Saturday 21 March 2015

Whether presumption of marriage can be rebutted by oral evidence?


 The dispute is whether Muktabai Shankar Sutar was the wedded wife of Shankar Kondi Sutar or she was the kept mistress of deceased Shankar Kondi Sutar. According to the plaintiff, she was kept mistress of Shankar Kondi Sutar and according to the defendants she was wedded second wife of deceased Shankar Kondi Sutar after the death of first wife Akkatai. When Shankar Kondi Sutar resided at Bambawade she was residing with Shankar Kondi Sutar from about 1954-55 till his death on 3.6.1977. Her name was entered in the Ration Card and Voters List as wife of Shankar Kondi Sutar. Shankar Kondi Sutar had purchased open plot at Bambawade and built two houses bearing Grampanchayat House No. 25 and 26. House no. 25 is the house in dispute. In the house 26 plaintiff No. 1 resided separately from his father. Now the first question to be decided is whether the defendant no. 1 is the wedded second wife of deceased Shankar Kondi Sutar or she is the kept mistress of Shankar Kondi Sutar. There is no oral evidence on this point except that of plaintiff no. 1. Plaintiff no. 1 as P.W. No. 1 denies that the defendant no. 1 is legally wedded wife. Plaintiff no. 1 is interested in denying her status as legally wedded wife. The voters list of Bambawade, the Ration Card of Shankar Kondi Sutar at Bambawade are pressed as the most reliable evidence as in both of them she has been described as the wife of Shankar Kondi Sutar. After the death of Shakar Kondi Sutar the name of defendant no. 1 is entered in the G.P . of Bambawade as owner of the suit house being wife of Shankar Kondi Sutar. The voters' list and Ration Card were prepared during the life time of Shankar Kondi Sutar and to his knowledge the defendant no. 1 has been shown as wife and the entry in the GP Bambawade of the Suit House as house of defendant no. 1. The above public documents fully support the case of defendant no. 1 that she is the wedded wife of Shankar Kondi Sutar. It is to be noted that the electoral roll is a public document and is prepared by a public servant in discharge of his public duty and the same is relevant under section 35 of the Evidence Act.
22. The Apex Court in the matter of Badri Prasad v. Dy.Director of consolidation and Others (Supra) held that for a man and woman living together for 50 years held a strong presumption of marriage between them. It is not necessary for them to bring forward witnesses to ceremonies of their marriage. The Apex Court in the matter of Sumitra Devi v. Bhikan Choudhary (Supra) held that it is equally true that there can be marriage acceptable in law according to customs which do not insist on performance of such rites. Similar view is taken by the Apex Court in the matter of S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (Supra).
                                                    
                 
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
    CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.364 OF 1992
WITH
CROSS­OBJECTIONS (ST). NO.18331 OF 1992

Bhikaji Bandu Sutar & Lohar Vs. Rangarao Shankar Sutar & Ors.
Dated;8-12-2014
CORAM : K.K.TATED, J.
Citation: 2015(1)ABR768, 2015(2)MhLj410

Heard the learned counsel for the parties.
2 1 For the sake of convenience,   the nomenclature of the parties 
as   is   stated   in   the   suit   will   be   referred   to   hereinafter   as   the 
appellant / original defendant no.2 and respondent nos.1, 2, 3 and 
4 / original plaintiff nos.1, 2, 3, 4 and respondent no.5 / original 
defendant no.1 and respondent no.6 / original defendant no.3.
3
Being aggrieved by the judgment and decree dated 17.3.1992 
passed   by  IVth  Additional   District   Judge,   Kolhapur  in   Regular   Civil 

Appeal   No.230   of   1986   and   cross   objections,   the   defendant   no.2 
plaintiff filed Cross­Objection.

preferred   the   present   Second   Appeal.     Respondent   No.1   original 
  A few facts of the matter are as under:
4 The original plaintiffs filed Regular Civil Suit No.55 of 1977 in 
the court of Civil Judge, Junior Division at Malkapur for declaration 
that defendant no.1, Muktabai Shankar Sutar was not legally wedded 
wife of Shankar Kondi Sutar.   The property was sold by defendant 
no.1   in   favour   of   defendant   no.2.     The   sale   deed   executed   by 
defendant   no.1   in   favour   of   defendant   no.2   in   respect   of   the   suit 
property bearing G.P
. No.25 is bad in law and same be set aside.  In 
the alternative, it is to be declared that the suit property bearing G.P

