Calcutta High Court (Appellete Side)
Sri Bisweswar Patra & Anr vs Sri Badal Kumar Sahoo & Ors on 31 August, 2021
1
27 31.08.2021
SA 160 of 2008
SAT 3741 of 2001
Sri Bisweswar Patra & anr.
vs.
Sri Badal Kumar Sahoo & ors.
Mr. Mukteshwar Maity ... for appellants
Mr. Maity, learned advocate appears on behalf of
appellants, who were defendant nos. 2 and 3 in the suit.
He submits, his clients purchased land from second wife
of predecessor-in-interest of plaintiffs, namely Shantabala
and Sashi Bhusan respectively. Plaintiffs filed the suit
claiming, inter alia, Shantabala could not have inherited
from Sashi Bhusan as she was not married to him or, in
any event, if there was a marriage, it was void.
He submits further, the trial Court correctly
dismissed the suit on finding that his clients' vendor was
wife of Sashi Bhusan. The appellate Court erred in
presuming that the marriage took place after coming into
effect of Hindu Marriage Act, 1955, on 18 th May, 1955.
This finding was on presumption. A question of law
arises on how there can be drawn a presumption in law
on appreciating evidence of the father, who had simply
said in evidence, recorded in year 1956, that he had not
seen Sashi Bhusan.
In context of aforesaid submissions, we
reproduce a paragraph from the judgment in original suit:
"Now, let us come to the evidence of
D.W. 2 Shantobala W/O Binod Behari.
Her evidence was taken on 11.3.96 at that
time her age was 70 years. In her
evidence she deposed that her marriage
took place 45 years ago. Thus her year of
marriage would be (1996-45) 1951. Her
year of birth 1926. Thus her age at the
time of marriage was (1951-1926) 25
years which is quite reasonable."
The lower appellate Court drew presumption on basis of,
inter alia, following extracted from its judgment:
"... ... ... There is no denial that
Kailash Dalapati is the father of D.W.2
and also that of Santosh Kumari. Now,
from the certified copy of the deposition it
appears that he deposed on 18.9.56
before Sri N.N.Sen, ld. Magistrate, 1st
Class, Tamluk in that misc. case. On
18.9.56 he deposed to the effect "no one
named Sasi Sahoo visits my house". This
is available from his examination in chief.
In cross-examination he stated "one Sasi
Sahoo lives at Teorkhali, P.S.
Bhagwanpore about 2 miles away from
my house. He is a P.U.B. and rich man. I
have not seen in the court compound.
From this evidence on 18.9.56 it may be
presumed that no marriage between
Santabala and Sasibhusan Sahoo took
place before 1956. This ext. has been
marked on 27.11.95. ... ... ..."
There is no primary document to prove date of
marriage of Shantabala and Sashi Bhusan. Both Courts
below, therefore, presumed on the date of marriage.
While the trial Court said it is in year 1951, the lower
appellate Court said it did not take place before year
1956.
We admit the appeal on the following question to
be answered.
"In drawing presumption regarding
date of marriage of Shantabala, whose
evidence is to be relied upon, Shantabala
or her father?"
Call for the records. Appellants will put in
requisites for preparing paper books and issuance of
notice of appeal.
Liberty to mention before the learned single
Judge having determination for hearing of the appeal,
when made ready.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
