abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3904 OF 2006 WITH CIVIL APPLICATION NO. 6013 OF 2007 IN FIRST APPEAL NO. 1521 OF 2006 Sanjay Purshottam Vaidya .. Applicant V/s Vidula Purshottam Vaidya & Anr. .. Respondents Mr.A.S. Khandeparkar i/b Khandeparkar Associates for the applicant. Mr.P.V. Sathe with Ms.L.C. Wadhwani for the Respondents. CORAM : D.G. KARNIK, J. DATE : 17th November 2008 & 18th November 2008 ORAL ORDER ORAL ORDER ORAL ORDER: 1. Civil Application No.3907 of 2006 is made by Rekha Patil (alias Rekha Vaidya) who claims to be a wife of Sanjay Vaidya to bring herself on record of the appeal as the legal representative of the deceased appellant Sanjay Vaidya. - 2 - 2. Civil Application No.6013 of 2007 is made by Rekha for setting aside the order dated 13th February 2007 passed by the learned Judge, City Civil Court Judge, Greater Mumbai. That order was made by the learned Judge on a reference made to him under the proviso to Rule 5 of Order 22 of the Code of Civil Procedure (for short "the Code") calling for the report whether Rekha was the legally wedded wife of Sanjay. By that order, the learned Judge, City Civil Court held that Rekha was not the legally wedded wife of the deceased Sanjay. 3. In the light of submissions of the counsel for the parties, questions that arise for my consideration and my answers thereto are as follows: (A) Whether Rekha is the legally wedded wife of Sanjay? .. No (B) Whether the right to suit survives in Rekha so as to enable her to be brought on record as a legal representative of the deceased appellant Sanjay? .. No 4. In order to determine the questions, it is - 3 - necessary to refer to the facts of the case in brief. . The appellant Sanjay was the son of Purshottam Vaidya. Vidula (respondent no.1 herein) is the widow and Dr.Aditi Raj (respondent no.2 herein) is the married daughter of Purshottam Vaidya. Purshottam was the owner of a flat bearing Block No.5, "Manisha", Bombay Co-operative Housing Society, Plot No.30-A, Road No.2, Sion (East), Mumbai (for short "the suit flat"). Purshottam died on 20th July 1995 leaving behind him the appellant Sanjay and the respondents as the only near relatives. According to the respondents, Purshottam left behind him his last Will and Testament dated 6th July 1989 bequeathing the suit flat to the respondent no.2. The deceased Sanjay, therefore, had no concern in the suit flat. 5. The respondents filed a suit, bearing Regular Civil Suit No.1122 of 1996, against Sanjay for an injunction restraining him from remaining upon or residing in and using or occupying the suit flat and/or from disturbing the peaceful and quiet use, occupation, enjoyment and possession of the respondents of the suit flat. By a judgment and order dated 5th June 2006, the City Civil Court, Mumbai decreed the suit. Aggrieved by the decision of the City Civil Court, Sanjay filed an appeal bearing First Appeal No.1521 of 2006 in this - 4 - Court. During the pendency of the appeal, Sanjay died on 1st August 2006. On 24th August 2006, Rekha filed an application for bringing her on record as the widow and legal representative of the deceased Sanjay. The respondents opposed the application inter alia contending that Rekha was not the legally wedded wife of Sanjay but merely looking after him during his illness. The respondents contended that Rekha could not be substituted in place of the appellant as his legal representative. Since the factum of marriage as well as its legality was disputed, this Court by an order dated 21st September 2006 referred the matter to the City Civil Court, Mumbai under proviso to Rule 5 of Order 22 of the Code. Parties led oral and documentary evidence before the City Civil Court. After consideration of the evidence learned Judge of the City Civil Court, by his order dated 13th February 2007 held that Rekha was not the legally wedded wife of Sanjay and as such not the legal representative of the appellant. The finding was accordingly returned to this Court. Initially, the decision of the City Civil Court was challenged by Rekha by filing a writ petition being Writ Petition No.4771 of 2007. However, the writ petition was withdrawn with leave of the Court and the Civil Application No.6013 of 2007 has been filed by Rekha challenging the decision of the the City Civil Court. - 5 - 6. With the help of the learned counsel for the parties, I have gone through the oral and documentary evidence adduced by the parties. From the evidence on record, it is clear that the relation of Sanjay with his parents were strained. In fact, they were not on visiting terms. By his Will dated 6th July 1989, Purshottam - father of Sanjay has bequeathed the suit flat to his only daughter - the respondent no.2. Though the Will was initially challenged by Sanjay, Probate has been granted to the said Will by this Court. It, therefore, cannot be disputed that the suit flat was bequeathed by Purshottam to the respondent no.2 who has become its sole owner. 