No.25 was HUF property and therefore defendant no.1 has no right 
to sell the entire property in favour of defendant no.2.  The plaintiff 
pleaded   that  plaintiff   no.1   is   the   son   of   Shankar   Kondi   Sutar   and 
plaintiff nos.2, 3 and 4 are daughters.  Their contention was that the 
defendant no.1 was kept mistress of their father Shankar Kondi Sutar. 
On the  basis of  the  pleadings,  the  trial  court by its judgment  and 
decree   dt.20.3.1986   held   that   plaintiffs   are   entitled   to   recover 
possession of the house property in suit to the extent of their 3/5 th 
share by metes and bounds.  The partition of the suit house property 
be effected by appointment of Court Commissioner.   The trial court 
further held that mesne profit will be determined separately in view 
of Order 20 Rule 12 of the Code of Civil Procedure.
5
Being aggrieved by the said judgment and decree passed by the 
trial   court,   defendant   nos.2   and   3   preferred   Regular   Civil   Appeal 

No.230   of   1986   in   the   court   of   IVth  Additional   District   Judge, 
Kolhapur at Kolhapur.   In that appeal, the plaintiffs preferred cross­
examination   under   Rule   22   of   Order   XLI   of   the   Code   of   Civil 
Procedure.  They raised following grounds in their cross­objection:
“a)
The   lower   court   erred   in   not   granting   the 
whole relief as prayed in the suit.
b)
The  lower   courts  refusal  to   grant   whole   relief  is 
illegal and illogical.
The reasoning for rejecting relief to the extent of 
share in the suit property is illegal and unwarranted.
c)  
d) The   respondents   are   entitled   to   whole   relief   but   this 
aspect has not been properly followed and appreciated.
6
e)  
The   lower   court   has   not   followed   the   relevant 
provisions of Hindu Law and Hindu Succession Act.”
The   appellate   court   by   judgment   and   decree   dt.17.3.1992 
dismissed the appeal preferred by defendant nos.2 and 3 and allowed 
the cross­objections.   The appellate court directed defendant nos.2 
and 3 to deliver possession of the suit property to the plaintiff.  
7
Being   aggrieved   by   the   judgment   and   decree   passed   by   the 
lower appellate court in  Regular Civil Appeal No.230 of 1986, the 
original defendant no.2 preferred the present Second Appeal.  
8
The Second Appeal is admitted by this court on 4.8.1992 on 
following substantial questions of law:
“1)

Whether   the   presumption   regarding   the   marital 

status   of   Muktabai   (Original   Defendant   No.1   since 
deceased)   on   the   basis   of   her   long   cohabitation   with 
Shankar   and   the   documentary   evidence   regarding   the 
voters' list and property card could be said to be rebutted 
by the oral evidence of the plaintiffs.
2)
Whether the lower Appellate court erred in law in 
relying purely on oral evidence while disturbing the finding 
of the marital status of Muktabai since deceased?

3)
Whether   the   lower   Appellate   court   committed   a 
grave error of law in recording a finding on the point which 
was not even raised in the cross­objections and which was 
not seriously contested before the Court?”
9
The learned counsel for defendant nos.2 submits that this court 
has   framed   three   substantial   questions   of   law   at   the   time   of 
admission of the Second Appeal.  He submits that only one question 
of   law   involved   in   the   present   Second   Appeal   is   “whether   the 
defendant no.1 was wife of Shankar Kondi Sutar and whether she 
had right to sell the suit property?”  By consent of both the parties, 
the above  mentioned question  is treated as substantial  question of 
law in the present Second Appeal.
10
The learned counsel for the Appellant / defendant no.2 submits 
that   the   appellate   court   erred   in   coming   to   the   conclusion   that 
defendant no.1 was not the wife of deceased Shankar Kondi Sutar 
but she was his kept mistress.   He submits that the appellate court 
erred in coming to the conclusion that the defendant no.1 failed to 
produce   on   record   any   document   to   show   that   she   married   with 
deceased Shankar Kondi Sutar.  He submits that the lower appellate 
court erred in coming to the conclusion that defendant no.1 failed to 
state   the   specific   date,   specific   time,   place   and   the   presence   of 

persons before whom the marriage of defendant no.1 took place with 
deceased Shankar Kondi Sutar.   He submits that the appellate court 
erred   in   coming   to   the   conclusion   that   if   the   marriage   between 
defendant no.1 and deceased Shankar Kondi Sutar had been legally 
solemnised by performing all the necessary ceremonies for it in any 
form, then the defendant would have certainly adduced evidence of 
some of the relatives, who were present at the alleged marriage to 
prove the same.   He submits that even the appellate court erred in 
coming to the conclusion that merely living of the   defendant no.1 

