Himachal Pradesh High Court
Des Raj vs Roshan Lal & Others on 6 August, 2026
2026:HHC:32828
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 375 of 2007
Reserved on: 23.07.2026
Date of Decision: 06.08.2026
.
Des Raj ...Appellant
Versus
Roshan Lal & others ...Respondents
_____________________________________
of
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the appellants
rt : Mr Bhupender Gupta, Senior
Advocate, with Mr Harshit Sharma,
Advocate, for the appellant.
For the respondents : Mr Vivek Thakur, Advocate, for
respondents No.1 and 2
Respondents No. 3(a), 4(a) to 4(C),
Respondents No. 5 and 6 proceeded
against ex parte.
Names of respondents No. 7 and 8
stand deleted.
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
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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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).
2. 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
of
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
rt
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
3. 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
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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.
4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on
of
12.06.1989:
rt
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.
6. 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).
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7. 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).
8. The learned Trial Court held that the plaintiff had
failed to prove that she was the legally wedded wife of Garibu.
of
She set up a document, in which it was asserted that marriage
was solemnised by Chaderandazi. No evidence was produced in
rt
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.
9. 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
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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
of
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
rt
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.
10. 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::: Downloaded on – 06/08/2026 20:41:27 :::CIS
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2026:HHC:32828Lower 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
of
Court committed grave illegality and error of law in
discarding from evidence relevant piece of evidence Ex.
DW4/A and Ex. D2?
11. I have heard Mr Bhupender Gupta, learned Senior
rt
Advocate assisted by Mr Harshit Sharma, Advocate, for the
appellant and Mr Vivek Thakur, Advocate, for respondents No. 1
and 2.
12. 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
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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
of
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;
rt 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.
13. 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
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
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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.
14. I have given a considerable thought to the
submissions made at the bar and have gone through the records
of
carefully.
Substantial question of law No.1
15.
rt
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
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under Section 65 of the Indian Evidence Act, and the application
remained pending.
16. 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
of
signatures of his father on the photocopy.
17. The original gift deed (Ext. PX) was never produced
rt
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:
30. The legality and the validity of the said deed of gift was
under challenge in the trial for which the parties have ledevidence 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)
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2026:HHC:32828“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
of
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,
rt
the proviso comes into play, but if there is denial, the
proviso will not apply.”
32. 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.
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18. 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.
.
19. 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
of
attesting witnesses. Therefore, the question of objection does
not arise. It was laid down by the Hon’ble Supreme Court in
rt
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 ofthe document as per the mandate of the Indian Evidence
Act, 1872.
37. 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::: Downloaded on – 06/08/2026 20:41:27 :::CIS
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2026:HHC:32828plaintiffs’ 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).
38. 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 bythe 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 canof
vouchsafe for the truth of the facts in issue” ……”
20. In the present case, the document was by law required
to be proved by examining the attesting witness and in the
rt
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:
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“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
of
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
rt
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.
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21. 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:
22. Learned Appellate Court relied upon the document
of
(Ext.PW-2/A) in which it was mentioned that the husband of
Bhago had expired. Two children were born to her. She was
rt
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.
23. 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
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failed to do so. Therefore, this document will not advance the
plaintiff’s claim.
24. 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
of
nothing was shown to this Court to demonstrate that the
register in which the entry is stated to have been made was
rt
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.
25. 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.
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taking seven steps by the bride and the groom jointly before the
sacred fire. A similar view was taken in Deivanai Achi (supra).
26. Therefore, in the absence of proof of the fact that
.
‘Chaderandanzi’ was a recognised custom, this document will
not assist the plaintiff.
27. 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
of
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
rt
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:
15. 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 bewife of Tekan, but the said documents have been prepared
in 1979 i.e. after death of Tekan and certainly cannot berelied upon. Apart from the above, even if aforesaid
documents cannot be proof of marriage of Smt. Bhoga
with Tekan, because voter list only reflects theinformation 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.
28. 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
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2026:HHC:32828the voter list, and his testimony does not establish the
authenticity of the voter list.
29. 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
of
Commissioner, in which her address was mentioned as House
No. 274-FF, Nangal Township, District Ropar (Pb), which does
rt
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.
30. 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.
31. 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
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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
of
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
rt
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.”
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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
of
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 :
rt “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 bethe 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 theevidence 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::: Downloaded on – 06/08/2026 20:41:27 :::CIS
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2026:HHC:32828it 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,
of
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.,
rt
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 sectionappears 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 hasspecial 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.
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32. In the present case, Thakur Dass (PW6) did not state
anything about the conduct and his testimony does not prove
the relationship.
.
33. 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
of
that Shardi was his sister. Her marriage was solemnised in the
year 1950. She died four years after the marriage. He stated in
rt
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-
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2/A), and the testimony of this witness will make the plaintiff’s
case suspect.
34. 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
of
Pandit, and sweets were distributed. She has not explained how
the marriage was solemnised. As per her testimony, the
rt
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.
35. 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
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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
of
be admitted. It was observed at page 776:
As to the first question, of course, as I have already
rt
indicated, there being no English common law of evidence
antecedent to the Evidence Act, the only manner in whichthese 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 begiven 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
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learned Chief Justice and my brothers Straight and Tyrrell
have also arrived.
36. 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:
10. It is well settled that the Indian Evidence Act prohibits
the employment of any kind of evidence not specificallyof
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
rt
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), arevery 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 tocontain the whole law, it is imperative. It is not open to
any judge to exercise a dispensing power and admitevidence not admissible by the statute because to him it
appears that the irregular evidence would throw lightupon 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::: Downloaded on – 06/08/2026 20:41:27 :::CIS
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2026:HHC:32828own discretion would be to destroy the whole object of
the general rule.”
37. 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.
of
38. Thus, the approach of the learned Appellate Court was
contrary to the enacted law, which vitiated the judgment passed
rt
by the learned Appellate Court.
39. 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
40. 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.
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41. The present appeal stands disposed of in the aforesaid
terms, so also the pending application(s), if any.
42. The record of the learned Courts below be returned
.
along with a copy of this judgment.
(Rakesh Kainthla)
Judge
06th August, 2026
(ravinder)
of
rt
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