Second Appeal No. 108 of 1993 along with Civil Application No. 593 of 2007. Case: Kashibai Namdeo Jadhav & Ors. Vs Yamunabai w/o Namdeo Jadhav & Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 108 of 1993 along with Civil Application No. 593 of 2007 |
| Counsel | For Appellant: Mr.T.D. Deshmukh a/w Mr. Samrat Shinde, Advs. and For Respondents: Mr. K.Y. Mandlik, Adv. |
| Judges | R. D. Dhanuka, J. |
| Issue | Code of Civil Procedure, 1908 - Section 100; Indian Evidence Act, 1872 - Sections 50, 114, 65; Hindu Marriage Act, 1955 - Sections 4, 29(2), 13, 3(a), 5 |
| Judgement Date | February 25, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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By this second appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellants (original defendants) have impugned the order and judgment dated 3rd September 1992 passed by the III Additional District Judge, Solapur allowing the appeal filed by the original plaintiffs and setting aside the decree passed by the learned trial Judge dismissing the suit for a decree for partition and separate possession.
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The original plaintiffs had filed a suit for declaration and perpetual injunction and in the alternative for partition and separate possession of share in certain agricultural lands. For the sake of convenience, the parties to the present proceedings are described as they were described in the proceedings before the learned trial Judge in the later part of the judgment. Some of the relevant facts for the purpose of deciding this second appeal are as under:-
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The present dispute pertains to the lands 783, 789, 790/1, 792/2, 855, 906, 911/1, 911/2 and 777 all situated at Waphale, Taluka Mohol, District Solapur. It was the case of the plaintiffs that the suit lands were ancestral properties of late Namdeo Sambha Jadhav. It was alleged by the plaintiffs that the plaintiff no.1-Yamunabai was the legally wedded wife of Namdeo Sambha Jadhav. It was alleged that the plaintiff nos.2 to 4 are the children begotten to the said Yamunabai from Namdeo S. Jadhav. It was the case of the plaintiffs that the defendant no.1- Kashibai was the first wife of Namdeo S. Jadhav and divorce took place between Namdeo S. Jadhav and Kashibai, defendant no.1 herein on 7th September 1963 under an alleged Deed of Divorce. The defendant nos.2 and 3 are the children of Namdeo Sambha Jadhav begotten from his first wife Kashibai Namdeo Jadhav. It was the case of the plaintiffs that the defendant no.1 was suffering from black leprosy. In the result, Namdeo divorced the defendant no.1 in the year 1963 according to the customs prevailing in Maratha community to which the parties belonged to. It was the case of the plaintiffs that such type of divorce by mutual consent was permissible according to the customs prevailing in Maratha community at the relevant time.
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It was the case of the plaintiffs that after taking divorce from the defendant no.1, the said Namdeo S. Jadhav married with plaintiff no.1 Yamunabai. According to the plaintiffs, there was a partition effected between the plaintiffs and the defendants and the lands described in para 1B of the plaint were given to the plaintiffs. Rest of the suit lands were given to the defendant nos.2 and 3. It was the case of the plaintiffs that since Kashibai had already taken divorce from the said Namdeo S. Jadhav, she could not get any share in the suit properties.
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The plaintiffs accordingly filed a suit for declaration and perpetual injunction and in the alternative for partition and separate possession. The said suit was resisted by the defendants by filing a written statement. The defendants denied that the plaintiff no.1 was married with late Namdeo Jadhav and also denied that the plaintiff nos.2 to 4 were the legitimate children of late Namdeo Jadhav. The defendants also denied that there was any divorce between the defendant no.1 and late Namdeo Jadhav or that the plaintiffs lived with the said late Namdeo Jadhav. It was denied that the said Namdeo Jadhav effected any partition of the suit lands between the plaintiffs and defendants in or about 1967 or that the suit lands as described in paragraph 1(b) of the plaint were allotted by the said Namdeo Jadhav to the plaintiffs. The defendants also made various allegations about the character of the plaintiff no.1 in the written statement. Insofar as the plaintiff nos.2 to 4 are concerned, it was alleged that they were born to the plaintiff no1 from one Waman Chavan and some other person. The defendants denied that the plaintiffs had any interest of any nature whatsoever in the suit lands and opposed the reliefs prayed by the plaintiffs.
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The learned trial Judge framed seven issues which are extracted as under with concluding finding recorded of each of the issue. They are as under:-
Issues
Findings
1.
Do plaintiffs prove that, they got suit property mentioned in Para 1-B of plaint in the petition in the year 1967
No
2.
Do plaintiffs prove that, plaintiff no.1 is legally wedded wife of Deceased Namdeo and plaintiff nos.2 to 4 are the legitimate children of plaintiff No.1 from deceased Namdeo
No
3.