with deceased Shankar Kondi Sutar from the year 1954­55 till the 
death in 1977 and looking after the household duties do not give the 
status of legally wedded wife to the defendant no.1, unless and until 
legal marriage is solemnised between defendant no.1 and deceased 
Shankar Kondi Sutar.   He submits that the appellate court erred in 
coming to the conclusion that, had   the defendant no.1 lived with 
deceased   Shankar   Kondi   Sutar   for   his   whole   life   from   1954­55 
without solemnising the marriage with him, then this living will give 
her only the status of mistress of deceased Shankar Sutar and not the 
status of legally wedded wife of deceased Shankar Sutar.
11
The learned counsel for the defendant no.2 submits that the 
Appellate Court failed to consider Exh.56 i.e. Ration Card of deceased 
Shankar Kondi Sutar.  He submits that the said Ration Card bearing 
No.L­667178 was issued by the Tahsildar Shahuwadi on 17.12.1976 
in which only two names are shown (1) Shankar Kondi Sutar, head of 
family and defendant no.1 Muktabai Shankar wife.  He submits that 
the said Ration Card was issued by the authority at the instance of 
the deceased Shankar Kondi Sutar.  In the ration card defendant no.1 
is described as wife of deceased Shankar Kondi Sutar.   He further 

submits that even the voters' list shows the name of defendant no.1 
as wife of deceased Shankar Kondi Sutar. He submits that these two 
relevant documents  were  not  properly  considered  by the  appellate 
court.   He submits that the appellate court erred in coming to the 
conclusion that these two documents do not support the case of the 
defendant no.1 that she was the wedded wife of deceased Shankar 
Kondi   Sutar.     He   further   submits   that   a   woman   and   man   living 
together  as wife  and husband for  a very long time  gives rise to a 
presumption   that   they   are   wedded   wife   and   husband   and   a   very 
heavy burden lies on the other who seeks to rebut the presumption. 
In support of this contention the learned counsel for the defendant 
no.2   relies   on   the   judgment   in   the   matter   of  Badri   Prasad   v.  
Dy.Director of consolidation and Others. 1  In this case, The Apex Court 
in a short order declared the law thus:
“For   around   50   years,   a   man   and   a   woman,   as   the 
facts in this case unfold, lived as husband and wife. An 
adventurist   challenge   to   the   factum   of   marriage 
between the two, by the petitioner in this special leave 
petition,   has   been   negatived   by   the   High   Court.  
strong presumption arises in favour of wed­lock where 
the   partners   have   lived   together   for   a   long   spell   as 
husband   and   wife.   Although   the   presumption   is 
rebuttable, a heavy burden lies on him who seeks to 
deprive the relationship of legal origin. Law leans in 
favour of legitimacy and frowns upon bastardy. In this 
view, the contention of Shri Garg, for the petitioner, 
that long after the alleged marriage, evidence has not 
1 1978 (3) SCC 527
been   produced   to   sustain   its   ceremonial   process   by 
examining the priest or other witnesses, deserves no 
consideration. If man and woman who live as husband 
and   wife   in   society   are   compelled   to   prove,   half   a 
century later, by eye­witness evidence that they were 
validly   married,   few   will   succeed.   The   contention 
deserves   to   be   negatived   and   we   do   so   without 
The learned counsel for the defendant no.2 relies on the Apex 
12 
hesitation. The special leave petitions are dismissed.”
Court judgment in the matter of Sumitra Devi v. Bhikan Choudhary 2. 
In this case, the  Apex Court laid down  the  law in  paragraph 3 of 
report thus:­
“3.
We   are   impressed   by   the   fact   that   the 
respondent   had   not   seriously   disputed   the   fact   of 
marriage and had taken the stand that such marriage 
was void being vitiated by fraud and suppression  of 
material facts as also for non­performance of religious 
rites.   The   Additional   Sessions   Judge   and   the   High 
Court   have   adopted   a   technical   approach   while 
considering   the   question   of   marriage.   There   is   no 
doubt that in order that there may be a valid marriage 
according to Hindu Law, certain religious rites have to 
be   performed.   Invoking   the   fire   and   performing 
Saptapadi   around   the   sacred   fire   have   been 
considered   by   this   Court   to   be   two   of   the   basic 
requirements for a traditional marriage. It is equally 
true that there can be  a marriage  acceptable  in  law 
according   to   customs   which   do   not   insist   on 
performance   of   such   rites   as   referred   to   above   and 
marriages  of   this type  give  rise   to legal  relationship 
which law accepts. The Additional Sessions Judge as 
also the  learned single Judge  of the  High Court did 
not refer to the fact that for about a decade the parties 
2 1985 (1) SCC 637

