Second Appeal No.505 of 1989

6th July, 2007

Petitioner Counsel: Shri. V. C. SOLSHE
Respondent Counsel: Shri. S. V. NATU,Smt. S. G. CHINCHOLKAR

Cases Cited:
Smt. Baby Vs. Jayant Mahadeo Jagtap [Para 15]
Smt. Nirmala Vs. Rukminibai, AIR 1994 Karnataka 247 [Para 16]
Ningu Vithu Bamane Vs. Sadashiv Ningu Bamane, 1986 Mh.L.J. 186 [Para 17]
Subhash Popatlal Shah Vs. Smt. Lata Subhash Shah, AIR 1994 BOMBAY 43 [Para 17]
M. Shanmugha Udayar Vs. Sivanandan, AIR 1994 MADRAS 123 [Para 17]
S. P. S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi, AIR 1992 S.C. 756 [Para 17]
Dolgobinda Paricha Vs. Nirmal charan Misra, AIR 1959 S.C. 914 [Para 19]

JUDGMENT

JUDGMENT :- This second appeal arises out of concurrent findings and judgments of the trial Court and the first appellate Court. The first appellate Court confirmed decree rendered in favour of deceased respondent - plaintiff declaring him as owner of the suit property and for injunction simpliciter.

2. The following genealogy table is admitted and would clarify relationship between the parties.

Sambhaji (deceased plaintiff)
		|
	|		|
Rambhau (son)			Ganpati (son)
			|
			Chandrabhagabai (Defendant/appellant claims to be wife)

3. There is no dispute about the fact that the suit properties were allotted to deceased Ganpati during family partition, which was effected by deceased plaintiff Sambhaji somewhere in 1963-64. Thereafter, Ganpati and Rambhau were residing separately. Ganpati was separately enjoying the suit properties till his death. He died on 13-8-1976. He had married but his first wife by name Rakhmabai died issueless much before he got separated due to the partition.

4. Deceased respondent (plaintiff) filed suit for declaration of ownership and perpetual injunction restraining the defendant - appellant from causing obstruction in his lawful possession in respect of the suit properties. His case before the trial Court was that Ganpati had developed illicit relationship with the defendant (appellant) and that she had started to reside with him. She was previously married to one Tukaram s/o. Vithoba Bidbag. She has begotten 3/4 sons but their paternity could not be ascertained. They are not the sons of Ganpati. She submitted an application dated 14-9-1973 alleging that Ganpati was her husband and she has begotten four sons out of the wedlock. She sought mutation of her name in respect of the suit properties. Consequently, the deceased respondent (plaintiff) filed suit for declaration of ownership and injunction on the basis of his being successor to the suit properties after death of Ganpati.

5. The defendant (appellant) resisted the suit mainly on the ground that she is legally wedded wife of deceased Ganpati and their marriage was performed in or about 1963-64. She denied that Ganpati had developed illicit relations with her. She contended that she used to reside with Ganpati as his legally wedded wife until his death and has begotten four sons out of the wedlock. She denied that she was earlier married to Tukaram s/o. Vithoba Bidbag. She contended that after death of Ganpati, she came into possession of the suit properties as the successor alongwith her sons. She asserted that the deceased plaintiff had never been in possession of the suit properties till the date of the suit and yet a false claim was set up by him. Hence, she sought dismissal of the suit.

6. The parties went to trial over certain issues framed below Exh.41. The main issue was as to whether the deceased plaintiff had proved allegation regarding illicit relations between the defendant and deceased Ganpati and whether she was his mistress. Another issue was whether she proved her status as legally wedded wife of deceased Ganpati. The trial Court held that she was mistress of deceased Ganpati and could not claim herself as his legally wedded wife. The suit was, therefore, decreed. The first appellate Court confirmed such findings.

7. The first appellate Court, however, reached finding that the defendant (appellant) was not proved to be wife of one Tukaram s/o. Vithoba Bidbag and was not previously married to him. Both the Courts held that evidence regarding marriage between the appellant and deceased Ganpati was discrepant and that there was no reliable proof regarding performance of necessary ceremonies like "Homa" and "Saptapadi".

