi, but there is no proof that this was a recognised form of marriage.
The evidence led by the plaintiff to show that she was Garibu's wife was not satisfactory. She was described as the wife of Kullu in her death certificate. The gift deed was not proved as per the law, and mere production of the certified copy is not sufficient to prove the gift deed. Learned Appellate Court erred in reversing the well-reasoned judgment passed by learned Trial Court. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Trial Court be set aside. He relied upon the following judgments in support of his submissions:
Ramadhar and others vs. State of U.P. Writ-B No. 474 of 2025, decided on 01.01.2026;
Sangeetha R.Krishna v. Ranijth R. Mat Appeal No. 419 of 2017, decided on 02.12.2020;
P.Meenambal vs. R. Rajeshwari C.R.P. No. 247 of 1992 and CMP No. 1213 of 1992, decided on 30.04.1997;
V.K. Kamalam vs. Panchali Amma 1998 AIR (Ker) 265; and Deivanai Achi vs. R.M AL CT Chaidambaram Chettiar 1954AIR (Mad) 657.
Mr Vivek Thakur, learned counsel for respondents No.1 and 2, submitted that the plaintiff was described as Garibu’s wife in the agreement, gift deed, and electoral roll, which proved the relationship between the plaintiff and Garibu. Garibu and Bhago resided together as husband and wife, which High Court of H.P.
created a presumption in favour of the marriage. The learned Appellate Court had rightly considered these circumstances. There is no infirmity in the judgment and decree passed by the Appellate Court. Hence, he prayed that the present appeal be dismissed. He relied upon the following judgments in support of his submissions:
Akshya Kumar Behera vs. Purna Chandra Behra: 1990 SCC OnLine Ors 96; and
Lala Rajbali Lal & Ors. vs. Paratappur Co. Ltd. Manu/BH/0010/1940.
I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.
Substantial question of law No.1
The record of the learned trial Court shows that the plaintiff had filed an application under Section 65 of the Indian Evidence Act for seeking permission to adduce secondary evidence of a gift deed executed by Garibu in favour of Banta Ram. This application was opposed by the defendant. The application was listed for consideration on 1.10.1999. Arguments were heard, and the matter was listed for orders on 16.10.1999. However, the learned judge wanted some clarification, and the matter was listed for fresh consideration on 15.11.1999, on which date an application under Order 11 Rule 14 CPC was filed. This application was dismissed by the learned trial Court on 12.06.2000. However, no order was passed on an application under Section 65 of the Indian Evidence Act, and the application remained pending.
The plaintiff examined Mahinder Pal, Senior Assistant, who brought the register and stated that Ext.PX was the photocopy and a proper copy of the document retained by him. The plaintiff also examined Radhey Mohan, who stated that his father had expired, but he could not identify the signatures of his father on the photocopy.
The original gift deed (Ext. PX) was never produced before the Court. The gift deed is required to be attested and can be proved by examining the signatures of an attesting witness. It was laid down by the Hon’ble Supreme Court in K. Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354: 2008 SCC OnLine SC 1814 that a gift deed can only be proved by examining one of the attesting witnesses. It was observed at page 363:
The legality and the validity of the said deed of gift was under challenge in the trial for which the parties have led evidence and therefore in the present case the proviso to Section 68 of the Act does not become operative and functional. In such cases, the document has to be proved in terms of Section 68 of the Act. In this regard, we may appropriately refer to a decision of this Court in Rosammal Issetheenammal Fernandez v. Joosa Mariyan Fernandez [(2000) 7 SCC 189] wherein it was held as under: (SCC pp. 191 & 192, paras 7 & 11)
“7.… In considering this question, whether there is any denial or not, it should not be casually considered as such finding has a very important bearing on the admissibility of a document which has important bearing on the rights of both the parties. … It must also take into consideration the pleadings of the parties, which have not been done in this case. Pleading is the first stage where a party takes up its stand in respect of facts which they plead.