had   lived   together.   Public   records   including   voters' 
lists   described   them   as   husband   and   wife   and 
competent witnesses of the village of the wife as also 
the   husband  had supported  the  factum  of   marriage. 
Witnesses   have   also   spoken   about   the   reputation   of 
the appellant being known in the locality as the wife 
of the respondent. These facts should not have been 
totally   overlooked   while   considering   the   case   of 
marriage. It is possible that on account of the lawyer's 
mistake the appellant's witnesses have not referred to 
the religious rites which might have been performed 
at the time of marriage. It is equally possible that the 
learned Magistrate  while recording the  evidence has 
not   specifically   recorded   the   details   and   has   only 
indicated   that   witnesses   have   spoken   to   the   fact   of 
marriage.   Since   the   form   of   marriage   has   not   been 
found   and   traditional   marriage   according   to   Hindu 
Law requires performance of certain religious rites, we 
consider it proper in the peculiar facts of the case to 
remit the matter to the learned Magistrate for a fresh 
inquiry at which apart from the evidence already on 
record   both   sides   should   be   entitled   to   lead   further 
evidence   particularly   in   support   of   their   respective 
stands relating to the factum of marriage.”
In the present case, Shankar Kondi Sutar and Mutkabai lived 
together as husband and wife for more than two decades.  The name 
of Muktabai was entered   into voter's list as wife of Shankar Kondi 
Sutar   residing   at   the   suit   house   number   25   at   Bambawade. 
Muktabai's name as wife of Shankar Kondi Sutar was entered into 
Ration Card.  This must have been to the knowledge of late Shankar 
Sutar.  After the death of Shankar Sutar in the year 1977, the Gram 
Panchayat   Bambawade   entered   the   name   of   Muktabai   wife   of 
deceased Shankar Kondi Sutar as owner of the house.  These entries 
in the public document did support of the case of the defendant that 
Muktabai is the wedded wife of deceased Shankar Kondi Sutar.   As 
against   this,   there   is   oral   evidence   of   P
.W.No.1,   Rangarao   Shankar 

Sutar (Plaintiff No.1).  His interested oral evidence does not rebut the 
legal   presumption   that   Muktabai   and   Shankar   Kondi   Sutar   being 
wedded wife and husband which arise on account of their living as 
husband and wife for more than  two decades supported by public 
documents   viz.   voters'   list,   ration   card,   Gram   Panchayat   property 
card.
13
The   learned   counsel   for   defendant   no.2   also   relies   on   the 
judgment of the Apex Court in the matter of S.P
.S.Balasubramanyam  
v. Suruttayan alias Andali Padayachi and Others  3.   The Apex Court 
held that if a man and woman live together for long years as husband 
and wife, then a presumption arises in law of legality of marriage 
existing between the two.  Paragraph 4 of that judgment reads thus:
“4.
What has been settled by this Court is that if 
a   man   and   woman   live   together   for   long   years   as 
husband and wife then a presumption arises in law of 
legality of marriage existing between the two. But the 
presumption is rebuttable (see Gokal Chand v. Parvin 
Kumari : AIR 1952 SC 231). It has been found by all 
the Courts including the High Court that Chinathambi 
and Pavayee No. 2 lived together since long. But the 
High Court held that the presumption stood rebutted 
for reasons stated earlier. The question is if any of the 
circumstances   taken   individually   or   together   were 
sufficient to warrant the finding that the presumption 
stood   rebutted.   Taking   each   one   of   them   it   may   be 
stated   that   the   omission   to   mention   the   name   of   a 
woman   who   was   living   as   a   concubine   and   her 
offspring   in   the   will   executed   by   the   father­in­law 
could   not   destroy   the   presumption   which   otherwise 
arose  in  law.  In  the  Hindu society  no  father  would, 
normally,   tolerate   behavior   of   his   son   of   having   a 
concubine, therefore, the mere fact that Manthi while 
executing   the   will   did   not   mention   the   name   of 
3 1994 (1) SCC 460
Pavayee No. 2 or her offspring was of no consequence. 
Similarly the absence of any reference to Pavayee and 
her   children   in   the   compromise   entered   between 
Chinathambi   and   his   brothers   was   totally   irrelevant 
circumstance. The suit was filed for partition by one of 
the  members  of  joint  Hindu  family for  his share  on 
strength   of   will   executed   by   his   father.   Since   his 
children were not given any share by his father they 
could not have been party either in the suit or in the 
compromise   decree.   The   absence   of   their   names 
therefore could not be taken adversely for destroying 
the presumption. As regards evidence of P
.W. 6 or D.W. 
4 their depositions are on record. It does not indicate 
that they stated Chinathambi and Pavayee did not live 
together. Since it was not disputed that Ramaswamy 
was   born   of   Chinathambi   and   Pavayee   who   lived 
together as husband and wife since 1920 each of these 
circumstances   was   irrelevant   and   could   not   have 
resulted in rebutting the presumption. In our opinion 
the High Court was not justified in interfering with the 
findings of fact recorded by the First Appellate Court 
arrived at after appreciating the evidence on record.”
14
On the basis of these submissions, the learned counsel for the 
defendant   no.2   submits   that   the   impugned   judgment   and   decree 
passed   by   lower   appellate   court   dated   17.3.1992   in   Regular   Civil 
Appeal No.230 of 1986 and Cross Objections requires to be set aside.
15
On   the   other   hand   the   learned   counsel   for   the   plaintiffs 
vehemently   opposed   the   present   Second   Appeal.     He   submits   that 
though defendant no.1 filed her written statement no where she has 
stated the date of marriage, the persons who were present at the time 
of marriage and where the marriage took place. He submits that even 
the defendant no.1 failed and neglected to produce any documentary 
evidence about the marriage.  He submits that the appellate court in 
paragraph 11 rightly held that mere staying of defendant no.1 with 

