1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 255 OF 2007 Asma Hussain W/o Iqbal Hussain, Age : 68 Years, Occu. : Household, R/o Vijaynagar, Purna, Dist. Parbhani, Alleged to be Padma W/o Lobhaji Late Through her power of attorney, Abdul Latif S/o Abdul Rahim, Age : 50 Years, Occu. : Agril. & Business, R/o Vijaynagar, Purna, District Parbhani. -- -- APPELLANT (Orig. Respondent) V E R S U S 1. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan, Age : 57 Years, Occu. : Agril. & Business, R/o Lal Ginning Mill, Purna, Dist. Parbhani. 2. Sayyed Ahmad Hussain S/o Ali Hasan, Age : 60 Years, Occu. : Agril. & Business, R/o Lal Ginning Mill Purna, Dist. Parbhani. -- -- RESPONDENTS (Orig. Petitioners) WITH SECOND APPEAL NO. 256 OF 2007 1. Ajmal Hussain S/o Iqbal Hussain, Age : 37 Years, Occu. : Agril. & Business, R/o Lal Ginning Mill Purna, Dist. Parbhani. 2 2. Salmabanu W/o Abdul Latif, Age : 42 Years, Occu. : Household, R/o Lal Ginning Mill Purna, Dist. Parbhani. 3. Asma Hussain W/o Iqbal Hussain, Age : 68 Years, Occu. : Household, R/o Lal Ginning Mill Purna, Dist. Parbhani. Through her power of attorney, Abdul Latif S/o Abdul Rahim, Age : 50 Years, Occu. : Agril. & Business, R/o Vijaynagar, Purna, District Parbhani. -- -- APPELLANT (Orig. Plaintiffs) V E R S U S 1. Mannasab @ Sayyed Ahmad Hussain S/o Ali Hasan, Age : 62 Years, Occu. : Agril. & Business, R/o Lal Ginning Mill Purna, Dist. Parbhani. 2. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan, Age : 57 Years, Occu. : Agril. & Business, R/o Kamal Talkies, Purna, Dist. Parbhani. -- -- RESPONDENTS (Orig. Defendants) WITH SECOND APPEAL NO. 257 OF 2007 1. Asma Hussain W/o Iqbal Hussain, Age : 68 Years, Occu. : Household, R/o Vijay Nagar, Purna, Dist. Parbhani. alleged to be Padma W/o Lobhaji Late. 3 2. Salmabanu W/o Abdul Latif, Age : 42 Years, Occu. : Household, R/o Vijay Nagar, Purna, Dist. Parbhani. alleged to be Manju D/o Lobhaji Late. 3. Abdul Latif S/o Abdul Rahim, Age : 50 Years, Occu. : Agril., & Business, R/o Vijay Nagar, Purna, Dist. Parbhani. 4. Ajmal Hussain S/o Iqbal Hussain, Age : 37 Years, Occu. : Agril. & Business, R/o Vijay Nagar, Purna, Dist. Parbhani. alleged to be Bablu S/o Lobhaji Late. -- -- APPELLANT (Orig. Defendants) V E R S U S 1. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan, Age : 57 Years, Occu. : Agril. & Business, R/o Kamal Talkies, Purna, Dist. Parbhani. 2. Sayyed Ahmad Hussain S/o Ali Hasan, Age : 60 Years, Occu. : Agril. & Business, R/o Lal Ginning Mill Purna, Dist. Parbhani. -- -- RESPONDENTS (Orig. Plaintiffs) Shri A. G. Godhamgaonkar, Advocate for the Appellants. Shri S. C. Bora, Advocate holding for Shri S. G. Chapalgaonkar, Advocate for the Respondents. 4 CORAM : N. D. DESHPANDE, J. Date on which judgment reserved : 20.11.2009. Date on which judgment pronounced : 16.12.2009. J U D G M E N T : 1. These are three second appeals directed against a common judgment and order dated 15th January, 2007, passed by the learned Principal District Judge, Parbhani in two Regular Civil Appeals No. 168/2000 and 169/2000 and one more Regular Civil Appeal No. 89/2003 decided by a separate judgment on the same day, all arising out of three civil proceedings between the same parties in respect of the estate of deceased named one Iqbal Hussain, who died on 28.04.1991, resident of Lal Jinning Compound at Purna, District Parbhani. 02. In all these three proceedings before the Trial Court and the First Appellate Court below, parties had agreed by a pursis for recording evidence in common, and for reading the same in all these proceedings for deciding their respective claims in the counter suits and appeals as well. Consequently, the dispute being one referring the estate of Iqubal Hussain and the same involves common question of law and facts resulted in a common decision of similar issues and points raised throughout in proceedings. So also before this Court in Second Appeals. 5 03. The appellant namely Asma Hussain firstly applied, for succession certificate as widow and legal heir of deceased Iqbal Hussain, then jointly with her son namely appellant Ajmal Hussain and married daughter Salmabanu, all appellants filed suit for declaration and injunction as legal heirs, so as to claim to the property both movable and immovable of the deceased which includes suit property namely survey No. 16, 16/1, 16/2, 17/1 and 17/2 situated at Purna, District Parbhani, within the limits of Purna Town and also sanctioned layout of survey No. 16. 