***
11.Under the proviso to Section 68, the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered, is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play, but if there is denial, the proviso will not apply.”
Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the appellant to prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. DW 3, who was an identifying witness also in Ext. B-2, specifically stated that he had not signed as an identifying witness in respect of Ext. B-2 and also that he did not know about the signature in Ext. B-2. Besides, considering the nature of the document which was a deed of gift and even assuming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory requirement and obligation to get an attesting witness examined but still the fact remains that the plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document.
In the present case, no attesting witness was produced before the Court, no person proved the signatures of the attesting witness, and the gift deed was not properly proved.
It was submitted that no objection was raised to the exhibition of the gift deed and this objection cannot be raised before this Court. This submission cannot be accepted. The document was by law required to be proved by examining and attesting witnesses. Therefore, the question of objection does not arise. It was laid down by the Hon’ble Supreme Court in Vinod Jaswantray Vyas v. State of Gujarat, 2024 SCC OnLine SC 1672 that mere marking of a document does not dispense with its proof. It was observed:
36…. Thus, mere marking of exhibit upon the letter without the expert deposing about the opinion given therein would not dispense with the proof of contents of the document as per the mandate of the Indian Evidence Act, 1872.
This Court in the case of Sait Tarajee Khimchand v. Yelamarti Satyam alias Satteyya (1972) 4 SCC 562 held as follows: —
“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is commonplace to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs.” (emphasis supplied)
In the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003) 8 SCC 745, it was held as follows:
“16.…. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue” ……”
In the present case, the document was by law required to be proved by examining the attesting witness and in the absence of the attesting witness, the document could not have been proved by examining the official from the Registrar's Office, especially when an application for proving the document by means of secondary evidence was filed, which was pending. It was laid down by the Karnataka High Court in Budavant Subraya Palekar v. Babu Vajra Chandavarkar, 2003 SCC OnLine Kar 148: ILR 2004 Kar 4068, that there is no distinction between the production of a certified copy and summoning of Volume-I from the office of the Sub Registrar, because the contents of Volume-I are no better than the certified copy. It was observed at page 4072:
“7…..The evidence adduced by the defendant through PW 3 has no useful purpose to prove the case of the defendant about the execution. The Volume-I, a book regularly maintained by the office of the Sub-Registrar, was summoned through PW 3, and he has given evidence saying that the certified copy of the document would be delivered to the public with reference to the contents of Volume-I. According to the procedure and practice, whenever a document is registered, the copy of the document is recorded in Volume-I for official purposes. The Vol-I does not contain the signatures or the LTM of the parties, which are usually taken on the original of the document. There does not appear to be any substantial distinction between production of a certified copy and summoning of Volume I. The contents of Volume I are no better than a certified copy issued by the Sub-Registrar. The Trial Court comes to the conclusion that the entries in Volume I relating to the transaction being 30 years old, a presumption is drawn under Section 90 of the Evidence Act.
xxxxxx 10…..
[T]he facts in the present case are squarely covered by the ratio laid down by the Supreme Court in Kalidindi Venkata Subbaraju's case. In the first place, the defendant-purchaser has not examined himself to lay a foundation for leading secondary evidence for production of secondary evidence by way of the certified copies. Nothing is said in the evidence of the defendants about the availability or otherwise of the attesting witnesses. In the judgment it is observed that in the course of arguments, it is contended by the Counsel for the defendants that the attesting witnesses and the scribe are dead. The said observations are untenable. The availability of the witnesses would be a matter of evidence to be testified by the defendant or any other competent witnesses to that effect. It cannot be a matter of argument and surmises. In view of such serious lacunas, it is impermissible to invoke Section 90 to presume the genuineness and correctness of the contents of Ex. P. 5 on the basis of legal presumption.