deceased Shankar Kondi Sutar from the year 1954­55 till his death on 
8.6.1977 and looking after the household duties of his house do not 
give her the status of legally wedded wife of Shankar Kondi Sutar 
unless   and   until   legal   marriage   is   solemnised   between   them.     He 
submits that Shankar Kondi Sutar died on 3.6.1977 and immediately 
defendant no.1 sold the property on 16.7.1977 to the defendant no.2. 
This itself shows   the way in which the defendant no.1 disposed of 
the deceased Shankar's property without any authority.   He submits 
that the Apex Court in the matter of Easwari v. Parvathi & Ors.  4 held 
that the bare fact of a man and woman living as husband and wife do 
not normally give them the status of husband and wife.   He mainly 
relies on the paragraph 6, 7, 8 and 9 of that judgment.  
“6. 
The   High   Court   dealt   with   the   matter   at 
length. It is stated by the Appellant herein before the 
Trial Court that Muniammal died ten years ago i.e. in 
1976. It is further stated that on December 15, 1977 
Ponnangatti   married   to   the   first   Defendant,   the 
Appellant   herein   in   the   Devasthanam   of   Sri 
Perianayaki   Saneda   Kanagagiri   Eswarar   at 
Devikapuram.   To   prove   the   factum   of   marriage,   she 
produced a temple receipt before the High Court being 
Ex. B­8 which was produced from the lawful custody 
of the trustee of the temple. Exs. B­9 and B­10 were 
also produced and said to be the accounts for the gifts 
made   at   the   time   of   the   said   marriage.   The   first 
Defendant/Respondent also produced Exs. B­1 and B­
2 which are the voters list of 1978 and 1983 wherein 
it  appears  that  the   first  Defendant   was  described  as 
the   wife   of   Mannangatti   and   Ponnangatti.   The   pass 
books   of   the   bank   accounts   for   the   year   1984   and 
1985 being Exs. B­3 and B­4 and bankers' reply were 
also   produced   to   show   that   the   first   Defendant   was 
described   as   wife   of   the   deceased   Ponnangatti 
Gounder. The High Court duly assessed all documents 
4 2014 (8) JT 432
and held that no reliance can be placed on the Exh. B­
3   to   B­6   as   they   only   represent   the   unilateral 
description   of   the   first   Defendant   as   wife   of 
Ponnangatti   Gounder.   Similarly,   Ex.   B­7   was   a 
mortgage deed executed just prior to the filing of the 
suit where also the unilateral description of the first 
Defendant   as   wife   of   Ponnangatti   Gounder   can   be 
seen. Similarly, Exs. B­9 and B­10 also cannot be relied 
upon because it is not very difficult to prepare these 
documents for the said purpose. Hence the High Court 
did not place reliance on such exhibits.
Accordingly,   the   High   Court   was   left   only 
with the documentary evidence of Ex. B­8 on the one 
hand and Exs. B­1 and B­2 on the other hand. Ex. B­8 
was produced from the lawful custody of trustee of the 
temple and the said trustee while examining, deposed 
before the Court in his cross­examination that he did 
not know about the actual marriage said to have been 
conducted in the temple. In these circumstances, the 
probative   value   of   Ex.   B­8,   as   correctly   appreciated 
and   held   by   the   High   Court,   gets   diluted.   Other 
Exhibits being Exs. B­1 and B­2 were also specifically 
dealt with by the High Court and the High Court after 
assessing   the   document   held   that   different 
descriptions   of   the   name   of   husband   of   the   first 
Respondent are given in the voters list. Therefore, the 
High   Court   did   not   place   any   reliance   on   the   said 
voters list.
8.  
The   High   Court   also   placed   reliance   on 
Bhaurao   Shankar   Lokhande   and   Anr.   v.   State   of  
Maharashtra and Anr. : AIR 1965 SC 1564 and found 
that   mere   going   through   certain   ceremonies   with 
intention of marriage will not make the ceremonies as 
prescribed   by   law   or   approved   by   any   established 
custom. The bare fact of a man and a woman living as 
husband   and   wife   does   not   normally   give   them   the 
status of husband and wife.”
The   learned   counsel   for   the   plaintiffs   also   relies   on   the 