04. Heard arguments of both the sides at length. The substantial questions of law as formulated for consideration are as under : i. As to the paternity of two children born namely Ajmal Hussain and Salma Banu. ii. As to the conduct of the deceased Iqbal Hussain acknowledging the marriage and as such ratification of the same. iii. As to the provisions of Mohammedan Law as to marriage and applying those whether Asma @ Padma Hussain can be said to have married Iqbal Hussain. 05. Admittedly, both the respondents and one Nissar Ahmed who is non resident Indian (London based) are real brothers of 6 deceased Iqubal Hussain. However, he is not party to any of the proceedings and appears to be disinterested in the litigation between the two parties namely present appellants on one side and respondent brothers duo on other. Deceased Iqubal Hussain had married to Ayeshabegum who died in the year 1985, pre-deceased Iqubal Hussain. Iqubal Hussain was a Member of Legislative Assembly as well as elected President of Municipal Council, Purna and was a social and political figure. There was dacoity on 20.06.1985 in the house of deceased Iqubal Hussain at Lal Jinning Compound, Purna and in the said dacoity Iqubal Hussain and his wife Ayeshabegum were severely beaten by the miscreants. Ayeshabegus succumbed to the injuries and Iqubal Hussain narroly escaped from the death. Since, then he was not keeping good health, suffered paralytic attack and become indisposed. He died on 28.04.1991 in Government Hospital at Parbhani due to prolonged illness. 06. According to the respondents duo, they being real brothers of Iqbal Hussain, they succeeded to the estate of deceased Iqbal Hussain who died issueless. Therefore, on 21.09.1991, the respondents duo brothers filed a civil suit bearing Special Civil Suit No. 287/1991 in the Court of Civil Judge Senior Division, Parbhani, against these four appellants, for declaration that defendant No. 1 Padma is unconcerned with the family of the plaintiffs not being the wife of late Iqbal Hussain, that defendant No. 2 Manju and defendant No. 4 Bablu her daughter and son are not related in any capacity with the family of the plaintiffs and more particularly with the late Iqbal Hussain as alleged wife, daughter and son respectively, 7 and for perpetual injunction restraining them from dealing with immovable property including the suit property left by the deceased Iqbal Hussain. A declaration was also sought in respect of will dated 03.01.1987 of Iqbal Hussain as false, fabricated and bogus document for allowing false and bogus claim of the estate of the deceased, fraudulently obtained by them. The said civil suit of the respondents bearing Special Civil Suit No. 287 of 1991 was renumbered as Regular Civil Suit No. 25 of 1997. 07. The appellants on 03.10.1991 filed a Regular Civil Suit No. 303 of 1991 in the Court of Civil Judge Senior Division, Parbhani against the respondents No. 1 and 2 the brothers of Iqbal Hussain for declaration that appellants Ajmal Hussain and Salmabano are the legitimate son and daughter and Asma Hussain is the legally wedded wife of deceased Iqbal Hussain and also prayed for perpetual injunction restraining the defendants/respondents not to interfere or cause any damage to the property left by the deceased Iqbal Hussain referring to the suit property situated at Purna, Taluka and District Parbhani. They also applied for temporary injunction simultaneously. 08. Shortly thereafter on 11.11.1991 appellant No. 1 Asma Hussain made an application registered as Misc. Case No. 69/1991 for grant of succession certificate in respect of bank account, National Saving Certificate, pension amount of deceased Iqbal Hussain who died on 28.04.1991 in the capacity as widow of Iqbal Hussain and only names of her daughter Salmabano and her son Ajmal Hussain who are the present appellants No. 2 and 4 were 8 shown as near relatives of the deceased in para 3 and referring to the debts and securities of deceased Iqbal Hussain in the said application before the Civil Judge Senior Division, Parbhani, without mentioning the names of three brothers including the present respondents duo who had filed the above mentioned civil suit for declaration and injunction. 