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. A
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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