7. Sanjay was suffering from cancer for a few years prior to his death. It is the case of the applicant Rekha that she was running a tailoring shop situated near the suit flat. Sanjay got acquainted with her while he was staying in the suit flat and they got married on 10th March 2005 at Vitthal Mandir, Vajreshwari. This case of the applicant has been disbelieved by the learned Judge of the City Civil Court who has given elaborate reasons for coming to the conclusion that there was no such marriage. I am generally in agreement with the finding as well as the reasons recorded by the learned Judge of the City Civil Court. I would, however, hereafter refer to the - 6 - evidence and the documents to which my attention was drawn by the learned counsel for the parties. 8. The applicant Rekha filed an affidavit on 17th November 2006 in lieu of examination in chief. In the affidavit, she has stated that she got married to Sanjay Purshottam Vaidya on 10th March 2005 at Vitthal Mandir, Vajreshwari. She also produced on record a duplicate certificate dated 16th October 2006 issued by a member of Vajreshwari Gram Panchayat that the marriage between Sanjay and Rekha took place at Vajreshwari on 10th March 2005. She deposed that the original certificate which was kept by her in the suit flat was removed by the respondents during the period between 22nd August 2006 27th September 2006 when she was temporarily dispossessed from the suit flat. She also produced on record a xerox of an office copy of the letter dated 21st April 2006 written by the deceased Sanjay to the Manager, Canara Bank authorising the joint operation of his bank locker by Rekha. Original of the said letter has been produced on record by a bank official. In the said letter, Sanjay has referred to Rekha as his wife. Rekha examined two witnesses who allegedly were present at the wedding as also Radheshyam Shastri (A.W.5) who allegedly acted as a priest and performed the marriage of Rekha and Sanjay at the Vitthal Mandir. Strongly placing reliance on the aforesaid evidence, counsel for - 7 - the applicant submitted that read as a whole, the evidence proved by preponderance of probability that Sanjay was married to Rekha and their marriage took place on 10th March 2005 at Vitthal Mandir, Vajreshwari. It is no doubt true that in the letter dated 21st April 2006, Sanjay has referred to Rekha as his wife. This letter was written by Sanjay while he was in the hospital taking treatment for terminal cancer. He wanted to operate the bank locker and, therefore, by that letter he authorised Rekha to operate the locker. It may be noted that when this letter was written, Sanjay was terminally ill and suffering from cancer and he died in about 3 months of writing this letter. There is no evidence on record regarding his mental state of health when he wrote this letter. At the time when this letter was written, Rekha was the only person attending on him as the relations between Sanjay and the respondents were strained. He had developed some intimacy with Rekha and may be they had "living in" relationship for a few months. She was in a position to influence his will. There was no one who could operate the locker on his behalf while he was in the hospital. Therefore, he had to give an authority to someone to operate his locker while he was in the hospital. He, therefore, might have given the letter to Rekha authorising her to operate the locker and at that time, in order to give the authority, might have referred to - 8 - her as his wife. In any event, this letter alone would not prove the factum as well as legality of the marriage between Sanjay and Rekha, and it would be prudent to look to the entire evidence and seek corroboration. 9. Rekha examined two witnesses, who were alleged to be present at the time of marriage; one is alleged to be a friend of Sanjay and another is alleged to be a friend of Rekha. In her affidavit in lieu of examination in chief, Rekha did not mention the names of these two witnesses nor did she state that they were present at the marriage. In fact, she did not at all state that anybody was present at the marriage. Admittedly, Rekha has a mother and two brothers living. Their relations are cordial. According to the respondents, even the father of Rekha was living at the time of the alleged marriage though this is disputed. Admittedly, the mother and the two brothers of Rekha did not attend the marriage. No reason has been ascribed by Rekha in her affidavit in lieu of examination in chief why her mother and two brothers, with whom she had cordial relations, were not present at the time of her alleged marriage. Marriage was not registered according to the Hindu Marriage Act. If Sanjay and Rekha took the precaution of obtaining a certificate of a member of Gram Panchayat about their marriage immediately after the marriage, there was no reason for Sanjay or Rekha - 9 - not to register their marriage in accordance with the