Do plaintiffs prove their title to suit property mentioned in
Para 1-B of plaintNo
4.
Do they further prove their lawful possession over the suit property on the date of institution of suit
No
5.
Whether it is just to grant discretionary relief of declaration and injunction in favour of plaintiffs
No
6.
Are plaintiffs entitled in the alternative to claim partition of the suit property mentioned in Para 1(A) and 1(B) of plaint
No
7.
What decree and order
See order below
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On behalf of the plaintiffs, the plaintiff no.1 examined herself as one of the witness as PW-1. The plaintiffs also examined other four witnesses viz. Dattatraya Atre (PW-2), Ambadas Jagdale (PW-3), Namdeo Chavan (PW-4), and Babu Parve (PW-5). The plaintiffs also produced various documentary evidence before the learned trial Judge. On behalf of the defendants, the defendant no.1 examined herself as (DW-1) and also produced various documentary evidence.
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The learned trial Judge recorded that it was an admitted position that the suit lands were ancestral properties of late Namdeo Jadhav. The said Namdeo Jadhav died on or before 3rd December, 1974. The plaintiff no.1 was admittedly the mother of the plaintiff nos.2 to 4 and was admittedly married to one late Waman Chavan, who earlier resided at the same village. It was also an admitted position that the defendant no.1 was the first wife of late Namdeo Jadhav and was the mother of the defendant nos.2 & 3.
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Insofar as the issue whether the plaintiff no.1 was a legally wedded wife of late Namdeo Jadhav or not is concerned, the learned trial Judge held that the plaintiffs had not pleaded that there was divorce between the plaintiff no.1 and her first husband Waman Chavan in the plaint. The learned trial Judge held that the plaintiffs had tried to suppress relevant facts in their plaint so far as the status of the plaintiff no.1 was concerned. It is held that since the plaintiffs had not pleaded that the plaintiff no.1 had divorces her first wife before marrying with Namdeo Jadhav, the plaintiffs could not be allowed to prove that there was a divorce between the plaintiff no.1 and her first husband in absence of any such pleading.
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The learned trial Judge also held that the plaintiffs had not given any particulars of the day, date of month, season or even the year when she had alleged to have divorced her first husband. The divorce deed was not placed on record. It was the case of the plaintiffs that the said alleged divorce deed between the plaintiff no.1 and Waman Chavan was lost before about 10 to 20 years. The learned trial Judge held that the said stand of the plaintiffs appeared to be unnatural and unreliable.
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Before the learned trial Judge the plaintiffs produced certified copies of the deposition of the plaintiff no.1 in R.C.S. No.121 of 1966 at Exhibit 69. The learned trial Judge held that in the said evidence marked at Exhibit C-69, the plaintiffs had deposed on oath that the divorce deed was in her possession. The said deposition was recorded on 20th January, 1975. The learned trial Judge has accordingly held that the plaintiff no.1 had contradicted herself on the point of loss of the divorce deed before the learned trial Judge and was not stating the truth about the alleged divorce with Waman Chavan. The learned trial Judge accordingly recorded a finding that the evidence of the plaintiff no.1 about the divorce between herself and Waman Chavan appearing highly unnatural and improbable. It is also held that the evidence of the plaintiff no.1 was not wholly reliable evidence and her evidence could not be relied unless there was substantial corroboration.
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Insofar as the evidence of PW-2, who had alleged to have sold the stamp papers to the plaintiff no.1 and to Waman Chavan on 12th June, 1963 is concerned, it is held by the learned trial Judge that the evidence of the said witness PW-2 did not show that the plaintiff no.1 and Waman Chavan had divorced each other even if it was assumed that they had purchased the stamp paper on 12th June, 1963. The said witness had clearly admitted that he did not know the purchaser of the stamps personally. It is held that the identity of the purchaser of the stamp paper was thus not established by the evidence of Mr.Dattatraya Atre (PW-2). It is held that the evidence of the said witness PW-2 thus did not assist the case of the plaintiff no.1.
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Insofar as the evidence of Mr.Babu Parve (PW-5) is concerned, the said witness had deposed that he was the witness to the divorce deed between the plaintiff no.1 and Waman Chavan. He further stated that one Mr.Gaffar Saheb was subscriber of the divorce deed. The learned trial Judge held that if Mr.Babu Parve was the attesting witness to the divorce deed in question, the plaintiff no.1 should have stated that fact in her evidence which crucial part of evidence which she failed to state.
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The Lower Appellate Court has held that even if the children were born in view of the fact that the man and woman had lived together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbors and there is presumption in favour of their marriage as per Sections 50 and 114 of the Indian Evidence Act, 1872, such presumption of law in favour of marriage and legitimacy is not to be repelled lightly by mere circumstance of probabilities. The evidence should be strong, satisfactory and conclusive.
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In so far as the Divorce...
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