Therefore, the document cannot be proved by bringing a witness from the office of the Sub- Registrar as has been done in the present case and the learned Appellate Court erred in relying upon the gift deed (Ext. PX). Hence, this substantial question of law is answered accordingly.
Substantial question of law No.2:
Learned Appellate Court relied upon the document (Ext.PW-2/A) in which it was mentioned that the husband of Bhago had expired. Two children were born to her. She was unable to maintain herself and her children. She had performed ‘Chaderandanzi’ with Garibu and had acknowledged Garibu to be her husband. She would reside in the house of Garibu as his wife and would perform the duties of the wife. This document was proved by Shanti Lal (PW-2), who stated that the agreement was written by the stamp vendor Ganpat Rai. He could identify the signature of Ganpat Rai.
The plaintiff Bhago never claimed in her statement that she had got any document written by Ganpat Rai. She never identified the document (Ext. PW2/A). Bhago was the best person to depose about the writing of the document, and she failed to do so. Therefore, this document will not advance the plaintiff’s claim.
The document was in the nature of an admission made by Bhago in her favour that she was the wife of Garibu. Such an admission is inadmissible under Section 21 of the Indian Evidence Act. It was contended that the admission would be admissible under Section 35 of the Indian Evidence Act, but nothing was shown to this Court to demonstrate that the register in which the entry is stated to have been made was official, the entry was made by a public servant in the discharge of his official duty or in performance of a duty specially enjoined by the law. Therefore, the document would not be admissible under Section 35 of the Indian Evidence Act, and the judgments in Akshya Kumar Behera (supra) and Lala Rajbali Lal (supra) do not apply to the present case.
Further, there is no evidence to show that Chaderandanzi was a recognised form of the marriage prevalent between the parties. It was held by the Kerala High Court in Sangeetha (supra) that Hindu marriage is considered to be duly solemnised upon the performance of all the ceremonies including invocation before the sacred fire and saptapadi, i.e. taking seven steps by the bride and the groom jointly before the sacred fire. A similar view was taken in Deivanai Achi (supra).
Therefore, in the absence of proof of the fact that ‘Chaderandanzi’ was a recognised custom, this document will not assist the plaintiff.
The plaintiff also relied upon the copies of electoral roll (Ext.PW-3/A and Ext.PW-3/B) in which she was described to be the wife of Garib Dass. This entry will not assist the plaintiff. It was held in Sabera Begum v. G.M. Ansari, 1978 SCC OnLine Bom 105 that the entry in the electoral roll is not proof of the relationship. This position was reiterated in Ramadhar (supra) wherein it was observed:
The documentary evidence adduced by the petitioners were in the form of Pariwar Register and Voter List. In both the documents name of Smt. Bhoga is shown to be wife of Tekan, but the said documents have been prepared in 1979 i.e. after death of Tekan and certainly cannot be relied upon. Apart from the above, even if aforesaid documents cannot be proof of marriage of Smt. Bhoga with Tekan, because voter list only reflects the information given to the Election Commission and the authority who has prepared Pariwar Register or Voter List was not examined regarding the fact as to on what basis Smt. Bhoga was recorded as wife of Tekan.
In the present case, the voter list was proved by Anil Kumar (PW-3), who stated that the voter list was not prepared by him. He has not deposed about the basis for preparation of the voter list, and his testimony does not establish the authenticity of the voter list.
The plaintiff also examined Jai Gopal (PW-4), who stated that Garib Dass resided in AB-22 Block at Nangal. The plaintiff resided with Garib Dass as his wife. This testimony will not assist the plaintiff because the plaintiff herself filed a copy of the letter written to her by the Regional Provident Fund Commissioner, in which her address was mentioned as House No. 274-FF, Nangal Township, District Ropar (Pb), which does not show that the plaintiff and Garib Dass resided in Block AB. Therefore, the testimony of this witness does not prove that the plaintiff was residing as the wife of Garibu.