judgment   of   the   Apex   Court   in   the   matter   of  Bhaurao   Shankar  
Lokhande vs. State of Maharashtra  5.  In this authority the Apex court 
observed  that  the  word  solemnised  means,  in  connection  with  the 
marriage, to celebrate the marriage with proper ceremonies and in 
due   form   according   to   Shorter   Oxford   Dictionary.     He   relies   on 
paragraph 5, 6, 7 and 8 of the judgment. 
“5.
The word 'solemnize' means, in connection 
with   a   marriage,   'to   celebrate   the   marriage   with 
proper ceremonies and in due form', according to the 
Shorter   Oxford   Dictionary.   It   follows,   therefore,   that 
unless the marriage is 'celebrated or performed with 
proper ceremonies and due form' it cannot be said to 
be   'solemnized'.   It   is   therefore   essential,   for   the 
purpose of section 17 of the Act, that the marriage to 
which   section   494   I.P   applies   on   account   of   the 
.C.
provisions   of   the   Act,   should   have   been   celebrated 
with proper ceremonies and in due form. Merely going 
through certain ceremonies with the intention that the 
parties  be   taken  to   be  married,   will   not  make   them 
ceremonies   prescribed   by   law   or   approved   by   any 
established custom.
6. We are of opinion that unless the marriage which 
took place between appellant no. 1 and Kamlabai in 
February 1962 was performed in accordance with the 
requirements   of   the   law   applicable   to   a   marriage 
between  the  parties, the  marriage  cannot  be said to 
have   been   'solemnized'   and   therefore   appellant   no.1 
cannot be held to have committed the offence under 
section  494 I.P
.C.
7. We   may   now   determine   what   the   essential 
ceremonies for a  valid marriage  between  the  parties 
are. It is alleged for the respondent that the marriage 
between   appellant   no.1   and   Kamlabai   was   in 
'gandharva' form, as modified by the custom prevailing 
5 1965 DGLS (Soft.) 15

among   the   Maharashtrians.   It   is   noted   in   Mulla's 
Hindu Law, 12th Edition, at p. 605 :  "The Gandharva 
marriage   is   the   voluntary   union   of   a   youth   and   a 
damsel   which   springs   from   desire   and   sensual 
inclination. It has at times been erroneously described 
as an euphemism for concubinage. This view is based 
on   a   total   misconception   of   the  leading  texts  of   the 
Smritis.  It   may   be  noted  that  the   essential   marriage 
ceremonies are as much a requisite part of this form of 
marriage as of any other unless it is shown that some 
modification of those ceremonies has been introduced 
by custom in any particular community or caste."
8. At p. 615 is stated :  
"(1)   There   are   two   ceremonies   essential   to   the 
validity of a marriage, whether the marriage be 
in the Brahma form or the Asura form, namely ­ 
(1)   invocation   before   the   sacred   fire,   and     (2) 
saptapadi, that is, the taking of seven steps by the 
bridegroom   and   the   bride   jointly   before   the 
scared fire.  
(2)   A   marriage   may   be   completed   by   the 
performance   of   ceremonies   other   than   those 
referred to in sub­section (1), where it is allowed 
by the custom of the caste to which the parties 
belong." 
The learned counsel for the plaintiffs in support of the Cross 
Objection   submits   that   the   lower   Appellate   Court   committed 
substantial error of law in holding that the plaintiffs are not entitled 
to the right of pre­emption under section 22 of the Hindu Succession 
Act,   1956   in   respect   of   the   suit   property.     He   submits   that   bare 
reading of section 22 states that class I heir can claim pre­emption 
right  in   respect   of  HUF   property   at   the   time   of   partition.     Hence, 
judgment and decree passed by the lower appellate court rejecting 
plaintiffs' prayer for pre­emption right under section 22 of the Hindu 

Succession Act is required to be set aside and hold that the plaintiff 
18
has a preferential right to acquire the suit property.
On the basis of these submissions, the learned counsel for the 
plaintiffs   submits   that   the   view   taken   by   the   Appellate   Court   is 
according   to   law.     He   further   submits   that   the   appellant   has   not 
shown any substantial question of law involved in the present Second 
I have heard both the sides at length.  I have gone through the 
19
Appeal.  Hence, Second Appeal deserves to be dismissed with costs.
copy   of   plaint,   written   statement,   deposition   of   parties   and 
no longer in dispute.
Plaintiff no.1 is a son and the Plaintiff nos.2, 3 and 4 are the 
20
documentary evidence produced on record.   The following facts are 
daughters   of   the   deceased   Shankar   Kondi   Sutar.     The   deceased 
Shankar Kondi Sutar with his wife Akkatai resided at Boriwade.  The 
plaintiff no.1, son and the daughters plaintiff nos.2 and 3 were born 
to Akkatai while she along with her husband Shankar Kondi Sutar 
resided at Boriwade.   After all the daughters were married Akkatai 
died and Shankar Kondi Sutar  shifted from Boriwade to Bambawade 
Taluka Shahuwadi Dist. Kolhapur.   Plaintiff no.1 Rangarao Shankar 
Sutar   P
.W.No.1   and   defendant   no.1     Muktabai   Shankar   Sutar   are 
about   the   same   age   58   years.     Defendant   no.1   Muktabai   Shankar 
Sutar was staying with Shankar Kondi Sutar from  about 1954­55 as 
his wife till his death on 3.6.1977.  
21
The   dispute   is   whether   Muktabai   Shankar   Sutar   was   the 
wedded wife of Shankar Kondi Sutar  or she was the kept mistress of 