09. Both the civil suits are thus, in the nature of counter claims or can be termed as cross suits filed by the parties against each other to claim the estate of deceased Iqbal Hussain, more particularly to the suit property. As such, the pleadings of the parties though separately filed by them in the suits are not two different cases, but one and the same. All material facts and contentions raised by them remained the same throughout in all the three proceedings. Therefore, they chose to lead evidence in common and referred all oral and documentary evidence recorded therein for reliance by filing pursis to that effect for just decision and disposal of these proceedings. 10. So far second appeal No. 255 of 2007 is concerned, the issue is limited to a challenge to an order under Section 383 of the Indian Succession of Act of revocation of succession certificate granted in the name of appellant Asma Hussain in Miscellaneous Case No. 69 of 1991. I have gone through said impugned order, it is observed that it was not necessary to discuss the evidence recorded in these two cross suits for declarations and injunction between the parties which are substantive suits and the entire discussion was focused on the sole ground of suppression of material facts by the appellants. 9 However, there is some reference made to the oral testimony of Abdul Latif Power of Attorney Holder of appellant Asma Hussain. The application for revocation of succession certificate made by the brother of the deceased Iqbal Hussain which is in-confirmity with the stand taken and the grounds raised by them for revocation of the impugned succession certificate before the Lower Court. The appellant/applicant Asma Hussain neither gave evidence in person before the Court nor before the Commission throughout the proceeding. The relations of the respondents as real brothers of deceased Iqbal Hussain were known to the appellant and she had apprehension of challenge by them as legal heirs i. e. to the estate of the deceased Iqbal Hussain. Now doubt, she is guilty of suppression of material facts and i. e. sufficient ground for revocation of impugned succession certificate under Section 383 of the Indian Succession Act, in the light of the evidence and other two proceedings. The said impugned order of the First Appellate Court is upheld. 11. Now coming to the claims of the appellants in the two cross suits by the two appeals and the substantial questions of law mentioned above, learned counsel Shri P. G. Godhamgaon for the appellants relied on the provisions of Mohammedan Law application to paternity of two children namely Ajmal Hussain and Salmabanu, referring to the conduct of the deceased Iqbal Hussain acknowledging the marriage and ratification of the same in the absence of direct proof of marriage by them for presumption of paternity and of the marriage under Rule 69, much emphasis was given on these rules on four points : 10 (a) Consumption of marriage (presumed from valid retirement), [Rule 69 (ii)(a)] (b) A continuous and a prolonged cohabitation [Rule 69 (ii)(d)] (c) Acknowledgment of marriage [Rule 69 (ii)(b)] (d) Acknowledgment of the paternity of a child [Rule 69 (ii)(c)] Thus the doctrine of acknowledgment or ikrar for confirming a status of legitimacy of a child whether a son or daughter. Acknowledgment of paternity by father or mother [Rule 144 (i) and (ii)] were pressed in service in the course of arguments. As such, acknowledgment of paternity of a child may be made either by the father or mother and generally made by the father was the bone of contention of arguments advanced by the learned counsel for the appellants. Maternity is a fact and paternity is an inference accepted universally. He went on arguing that acknowledgment may be expressed or implied [Rule 144(i)] and no need of proof of express acknowledgment in muslim and any Mohammedan if the child is having openly treated as such. So very treatment and conduct leading to such an inference amounts to acknowledgment in Law. 12. It is interesting to note that both the parties relied on a decision of Privy Council reported in AIR 1922 PC 159 Sayyed Habibur Rahman Choudhary and another V. Sayyed Saltaf Ali Choudhary and others. 