In RSA No.5103 of 2010 (O&M)- PUNJ HC- Testimony of Plaintiff’s sister, who is also her attorney, cannot be brushed aside: P&H HC Justice Meenakshi I. Mehta [02-05-2022]

Read Order: Jagir Singh and Another v. Rajwinder Kaur

Monika Rahar 

Chandigarh, May 04, 2022: While dealing with an appeal assailing decree passed in recovery suit filed by wife of deceased army personnel claiming her share of money given to the family of such deceased by Indian Army on account of his death, the Punjab and Haryana High Court has held that although the cross- examination of the wife could not be completed, yet the testimony given by her sister (also her attorney) on the factum of the plaintiff’s (wife) marriage with the deceased (as dispute by family of deceased) could not be painted with black colour or brushed aside. 

Thus, while holding that the family members of the deceased failed to examine any witness to support their case in respect of the factum of the plaintiff’s marriage with any person other than the deceased, the Bench of Justice Meenakshi I. Mehta upheld the concurrent finding recorded by the Courts below. 

In the appeal by the family members of a deceased army personnel against the concurrent decision of the lower courts decreeing a recovery suit in favour of plaintiff-wife who claimed money (benefits accruing on her husband’s death) from the said family, the Punjab and Haryana High Court has upheld the lower Court decision.

In the instant case, a Civil Suit was filed by the respondent-plaintiff (‘the plaintiff’) against the appellants-defendants (‘the defendants’) for seeking the recovery of Rs. 4,26,445/-. This suit was decreed. Aggrieved, the defendants filed an appeal against this decree and judgment and the same was dismissed. 

Thus, the defendants (now appellants) filed the instant appeal before the High Court. 

The plaintiff filed the above-said suit while averring that on January 05, 1997, her marriage was solemnized with the son of the defendants named Santokh Singh who was an Army personnel. On November 27, 1997, her husband expired due to a cardiac arrest.

The plaintiff further averred that the defendants turned her out of their house while retaining her dowry articles and that they submitted a false affidavit before the Army Authorities deposing therein that their above-named son was unmarried and thereby, they managed to get the amount of Rs.4,26,445/- on account of all the post-death benefits qua her husband whereas she, being the wife of the said deceased, was entitled for the same.

As per the respondent-plaintiff, 3/4th amount of the pension was released in her favour after hse made representation to the Army Authorities. As a result of this representation, a criminal case was also registered against the defendants.

In their written statement, the defendants contested the claim of the plaintiff, inter-alia, on the grounds that she was, in fact, married to their younger son named Jaswant Singh but due to her ill-temper, the said marriage was dissolved and then, she left their house. 

The plaintiff filed the replication and thereafter, the trial Court put the parties to the trial by framing the issues. After appreciating and evaluating the evidence as led by both the parties on record to prove their respective contentions and hearing their counsel, the trial Court decreed the suit for the recovery of the above-said amount along-with interest @ 8% per annum. 

The appeal filed by the defendants to challenge the above-said judgment and decree, was also  dismissed by the lower Appellate Court. 

The counsel for the defendants-appellants contended that the plaintiff stepped into the witness-box and tendered her affidavit and was also partly cross-examined but thereafter, she did not appear in the Court for the conclusion of her cross-examination and rather, she examined Baljinder Kaur, her sister (also stated to be her Attorney), therefore, her testimony could not be read in her evidence and the depositions, as made by her sister also could not be given any evidentiary weightage because she was not well versed. 

Thus, the Counsel argued that despite these circumstances, the trial Court wrongly decreed the suit and the appeal filed by the defendants, was also erroneously dismissed. 

Per contra, the counsel for the plaintiff argued that the plaintiff was the legally wedded wife of the said deceased and was, thus, entitled to get all the monetary benefits becoming due on account of his death but the defendants received the same by furnishing a false affidavit before the Army Authorities deposing therein that their deceased son was a bachelor and later-on, a criminal case also got registered against them in this regard.

The Court observed at the very outset that the entire controversy between the parties revolved around the factum of the marriage of the plaintiff with the deceased son of the defendants. The Court noted that though, the plaintiff appeared in the witness-box as a prosecution witness and tendered her affidavit and was partly cross-examined but thereafter, she examined her Attorney who categorically stated during her cross-examination that the plaintiff was residing in England at that time.

Further, the Court expounded that even if the above-said testimony of the plaintiff was not taken into consideration, even then the fact remained that her afore-said Attorney was none other than her sister who was supposed to be well aware of the factum of her (plaintiff’s) marriage with the above-named deceased son of the defendants and therefore, in Court’s opinion, her testimony qua the said fact could not be painted with black colour or brushed aside. 

To add to it, on the plea of the defendants that the plaintiff was married to their younger son, the Court opined that they (defendants) did not examine their afore-named son as their witness despite the facts that his testimony qua the said fact would have clinched the entire dispute between the parties and the same could be easily available to them. 

Thus, in view of the Court, they (defendants) withheld the best possible evidence from being produced on the file for the reasons best known to them as they did not advance any cogent and plausible explanation for the said omission on their part. 

As a sequel to the fore-going discussion, the Court held that the impugned judgments and decrees passed by both the Courts below did not suffer from any illegality, infirmity, irregularity or perversity so as to call for any interference by the High Court. Resultantly, the present appeal, being sans any merit, was dismissed.