deceased Shankar Kondi Sutar.   According to the plaintiff, she was 
kept   mistress   of   Shankar   Kondi   Sutar   and   according   to   the 
defendants she was wedded second wife of deceased Shankar Kondi 
Sutar   after   the   death   of   first   wife   Akkatai.     When   Shankar   Kondi 
Sutar resided at Bambawade she was residing with Shankar Kondi 
Sutar from about 1954­55 till his death on 3.6.1977. Her name was 
entered in the Ration Card and Voters List as wife of Shankar Kondi 
Sutar.  Shankar Kondi Sutar had purchased open plot at Bambawade 
and built two houses bearing Grampanchayat House No.25 and 26. 
House no.25 is the house in dispute.  In the house 26 plaintiff No.1 
resided   separately   from   his   father.     Now   the   first   question   to   be 
decided is whether the defendant no.1 is the wedded second wife of 
deceased Shankar Kondi Sutar or she is the kept mistress of Shankar 
Kondi Sutar.   There is no oral evidence on this point except that of 
plaintiff no.1.   Plaintiff no.1 as P
.W. No.1 denies that the defendant 
no.1 is legally wedded wife.   Plaintiff no.1 is interested in denying 
her status as legally wedded wife. The voters list of Bambawade, the 
Ration Card of Shankar Kondi Sutar at Bambawade are pressed as the 
most reliable evidence as in both of them she has been described as 
the wife of Shankar Kondi Sutar.   After the death of Shakar Kondi 
Sutar   the   name   of   defendant   no.1   is   entered   in   the   G.P   of 
Bambawade as owner of the suit house being wife of Shankar Kondi 
Sutar.  The voters' list and Ration Card were prepared during the life 
time   of   Shankar   Kondi   Sutar   and   to   his   knowledge   the   defendant 
no.1 has been shown as wife and the entry in the GP Bambawade of 
the   Suit   House     as   house   of   defendant   no.1.     The   above   public 
documents fully support the case of defendant no.1 that she is the 
wedded   wife   of   Shankar   Kondi   Sutar.     It   is   to   be   noted   that   the 
electrol roll is a public document and is prepared by a public servant 

in discharge of his public duty and the same is relevant under section 
22
35 of the Evidence Act.    
The Apex Court in the matter of Badri Prasad v. Dy.Director of  
consolidation and Others    (Supra) held that for a man and woman 
living together for 50 years held a strong presumption of marriage 
between them. It is not necessary for them to bring forward witnesses 
to ceremonies of their marriage.   The Apex Court in the matter of 
Sumitra Devi v. Bhikan Choudhary (Supra) held that it is equally true 
that there can be marriage acceptable in law according to customs 
which do not insist on  performance of such rites.   Similar view is 
taken by the Apex Court in the matter of   S.P
.S.Balasubramanyam v.  
Suruttayan alias Andali Padayachi and Others (Supra).
The authority relied by the advocate for the respondents in the 
23
matter of  Easwari v. Parvathi & Ors. (Supra) is not applicable in the 
facts and circumstances of the present case.   In that case, the Apex 
Court held that the bare fact of man and woman living as husband 
and wife does not normally give them the status of husband and wife. 
In   the   case   in   hand,   the   defendant   placed   on   record   Ration   Card 
which shows the name of deceased Shankar Kondi Sutar as husband 
and defendant no.1's name as wife.  In similar way the voter list also 
shows the name of defendant no.1 as wife of deceased Shankar Kondi 
Sutar.  Therefore the authority in the matter of Easwari v. Parvathi &  
Ors.  is not applicable in the present case.   In similar way the Apex 
Court   in   the   matter   of  Bhaurao   Shankar   Lokhande   vs.   State   of  
Maharashtra (Supra) is also not applicable in the case in hand.  The 
defendants relied on ration card and voters list where the name of 
defendant no.1 is shown as wife of deceased.  