law. 10. As regards the priest, Rekha, in her affidavit in lieu of examination in chief has not mentioned the name of the priest who allegedly performed the marriage. The priest appears to be a got up witness. His examination in chief is of two lines. He stated that he knew Rekha. He further stated that he performed her marriage with Sanjay Vaidya at Vitthal Mandir on 10th March 2005 as per Hindu Rites and Customs. The examination in chief ends with these two sentences. He did not state either in the examination in chief or in the cross examination that saptapadi was performed. In the cross examination, when he was asked what mantras he recited, he stated he only recited "ashirwad mantra". When he was asked 24 names of Lord Krishna, which form part of ashirwad mantra, he stated he did not know the 24 names of Lord Krishna. In the cross examination, he stated that he performed the marriage within half an hour. The deposition of Radheshyam Shastri, the alleged priest, does not inspire confidence. 11. As regards saptapadi, section 7(2) of the Hindu Marriage Act states that where the customary rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken. In - 10 - the present case, it is not the case of the parties that saptapadi was not an essential part of the marriage ceremony according to custom applicable to either of them. In fact, in the cross examination of the respondent no.2, the applicant made a suggestion that saptapadi was performed indicating that saptapadi was an essential part of the customary rites of marriage. However, in her affidavit in lieu of examination in chief, Rekha did not state that saptapadi was performed. The priest in his evidence did not state that saptapadi was performed and the two witnesses who attended the marriage, also in their evidence did not state that saptapadi was performed. Thus, there was no evidence that saptapadi was performed. The respondents have specifically denied the marriage. They have also stated that saptapadi was not performed. In the circumstances, it was the duty of the applicant to prove that saptapadi was performed and/or the marriage took place in accordance with the customary religious rites. Therefore, even if one assumes either on the basis of the letter dated 21st April 2006 or otherwise that some ceremony like marriage was performed on 10th March 2005, it cannot be held to be a valid marriage as saptapadi, which was an essential part of the marriage, was not performed. 12. For these additional reasons, I endorse the - 11 - finding recorded by the learned Judge of the City Civil Court that Rekha has not proved that she was the legally wedded wife of the applicant. 13. In my view, the right to sue - to prosecute the appeal does not survive. Admittedly, the suit flat belonged to Purshottam Vaidya. Purshottam has bequeathed the suit flat to respondent no.2 and not to Sanjay. The appellant Sanjay had no legal title to the suit flat. He only claimed that he was residing in the suit flat. His possession was protected to the extent of one room by an interim order passed by the Court. His right to occupy the room was a personal right and was not based on ownership or any other right. That personal right, which he enjoyed by an order of the Court, came to an end on his death. That right was not transferable nor transmissible (inheritable). Rekha, assuming that she is a legally wedded wife of Sanjay, has no personal right to continue in occupation. No right was conferred upon her by any order of the Court. Since Sanjay did not have any transferable or transmissible right to remain in possession of the suit flat, the right cannot be inherited by Rekha. Rekha, therefore, has no right to sue, that is to say to continue the appeal by challenging the decree for possession and injunction. - 12 - 14. Order 22 Rule 1 of the Code of Civil Procedure provides that the suit (which includes an appeal) shall not abate if the right to sue survive. In other words, where the right to sue does not survive and the suit or proceedings would abate on death of a person. In my view, on death of Sanjay, the appeal has abated as right to sue did not survive. 15. For these reasons, both the civil applications for bringing Rekha on record as legal representative of Sanjay are required to be dismissed. Civil applications are accordingly dismissed. Consequently, the appeal is disposed of as abated. 16. Learned counsel for the applicant prays for stay of the operation of this order as the applicant wants to challenge the order before the Supreme Court. Learned counsel for the respondents strongly opposes the request and submits that in the event the Court is inclined to grant the request, an undertaking be obtained from the applicant. Operation of this order is stayed for a period of 8 weeks subject to the applicant furnishing an undertaking that she will not create any third party interest in the suit flat. Undertaking shall be filed within one week. - 13 - (D.G. KARNIK, J.)