( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 113 OF 2004 1. Shrimant s/o Limba Sangle, R/o Inderthana, Tq. Renapur, District Latur. 2. Smt. Radhabai w/o Nagorao Bansode, R/o Chandeshwar, Taluka and District Latur. APPELLANTS VERSUS 1. Smt. Laxmibai alleged w/o Limba Sangle, R/o Inderthana, Taluka Renapur, District Latur. 2. Sow. Gajarabai w/o Bapurao Bhavle, R/o Inderthana, Tq. Renapur, District Latur. 3. Smt. Sarjabai @ Bismillabai w/o Shaikh Abdul Rahim, R/o Ramabai Ambedkar Nagar, Sector No. 8, Near Oreuja Complex, C.B.D., Belapur, Navi Mumbai. RESPONDENTS ..... Mr. R.B. Deshmukh, advocate for the appellants. Mr. R.K. Ashtekar, advocate for the respondents. ..... [CORAM : K.U. CHANDIWAL, J. ] [DATE : 22nd April, 2010] ( 2 ) ORAL JUDGEMENT : 1. Heard the learned counsel extensively. 2. The second appeal was admitted on 10th April, 2007 by formulating following substantial questions of law. (i) Whether in the facts and circumstances of the present case, the first appellate Court was right in holding that plaintiff No. 1 - Smt. Laxmibai was legally wedded wife of deceased Limba Sangle and was, therefore, entitled to claim separate share in the suit property ? (ii) Whether in the facts and circumstances of the present case, the first appellate Court was right in admitting the evidence regarding entries in the Bank passbook and ration card, holding that they are the public documents and, therefore, do not require formal proof as such ? ( 3 ) 3. The suit for partition moved by Smt. Laxmibai (respondent No. 1 in the present second appeal), being Regular Civil Suit No. 624/1999, was dismissed, the appeal being Regular Civil Appeal No. 20/2002 was allowed by the first appellate Court and the second appeal on the above referred substantial questions of law. 4. The plaintiff – Smt. Laxmibai and her step- daughter Gajrabai assert that Limba Bapu Sangle is ancestor of the parties. Limba had land admeasuring 5 hectares 86 Ares from block No. 83 and a house bearing G.P. No. 38 situated at village Inderthana, Taluka Renapur. Limba Sangle died on 9th October, 1996. Plaintiff No. 1 (respondent No. 1 in the second appeal) asserts to be widow while defendant No. 1 and plaintiff No. 2 are the daughters of the said Limba. According to the plaintiff No. 1, after death of Limba, she stayed with defendant No. 1 and jointly cultivated the suit property. They were getting usufructs out of the properties. However, taking disadvantage of the plaintiff No.1’s position, the defendant No. 1 got his ( 4 ) name mutated in the revenue record and consequently, the plaintiff No.1 staked her claim being the widow of Limba for equal share with the son in the properties of her husband. 5. This has been refuted by the son of Limba – Shrimant (appellant No. 1 in this second appeal) on the ground that plaintiff No. 1 was already given in marriage at Mamdapur. She came to reside with Limba and to maintain and bring up the children. The wife of defendant No. 1 and plaintiff No. 1 are the real sisters, therefore, the claim of plaintiff No.1 to be wife of Limba being in a prohibited degree cannot be accepted. It was canvassed that the marriage of plaintiff No. 1 with deceased Limba is not proved. 6. Mr. Deshmukh while criticizing the judgement of the first Appellate Court, stated, the reliance to the bank passbook and the ration card by the first Appellate Court is totally wrong and the first Appellate Court also erred in treating these two documents to be the public documents. ( 5 ) 7. There are two shades to the controversy. First, placing of the documents at Exh-29 to Exh-31 by the plaintiff No. 1 in her evidence and the second shade is, the learned first Appellate Court treated the documents as public documents. For this purpose, let us revert to the evidence of Smt. Laxmibai – plaintiff No. 1 at Exh-26. In first paragraph, she has stated about her status with Limba and how she got married with Limba, as to performance of kalaspujan and garlanding her. She accepted that at the time of her marriage with Limba, defendant No. 1 – Shrimant was 11 years old. 8. The three documents (Exh-29 to Exh-31) are, namely, the ration card, issued in the name of Limba Bapu Sangle, the bank passbook (Exh-30), issued by the District Central Cooperative Bank, provided to the persons affected in earthquake who get the Government facilities, which was in the name of Smt. Laxmibai (Plaintiff No. 1) and deceased Limba with their individual photograph for identity and the voters’ list from village Inderthana showing the status of Smt. ( 6 ) Laxmibai (Plaintiff No.1) with deceased Limba and showing Laxmibai to be residing with the family of defendant No. 1 and the other defendants. The bank passbook – Exh-30 is issued on 2nd January, 1996 and it was operated jointly upto 17th September, 1997. Two entries of deposit are Government incentives and subsidies to the Earthquake affected persons. The evidence of the plaintiff No. 1, concerning Exh-29 to Exh-31, is not controverted by the defendant. There is no circumstances that these are the false and fabricated documents or that they loose its significance. Having allowed the situation to accept the documents being marked Exh-29 to Exh-31, the appellants cannot wriggle out from the solemn system of proof of documents. Consequently, the reference to section 67 of the Evidence Act will not be available to be coined as was tried to be done. The learned First Appellate Court did commit error in treating these documents as public documents. However, the fact situation, indicated, by conduct, the defendant No. 1 allowed these documents to be exhibited. As, for all the reasons, the ration card also indicated the names of the defendant, the second one was bank passbook and the electoral roll. In this ( 7 ) situation of the matter, the defendants having themselves accepted that the long drawn residence and treatment to plaintiff No. 1 as widow/wife of said Limba, they cannot now revert back to the position to challenge the status of plaintiff No. 1 Smt. Laxmibai. On this count, the second substantial question of law formulated is answered accordingly. 