Thakur Dass (PW-6) stated that the plaintiff is the wife of Garibu. She is the heir of Garibu. He admitted in his cross-examination that two children were born to the plaintiff from Garibu. He admitted that Garibu was married to Shardi. He admitted that he had not attended the marriage between Garibu and the plaintiff.
This witness was examined to prove the relationship. It was laid down by the Hon’ble Supreme Court in Dalgobinda Paricha v. Nimai Charan Misra, 1959 SCC OnLine SC 210 that only the opinion expressed by the conduct is admissible under Section 50 of the Indian Evidence Act. It was observed:
6….If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant & may, therefore, be proved. We are of the view that the true scope and effect of section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80).
''It is only 'opinion' that is expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is 'the conduct', but what is made admissible in evidence is the opinion, the opinion as expressed by such conduct. The offered item of evidence thus only moves the Court to an intermediate decision: its immediate effect is only to move the Court to see if this conduct establishes any 'opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the 'opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, 'the opinion of a person'. It still remains for the Court to weigh such evidence and come to its own opinion as to the 'factum probandum'- as to the relationship in question."
We also accept as correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: 'Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC201 '.
7.It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of S. 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of the relationship of one person to another in a case where the Court has to form an opinion as to that relationship. Part II of the Evidence Act is headed "On Proof". Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs S. 60 which says inter alia :
"Section 60. Oral evidence must, in all cases whatever, be direct; that is to say-if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds." If we remember that the offered item of evidence under S. 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in S. 60; if the conduct relates to some thing which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of S. 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of S. 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under S. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of S. 60. This, in our opinion, is the true inter-relation between S. 50 and S. 60 of the Evidence Act. In Queen Empress v. Subbarayan, ILR 9 Mad 9 at p. 11, Hutchins J., said :
"That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge."
While we agree that S. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge, we do not agree with Hutchins J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that S. 50 puts any such limitation.
In the present case, Thakur Dass (PW6) did not state anything about the conduct and his testimony does not prove the relationship.
It is undisputed that Garibu was married to Shardi and the plaintiff was married to Kullu. Therefore, evidence was required to be led that Shardi and Kullu had died before the marriage between Bhago and Garibu. Gullu Ram (DW-3) stated that Shardi was his sister. Her marriage was solemnised in the year 1950. She died four years after the marriage. He stated in his cross-examination that he was illiterate and could not say that Shardhi had died 45 years ago. He volunteered to say that her marriage was solemnised three years after the partition of India and she had died four years after her marriage. Partition caused great upheaval in Indian Society, and a person cannot be mistaken about it. His testimony that the marriage was organised three years after the partition shows that the marriage was solemnised in the year 1950. Shardhi survived for four years after her marriage, which means that she had died in the year 1954. Therefore, the plaintiff could not have married Garibu in the year 1951 as projected in the agreement (Ext.PW-2/A), and the testimony of this witness will make the plaintiff's case suspect.
The plaintiff admitted in her cross-examination that she was married to Kullu, who was a resident of Una. She admitted that two children were born to her. She admitted that Garibu was married to Shardi. She stated that no band was played in her marriage. No Barat was brought. There was no Pandit, and sweets were distributed. She has not explained how the marriage was solemnised. As per her testimony, the marriage was not solemnised, as per the traditional Hindu law, because there was no Pandit. She has not mentioned any other form of marriage recognised in the area, by which the marriage could have been solemnised. Therefore, the learned trial Court had rightly held that the testimony of the plaintiff was not sufficient to prove the marriage and the learned Appeal Court erred in reversing this finding.