13. Shri Godhamgaonkar, learned counsel for the appellants submitted that since a muslim marriage with mutual consent and 11 proposal and acceptance need not be in any particular form. No religious ceremony is required for validity of marriage. The marriage can be presumed from the fact of an acknowledgement by the man of the woman as his wife and it can be in the absence of direct proof from i. Prolonged and continual cohabitation as husband and wife or ii. The fact of acknowledgment of the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgment are fulfilled, or iii. The fact of the acknowledgment by the man of the woman as his wife. Reliance was placed on the ratio "Although according to Mohammedan law ikrar or acknowledgment in general stands upon much the same footing as an admission as defined in the Evidence Act, acknowledgment of parentage and other matters of personal status stand upon higher footing than matters of evidence and form a part of the substantive Mohammedan law". Much emphasis was given on the point that, "Whether legitimacy cannot be established by direct proof of such a marriage acknowledgment is recognized as Mohammedan law as a means whereby marriage of parents or legitimate decent may be established as a matter of substantive law. "Acknowledgment has only the effect of legitimization where either the fact of the marriage or its exact time with reference to 12 legitimacy of child's birth is a matter of uncertainty". The acceptance in a contract of marriage may also be made in any form, the acceptance should however be unconditional. 14. The presence of kazi at the time of contract between the parties can be dispensed with no formalities by way of religious rites are at all necessary, marriage moreover a civil contract and no priest or kazi is necessary for its performance. Ceremony of social nature may be performed, though not essential. A valid marriage may be proved directly by production of some document. If the parties to the marriage having no legal, physical and moral impediments to sexual intercourse, retire into privacy, they are said to be valid retirement. He quoted instances from record and documents for presumption of marriage from cohabitation and presumption of validity. It was further argued that a marriage between a Hindu and Hindu woman not already married, her marriage with Mohemmadan is void and issue is not illegitimate. 15. Admittedly, neither appellant Asma Hussain nor her children appellants Ajmal Hussain and Salmabano step in the witness box and, therefore, certain circumstances of marriage and paternity are thus become relevant and those were canvased by Shri Godhamgaonkar, learned counsel for the appellants and according to him, those have been established and duly proved on record. So the case of the paternity of the children is to be independently weighed and its bearing would be on the issue of marriage of Asma Hussain by indirect evidence. It was pointed out that there is documentary 13 evidence of marriage called siyanama between Asma Hussain and Iqbal Hussain which took place at Secundrabad in the year 1962. The said document being of 30 years old document requires consideration without formal proof. The siyanama discloses that Asma Hussain as muslim. 16. The appellants also relied on siyanama of marriage of Abdullatif with Salmabano dated 02.05.1987. The same is signed by deceased Iqubal Hussain as father of Salmabano. Thus the paternity of Salmabano should not be doubted. 17. The appellant Asma Hussain is receiving M. L. A. pension afte demise of Iqubal Hussain. The nomination of Asma Hussain as nominee in the bank account of deceased Iqubal Hussain in various banks, joint account in the District Central Co-operative Bank, legal nomination is shown of Asma Hussain, joint account in District Central Co-operative Bank account No. 10303, joint locker No. 20 and 5 in Parbhani District Central Co-operative Bank, Purna branch and authority letter allowing Asma Hussain to operate the bank account with District Central Co-operative Bank Parbhani were also relied by the appellants. In addition to it certain National Savings Certificates purchased by the deceased Iqubal Hussain, appellant Asma Hussain is shown as nominee. The return of property in a criminal case was also ordered for handing over to Asma Hussain by an order of Judicial Magistrate First Class, Vasmat. Some letters written by Nissar Ahmad, the brother of deceased admitting the relationship of Asma Hussain with deceased Iqubal Hussain also relied by the appellants. Ajmal Hussain was admitted in school by 14 Iqubal Hussain and all these pieces of evidence were referred for reliance in support of their claim. 