9. The first substantial question of law that creeps in is about the relationship of Smt. Laxmibai with deceased Limba Sangle and entitlement of Smt. Laxmibai to claim separate share in the suit property. The parties to the litigation are rustic villagers. Laxmibai having said that she married to Limba before 45 years, hence, it will be a miserable situation to expect she should adduce evidence of her marriage with Limba with precision. A stray statement from another witness that about marriage year of Laxmibai with former husband about 40 years will not change the colour and complexion as the parties being villagers, cannot be expected to remember the dates or the years. Even the parties are not in a position to state their respective ages specifically being ( 8 ) illiterate. 10. Plaintiff No. 1 – Smt. Laxmibai examined PW2 Rambhau Namdeo Deokule about her marital status. PW2 Rambhau, in unequivocal terms, elaborated as to how Smt. Laxmibai got married to Limba in “gandharva” form of marriage before 45 years at Inderthana and the performance of the ceremonies. This evidence of Rambhau is certainly in tune with what Smt. Laxmibai has narrated in her evidence about performance of ceremonies and garlanding. 11. Evidence of defendant No. 1 – Shrimant is confusing to himself and it will not be coined his contention that his father had not married to Smt. Laxmibai. He accepted that Laxmibai – plaintiff NO. 1 was residing with his father. However, he disputed that in the ration card, name of Laxmibai was shown or that in the voters’ list, name of Laxmibai was shown. It was expected of the defendant No. 1 when he tries to prevent such contingencies to place on record rebuttal evidence. The defendant No. 1 absolutely failed to rebut Laxmibai ( 9 ) is not the wife of Limba. The fidget played by Shrimant will not come to his assistance. The evidence of DW2 Radhabai on behalf of the defendant is of no avail. 12. Then comes the evidence of so called brother of Laxmibai, namely, Hariba – DW3. Mr. Deshmukh repeatedly claimed that Hariba being brother of Laxmibai has challenged the status of Laxmibai to be wife of Limba. Normally, brother would not state anything contrary to the rights of his sister/s and atleast in such controversies. However, when the evidence of Hariba is tested with other angularity, it more leans to project his adverse intent. As, Prabhavati, his sister got married to defendant No. 1 Shrimant, it is in all situation, Hariba is bound to associate in favour of defendant No. 1 Shrimant to espouse his theory. Consequently, evidence of Hariba contrary to the marital status of plaintiff No. 1, cannot be accepted. 13. The learned counsel for the appellants placed reliance on the judgement in the matter of “Keshavrao Girjuba Singare v. Chandrabhan Bhojaji Singare” (AIR 1980 ( 10 ) BOMBAY 380) and particularly to paragraph No. 7 thereof. It related to production of a letter written by Manager of District Cooperative Bank to a customer and the learned counsel representing the party desired that the letter should be treated as coming from the custody of a public officer. This Court negatived such contention. This judgement will not be applicable to the facts of present case. 14. The reliance to the judgement in the matter of “Smt. Kunti Devi and others v. Radhey Shyam” (AIR 1978 ALLAHABAD 185), concerns to proof of document. In that case, the trial Court exhibited the document and the learned Single Judge of Allahabad High Court held, mere fact that the documents are forthcoming from a Government department and bear its seal will not dispense with the necessity of formally proving those documents. As stated above, the evidence of PW1 while proving the documents was not at all challenged by the defendant No. 1 and they allowed the documents to go on record, the appellants now cannot create a rebellion situation. ( 11 ) 15. The other judgement relied on by the learned counsel, in the matter of “Surjit Kaur v. Garja Singh and others” (AIR 1994 S.C. 135) relates to the customary marriage controversy between Surjit Kaur and Garja Singh. In the said proceedings, Surjit Kaur (appellant therein) did not assert about customary form of marriage. It was not pleaded and consequently, the Apex Court did not accept the long drawn living between said Surjit Kaur with Garja Singh to be status of wife and husband. In the present case, in an unequivocal term, the plaintiff No. 1 and her witness have stated about the customary form of marriage in which Laxmibai – Plaintiff No. 1 got married to Limba by gandharva form of marriage. The long drawn association of Laxmibai in the family of Limba supported with the ration card, bank passbook and the electoral roll/voters list, elaborated her status to be the wife of deceased Limba. The first Appellate Court did not commit any mistake in reaching to the conclusion, plaintiff No. 1 – Laxmibai to be wife of Limba and her entitlement in the properties left behind by Limba. ( 12 ) 16. The substantial questions of law formulated are answered against the appellants. The second appeal is dismissed. No costs. 17. In view of dismissal of the second appeal, the civil application No. 1036/2004 does not survive and hence, stands dismissed accordingly. [ K.U. CHANDIWAL ] JUDGE NPJ/sa113-04