The learned Appellate Court held that the learned trial Court had misinterpreted the evidence and the evidence was rejected on technical grounds. It is difficult to understand what is meant by technical ground. Once the legislature has enacted the Indian Evidence Act to regulate the evidence before the court, it is impermissible for any Court to reject the evidence or receive the evidence dehors the provisions of the Indian Evidence Act on the ground that the reception of such evidence would be advancing the substantial justice. It was laid down by the Full Bench of Allahabad High Court in Collector of Gorakhpur v. Palakdhari Singh, 1889 SCC OnLine All 42: ID (18E88-1890) 6 All 751 that anything which is not included in the Indian Evidence Act cannot be admitted. It was observed at page 776:
As to the first question, of course, as I have already indicated, there being no English common law of evidence antecedent to the Evidence Act, the only manner in which these judgments of 1874 could be excluded would be by reason of that Act itself. In s. Section 3 of that statute defines what relevant facts are and what are not, and in s. 5 of that enactment it is laid down that “evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.” So that this last section renders exclusive everything which is not covered by the purview of some other section which follows in the statute. Here, the case rests not upon applying any principle which is to be found in the English common law of evidence, but upon knowing whether this statute in s. 5 ever contemplated the alteration of the law as it stood at the time when the statute was passed. For the reasons stated by Mr Justice Mitter in his dissenting judgment in the Full Bench case of Gujju Lall v. Fatteh Lall [6 C. 171], I hold that the law of the land before the passing of the statute (I of 1872) was that a judgment such as that of Mr Justice Turner and my brother Brodhurst of 1874 would be admitted in evidence. I do not wish to add anything to those reasons, because
[44] I adopt them fully. This indeed is the conclusion at which, I understand, the learned Chief Justice and my brothers Straight and Tyrrell have also arrived.
It was held by Patna High Court in Mt. Khedia v. Mt. Turia, 1961 SCC OnLine Pat 105: AIR 1962 Pat 420 that the Judge cannot admit any evidence because he thinks that such evidence will help in deciding the matter. It was observed at page 422:
It is well settled that the Indian Evidence Act prohibits the employment of any kind of evidence not specifically authorised by the Act itself, and, therefore, it is unsound and not correct to say, as is attempted to be argued here, that the principle of exclusion adopted by the Indian Evidence Act shall not be applied to exclude matters which may be essential for the ascertainment of truth. On this subject, the observations of Lord Atkin, in Sris Chandra Nandy v. Rakhalananda, 68 Ind App 34: (AIR 1941 PC 16), are very apposite and may usefully be read here for guidance. The noble Lord, who delivered the judgment of the Board, at p. 45 (of Ind App): (at p. 20 of AIR), observed:
“What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute, to define. Once a statute is passed that purports to contain the whole law, it is imperative. It is not open to any judge to exercise a dispensing power and admit evidence not admissible by the statute because to him it appears that the irregular evidence would throw light upon the issue. The rules of evidence, whether contained in a statute or not, are the result of long experience choosing, no doubt, to confine evidence to particular forms, and, therefore, eliminating others which it is conceivable might assist in arriving at truth. But that which has been eliminated has been considered to be of such doubtful value, as on the whole, to be more likely to disguise truth than discover it is therefore discarded for all purposes and in all circumstances. To allow a judge to introduce it at his own discretion would be to destroy the whole object of the general rule.”
Thus, any evidence, which is not made admissible and relevant under the provisions of the Indian Evidence Act, cannot be admitted, and the Court rejecting evidence on the ground of irrelevancy or inadmissibility cannot be accused of being technical. He is merely upholding the law which he is bound to do as per the oath taken by him.
Thus, the approach of the learned Appellate Court was contrary to the enacted law, which vitiated the judgment passed by the learned Appellate Court.
Therefore, the learned Appellate Court erred in relying upon inadmissible evidence and holding that the marriage between the plaintiff and Garibu was proved. Hence, this substantial question of law is answered accordingly.
Final Order
In view of the above, the present appeal is allowed, judgment and decree passed by the learned Appellate Court are ordered to be set aside, while those passed by the learned Trial Court are ordered to be restored.
The present appeal stands disposed of in the aforesaid terms, so also the pending application(s), if any.
The record of the learned Courts below be returned along with a copy of this judgment.