8. Mr. Solshe, learned Advocate appearing for the defendant (appellant) would submit that proof regarding performance of "Saptapadi" was not essential to establish valid marriage. He would submit that the first appellate Court committed patent error while holding that the marriage between Ganpati and the defendant was not performed. He pointed out that the trial Court reached conclusion that the marriage was performed but ceremonies required for a valid marriage were not proved to have been performed. He would submit that the burden of proof was wrongly placed on the appellant though it was required to be proved by the plaintiff that Ganpati had kept the defendant as his mistress. He would submit that the entries in the voters' lists are not duly considered by the first appellate Court. He would further submit that long association between Ganpati and the appellant and their residing together would give rise to presumption about their being husband and wife. He would submit that both the Courts have committed serious error by giving undue importance to non-performance of ceremonies like "Saptapadi". According to Mr. Solshe, performance of ceremonies like "Saptapadi" and "Ashtika" or "Homa" cannot be regarded as the essential requirements of a valid marriage. Hence, he urged to set aside the impugned Judgment. Per contra, learned Advocate Mr. Natu supported the impugned Judgment. He contended that when the defendant had adduced evidence regarding performance of marriage, then her failure to prove the essential ceremonies would show that she is not legally wedded wife of Ganpati. He would submit that once she gave evidence regarding the performance of the marriage, she cannot raise contention that presumption is available in her favour due to cohabitation for a long period. He would submit that the concurrent findings of facts regarding absence of proof in respect of the marriage need not be gone into in the second appeal. He would submit that witnesses of the defendant (appellant) were interested and gave discrepant versions about the performance of marriage. He further submitted that the witnesses of the defendant could not have personal knowledge and due to lack of special knowledge and were not competent to give any opinion about relationship between Ganpati and the defendant. Hence, he urged to dismiss the appeal.

9. The following substantial questions of law arise for determination:

(i) Whether the first appellate Court committed patent error while ignoring availability of presumption of marriage under Section 112 of the Evidence Act when there was long standing association between the appellant and deceased Ganpati and both of them were residing together under one roof like husband and wife ?

(ii) Whether the first appellate Court committed patent error and rendered perverse findings while reaching conclusion that the appellant was mistress of deceased Ganpati and that due to absence of proof regarding ceremonies like "Homa" and "Saptapadi", the marriage was invalid ?

The above points are answered in the affirmative for the reasons discussed hereinafter.

10. Before I proceed to scan the evidence, it may be stated that deceased Ganpati and defendant Chandrabhagabai started residing together somewhere in 1963-64. The first wife of Ganpati had died issueless, much prior to his allowing defendant - Chandrabhagabai to reside with him. The first appellate Court clearly held that defendant Chandrabhagabai's previous marriage with Tukaram is not proved. Needless to say, there is no substance in the allegation that defendant - Chandrabhagabai could not have performed second marriage and that she had deserted her first husband - Tukaram. What the first appellate Court held is that positive evidence on the point of marriage between defendant - Chandrabhagabai and deceased Ganpati had fallen short. So, the first appellate Court held that no presumption under Section 112 or Section 114 of the Evidence Act could be drawn. It appears that the first appellate Court discarded evidence of the defendant on the ground that she did not examine priest or eye-witnesses of the marriage.

11. The significant question is whether insufficiency of proof in respect of marriage debars alternative plea of presumption available under Section 112 and Section 114 of the Evidence Act. Both the Courts have held that because the defendant failed to adduce adequate evidence on the point of marriage, it was not open to consider alternative argument regarding presumption, which could arise due to long standing co-residence of Ganpati and the defendant. In my opinion, the first appellate Court has committed error while rejecting the alternative plea only on such a ground. It cannot be ignored that the defendant has liberty to adopt various alternative pleas. A defendant cannot be compelled to stick to a single plea in his/her defence. It is well settled that legal positions of the plaintiff and the defendant are different. Though the plaintiff cannot be permitted to adopt inconsistent pleas in his pleadings, yet the defendant may be allowed to take such pleas. There appears no legal embargo in respect of such alternative plea based on presumption available under Sections 112 and 114 of the Evidence Act only because evidence was adduced in respect of the fact of marriage.