The   trial   court   as   well   as   Appellate   court   passed   order   for 
24
determining mesne profit under Order 20 Rule 12 of the Code of Civil 
Procedure.  The plaintiffs are entitled to the same.
25
The plaintiffs filed cross objection in the present Second Appeal 
claiming pre­emption right under section 22 of the Hindu Succession 
ig
Succession Act, 1956 reads thus:
Act   in   respect   of   the   suit   property.     Section   22   of   the   Hindu 
“22.  Preferential   right  to  acquire   property  in  certain 
cases.— 
(1)
Where, after the commencement of this Act, 
an   interest   in   any   immovable   property   of   an 
intestate, or in any business carried on by him or 
her,  whether  solely or  in  conjunction  with others, 
devolves upon two or more heirs specified in class I 
of the Schedule, and any one of such heirs proposes 
to   transfer   his   or   her   interest   in   the   property   or 
business,   the   other   heirs   shall   have   a   preferential 
right   to   acquire   the   interest   proposed   to   be 
transferred. 
(2)
The consideration for which any interest in 
the   property   of   the   deceased   may   be   transferred 
under   this   section   shall,   in   the   absence   of   any 
agreement  between  the   parties, be  determined  by 
the   court   on   application   being   made   to   it   in   this 
behalf, and if any person proposing to acquire the 
interest   is   not   willing   to   acquire   it   for   the 
consideration so determined, such person shall be 
liable   to   pay   all   costs   of   or   incident   to   the 
application.  
(3)
If there are two or more heirs specified in 
class   I   of   the   Schedule   proposing   to   acquire   any 
interest under this section, that heir who offers the 

highest   consideration   for   the   transfer   shall   be 
preferred.  
Explanation.—In   this   section,   “court”   means   the 
court   within   the   limits   of   whose   jurisdiction   the 
immovable   property   is   situate   or   the   business   is 
carried on, and includes any other court which the 
State   Government   may,   by   notification   in   the 
Official Gazette, specify in this behalf.” 
Provision of the section declares that where an interest in the 
immovable property of an intestate devolve upon two or more heirs 

specified in class I of the schedule then it is between class 1 heirs, 
26
interalia they have right of pre­emption.  
In the present case, it is the case of the plaintiff that the suit 
property   was   sold   by   defendant   no.1   in   favour   of   defendant   no.2 
which is not class I heir.  Therefore the appellate court rightly decided 
point no.7 holding that plaintiffs are not entitled to the right under 
section 22 of the Hindu Succession Act.     I do not find any error in 
the said finding.
27
Hence, the question of law framed hereinabove is answered in 
favour of the appellant holding that defendant no.1 is the wedded 
wife of deceased Shankar Kondi Sutar.   Therefore, I agree with the 
finding of trial court that the defendant no.1 Muktabai Shankar Sutar 
is legally wedded second wife of the deceased Shankar Kondi Sutar. 
Hence, the following order:
(a)
Judgment   and   decree   passed   by   IV th  Additional 
District Judge, Kolhapur in Regular Civil Appeal No.230 of 
1986 and counter claim is set aside.
Judgment   and   decree   passed   by   Civil   Judge, 
(b)

Junior   Division,   Malkapur   dt.20.03.1986   in   Regular   Civil 
Suit No.55 of 1977 is restored.  
(c)
Cross­objections St.No.18331 of 1992 is rejected.

No order as to costs.
(K.K.TATED, J.)

                                                          
FARAD CONTINUATION SHEET
IN THE HIGH COURT OF  JUDICATURE AT BOMBAY.
CIVIL APPELLATE SIDE JURISDICTION.
SECOND APPEAL NO.364 OF 1992
sa364­92­speaking to
minutes.doc
Office   Notes,   Office 
Memoranda

of 
Coram,   Appearances, 
court’s   orders   or 
directions

and 
Registrar’s orders
Court’s or Judge’s orders
Mr. V
. S. Gokhale for the Appellant.
Mr.   Rahul   P   Walwekar   for   Respondent 
.
Nos.1,2,3(A) to 3(D), 3(F) and 4(A) to 4(D).
ig
CORAM : K. K. TATED, J.
DATE     : DECEMBER 24, 2014
P
.C.:
1. The  office  has placed  the   matter  on   board 
for  speaking   to  the   minutes  of   judgment  dated 
08/12/2014.
a)
In the title of the said judgment, the  
name Bhilaji be read Bhikaji.
b)
In   the   first   line   of   paragraph   4   on  
page  No.2, the figure 1997 be read 1977.
c)
In the second line of paragraph 7 on  
page  No.3, the figure 1996 be read 1986.
d)
In   third   line   of   clause   (a)   on   page  
No.21, the figure 1956 be read 1986.
e)
In   third   line   of   clause   (b)   on   page  
No.21, the figure 1997 be read 1977.
2.
Judgment   dated   08/12/2014   be   read 
accordingly.  Rest of the order shall remain as it 
is.             




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