Pran Gopal Sharma vs Jotswna Sharma And Ors

[1] This appeal was admitted for consideration of following substantial question of law :

"Whether on the basis of the evidence led by the parties, the courts below were justified to hold that the plaintiff No.1 is entitled to be treated as the legal heir of Dhirendra Chandra Sharma, since deceased so far the suit property is concerned?"

[2] Brief facts are as under :

One Dhirendra Chandra Sharma died on 18.07.2002. He had married twice during his lifetime. Out of both marriages he had sons and daughters. After his death, his second wife Jotswana Sharma and her children filed Title Suit (Partition) No.04/2014 seeking partition of the properties left behind by the deceased Dhirendra Chandra Sharma. Defendants represent the children born to Dhirendra Chandra Sharma from the first wife. Defendant No.1 was the son of deceased Dhirendra Chandra Sharma. Defendant No.2 was the son of predeceased daughter of Dhirendra Chandra Sharma and defendant No.3 was the daughter of predeceased daughter of Dhirendra Chandra Sharma.

[3] The defendants filed a written statement in which they did not oppose the entitlement of any of the plaintiffs, except plaintiff No.1. This was on the ground that Jotswana had married Dhirendra Chandra Sharma prior to the death of his first wife. Defendants averred that Malati Goswami, first wife of Dhirendra Chandra Sharma died on 18.10.1973 whereas Jotswana got married to the deceased in the year 1970. Such marriage during the lifetime of the spouse of the deceased being void and therefore, the plaintiff No.1 Jotswana would get no share out of the property of the deceased.

[4] The trial Court framed the following issues :

"1. Whether the suit is maintainable in its present form?

Whether there is any cause of action for filing this suit?

Whether the suit is barred by limitation or by any other Act/rules?

Whether plaintiff is entitled to get decree?

What other relief/relieves the parties are entitled to?"

[5] In the context of the opposition of the defendants to the claim of the plaintiff No.1, the trial Court assessed the evidence on record. Reference was made to the depositions of the witnesses of the plaintiffs as well as those of the defendants. Neither side had produced any documentary evidence either of the death of the first wife of Dhirendra Chandra Sharma or his marriage with Jotswana. The trial Court on the basis of oral evidence came to the conclusion that the defendants failed to prove the factum of marriage of Jotswana with Dhirendra Chandra Sharma during the lifetime of his first wife. The trial Court, therefore, passed the decree in favour of the plaintiffs.

[6] The defendants challenged the said judgment and decree before the appellate Court. Appellate Court, in a brief discussion, dismissed the appeal upon which present second appeal has been filed.

[7] Only question of relevance is whether the findings arrived at by the Courts below suffer from perversity. P.W.-1, Smt. Shefali Sharma being the daughter of the second wife of the deceased obviously had no personal knowledge about the marriage. The plaintiff No.1, the second wife of Dhirendra Chandra Sharma was examined as P.W.2. In the examination-in-chief she had stated that she was the wife of late Dhirendra Chandra Sharma. He had married her after the death of his first wife. In the cross-examination, however, she could not give the time and date of her marriage or the date of the death of the first wife of Dhirendra Chandra Sharma. She could also not state whether her marriage took place in the year 1970 whereas Malati the first wife died in the year 1973.

[8] Defendant No.1, the son of the first wife of Dhirendra Chandra Sharma was examined as D.W.1. He stated that Jotswana had married his father in the year 1970 during the lifetime of his mother Malati who, according to him, had died on 18.10.1973. In the cross-examination this aspect was challenged by the plaintiffs. He was also questioned about the date of death of his mother being 18.10.1973. The defendants had also examined persons claiming to be neighbours were known to the family who also orally deposed that the marriage of Jotswana with Dhirendra Chandra Sharma had taken place during the lifetime of his first wife.

[9] It was on the basis of such evidence, the trial Court as well as the first appellate Court came to the conclusion that the defendants failed to establish the fact of marriage of the plaintiff No.1 during the lifetime of the first wife of Dhirendra Chandra Sharma. The best person to throw light on this aspect was the plaintiff No.1 herself who as noted, in the deposition had stated that her marriage with Dhirendra Chandra Sharma had taken place after the death of his first wife. Of course in the cross-examination she could not give the details of the date of marriage or the date of death of the first wife. However, being an illiterate lady, after so many years she was not expected to recall such details. The issue was raised by the defendants. The burden of proof, therefore, was on the defendants to establish this assertion. The defendants could not produce any evidence except for oral statements. The trial Court has observed that the defendant No.1 could have been very young around the time when his mother died and around the time according to him his father had married Jotswana.

[10] All in all, this is a case of concurrent findings based on assessment and appreciation of evidence on record. Since no perversity is pointed out, the second appeal is dismissed.

[11] Pending application(s), if any, also stands disposed of.