12. The defendant examined herself and stated that as it was marriage between Ganpati, who was member of higher caste, and herself being member of lower caste it was performed in "Gandharva" form. It appears that deceased Ganpati was member of Maratha caste and defendant Chandrabhagabai belonged to Mahar caste. This being intercaste marriage, perhaps both the Courts were not inclined to accept its performance as a fact.

13. The version of DW-1 - Chandrabhagabai purports to show that the marriage was decided to be performed at Osmanabad inasmuch as it was apprehended that relatives of deceased Ganpati may create trouble. She deposed that during the marriage "Akshadas" were distributed and "Mantras" were chanted. She deposed further that invoking sacred fire and "Saptapadi" were not the ceremonies to be performed as per custom of her caste. They visited temple of 'Maroti' after her saree was tied to 'dhoti' of Ganpati. In this regard, DW-3 Dashrath corroborated the fact that said marriage was performed at Osmanabad. He attended the said marriage. His version reveals that there were some disputes between his uncle and Rama, who was brother of the deceased Ganpati. Nothing of much importance could come out of his cross-examination. It is stated by DW-4 - Kondiba that there is no custom amongst members of his community to perform Saptapadi and invoke holy fire (Homa). His version reveals that the defendant married deceased Ganpati somewhere in 1963-64. Similar is the version of DW-5 Kamlabai. She is aunt of defendant Chandrabhagabai.

14. There is consistent evidence regarding performance of some rites during marriage of Ganpati and defendant Chandrabhagabai. Though an attempt was made to show that such marriage could not be completed without performance of 'Homa' and 'Saptapadi', yet the deceased plaintiff did not adduce evidence in rebuttal to prove that such ceremonies were essential for a valid marriage. The alleged marriage was solemnized after the commencement of the Hindu Marriage Act, 1955. The trial Court as well as the first appellate Court failed to consider legal import of Section 7 of the Hindu Marriage Act. Section 7 reads as follows :

"7. Ceremonies for a Hindu marriage: (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

15. A plain reading of sub-clause (2) of Section 7 would show that the marriage will be deemed as completed and binding when the seventh step is taken, only in cases where the rites and ceremonies include the performance of "Saptapadi". The Act does not, however, prescribe the ceremonies requisite for solemnization of the marriage but leaves it to the parties to choose a form of ceremonial marriage, which is in accordance with any custom or usage applicable to either party. Obviously, when performance of "Homa" and "Saptapadi" was not required to be followed by custom or usage applicable to the Mahar caste, to which defendant - Chandrabhagabai belonged, then it is not necessary to insist performance of "Saptapadi" for a valid marriage. It is well settled that members of Scheduled Caste in Maharashtra, who are converted to Buddhism are Hindus according to Section 2 of the Hindu Marriage Act and the customary form of marriage adopted by them results in valid marriage. In "Smt. Baby Vs. Jayant Mahadeo Jagtap and others" (AIR 1981 BOMBAY 283), it has been held that such customary marriage would be valid. The first appellate Court committed error while observing that due to non-performance of the "Saptapadi", the marriage was invalid.

16. Another significant aspect is that the defendant and her witnesses entered the witness box in the month of December, 1981. The marriage is said to have taken place in 1963-64. After a long gap of almost 18 years, the detailed account of such marriage could not be expected from them. They gave general account regarding performance of the ceremonies. There is an extremely strong presumption in favour of the validity of the marriage and the legitimacy of its offspring, if from the time of the alleged marriage, the parties are recognised by all persons concerned as husband and wife. Likewise, presumption can be drawn that formal requisites of a valid marriage were satisfied. In "Smt. Nirmala and others Vs. Smt. Rukminibai and others" (AIR 1994 Karnataka 247), it is laid down that after a long period of cohabitation, by a man and woman, presumption can be raised that formalities and customs of a valid marriage were performed.