18. I have gone through the impugned judgments of both the Courts below carefully. The learned First Appellate Court records his findings on three points which would certainly cover the real dispute between the parties and the discussion made therein is very important for it is the final Court of facts. It refers to both the counter suits where evidence was recorded in common as the issues were identical question of fact and law. The appellant Asma Hussain was residing in the same residential house and compound, however, it was not considered as living in relationship or cohabitation as husband and wife. Non examination of appellant Asma Hussain was considered fatal to the claim of marriage. The evidence of general power of attorney holder namely Abdul Latif S/o Abdul Rahim cannot be considered as evidence on all relevant issues. Asma Hussain was working as a maid servant and residing in a separate room at Lal Jinning Compound and voters list figured her by name Padma Lobnaji Late prepared in the year 1984. It is admitted that Asma's real name is Padma, who was residing in Lal Jinning Compound and thus, there is no evidence for continuous cohabitation with the deceased Iqubal Hussain. 19. The document Siyanama about the marriage was also held not proved and was not considered for any presumptive value and rightly so in the light of non examination of Asma Hussain for discarding her status as wife of Iqubal Hussain in any form recognized by the Mohammedan Law. Both the Courts below which 15 are fact finding Courts had discussed oral testimony of all the witnesses and every piece of documentary evidence admissible and inadmissible, in order to find out the real relationship of the appellants with the deceased Iqubal Hussain. Mere assertion of a claim to a status or character to prove the relationship with the deceased for certain claim to the estate of the deceased requires some evidence, even for raising presumption when the fact in issue is being tried in respect of dead person. The relationship is such as matrimony and paternity is a matter of belief and, therefore, mere probabilities would not be sufficient, but the issue has to be answered in terms of preponderance of probabilities in the absence of direct evidence or substantive proof when the matter is hotly contested on the point of falsity of the claim. It is true that civil proceedings are unlike criminal trial "Standard of proof is preponderance of probabilities and not beyond the reasonable doubt". The process would be as simple as weeding out the improbabilities and impossibilities and then weighing the probabilities to know the preponderance of probabilities lies in whose favour. It is observed by the Apex Court in the judgment reported in AIR 1975 Supreme Court 1534 Dr. N. G. Dastane vs. Mrs. S. N. Dastane. "The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to 16 act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where. the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue" 20. The nomination papers submitted and the bank accounts, so also the Fix Deposit Receipts in the name of Asma Hussain of the relevant period were also taken into consideration by the fact finding Courts and did not find it sufficient for raising presumption. Various authorities also have been discussed which were relied by the parties and no re-appreciation of evidence would be permissible by this Court. 21. Thus upon consideration of record and after hearing both the sides at length, the present second appeals are devoid of merits and 17 deserves to be dismissed. All three appeals stand dismissed with costs and disposed of accordingly by this common judgment. [ N. D. DESHPANDE, J.] bsb/Dec. 09