17. In "Ningu Vithu Bamane and others Vs. Sadashiv Ningu Bamane and others" (1986 Mh.L.J. 186), this Court held that Pat marriage is a recognised and approved form of marriage among Hindus. It is observed that a presumption in favour of marriage does not get mitigated merely because there may not be positive evidence of any marriage having taken place. This authority is squarely applicable to the facts of the present case. In "Subhash Popatlal Shah Vs. Smt. Lata Subhash Shah" (AIR 1994 BOMBAY 43), it is held that the saptapadi is not always a must to prove valid marriage between the parties. The marriage between the parties, in absence of saptapadi, cannot be illegal and invalid. In "M. Shanmugha Udayar Vs. Sivanandan and others" (AIR 1994 MADRAS 123), it is held that when a man and woman continuously lived together under the same roof and cohabited for a number of years, presumption that they lived as husband and wife would arise and their child must be regarded as a legitimate one. Mr. Solshe seeks to rely on "S. P. S. Balasubramanyam Vs. Suruttayan @ Andali Padayachi and others" (AIR 1992 SUPREME COURT 756). The Apex Court held that presumption under Section 112 of the Evidence Act would be available when a man and woman were living under same roof and cohabiting for a number of years and they would be presumed to be husband and wife.

18. There is no substance in the argument that when evidence regarding performance of marriage is inadequate, the defendant cannot take aid of presumption available under Section 112 of the Evidence Act. There is no such legal embargo, which disallows the defendant to seek help from such presumptions available under the law. In the present case, the deceased plaintiff categorically pleaded that the defendant used to live with deceased Ganpati. Unless there is allegation and proof to show that she was a woman of easy virtues, it is difficult to countenance the plaintiff's contention that she was concubine/mistress of deceased Ganpati. The entries in the voters lists (D-95, D-102 and D-106) would show that names of deceased Ganpati and defendant - Chandrabhagabai are shown as occupants of the same house. There is evidence on record to show that the four sons begotten to defendant Chandrabhagabai were admitted in the schools. The name of their father was shown as Ganpati Karwar. The first appellate Court did not discuss such evidence, which is placed on record. The defendant referred to sale deed dated 20-5-1970 (D-11), which she filed on record. It appears that deceased purchased a house property at Osmanabad under sale deed dated 20-5-1970 from one Sayeedabee and Ahmed Bin Ali. The original sale deed is produced by the defendant. It is more probable, therefore, that she was in possession of such document because she was treated like wife by deceased Ganpati.

19. There is satisfactory evidence on record to show that deceased Ganpati and the defendant lived together for a considerable period and were regarded as husband and wife. It is more probable that due to such a marriage by Ganpati with a woman of lower caste, the deceased plaintiff was annoyed. There is greater probability of such reason being the driving force at the time of partition effected between deceased Ganpati and his brother Rama. There is proximity of time between the companionship of deceased Ganpati and the defendant with the event of the family partition. Under the circumstances, the first appellate Court ought to have held that the presumption was available regarding the legitimacy of the marriage and the same was not rebutted by the plaintiff. For, the plaintiff's evidence falls short to prove that the defendant was keep of deceased Ganpati. Mr. Natu, learned Advocate for the respondent No.(i) would submit that opinion evidence of relationship could not be given importance because the witnesses had no special knowledge. He seeks to rely on "Dolgobinda Paricha Vs. Nirmal charan Misra and others" (AIR 1959 Supreme Court 914). The Apex Court observed, in the given case, that 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. The "belief" or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. With respects, this authority is of no assistance to the respondents in the present case. The defendant examined witnesses, who attended her marriage. The first appellate Court rejected her contention only because there was no proof regarding performance of "Homa" and "Saptapadi".

20. Considering the totality of the circumstances and the evidence on record, I have no hesitation in holding that the first appellate Court committed patent error while holding that the defendant was the keep of deceased - Ganpati. The first appellate Court failed to raise the presumption available under Sections 112 and 114 of the Evidence Act. This, in my opinion, is the perverse finding on the relevant issue pertaining to marriage between the defendant and deceased Ganpati. The findings of both the Courts are, therefore, liable to be set aside.

21. In the result, the appeal is allowed. The impugned judgment of the first appellate Court is set aside. The suit stands dismissed. The parties to bear their own costs.

Appeal allowed.