1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 61 OF 1993 Janardhan s/o Yeshwant Wakure aged 57 years, occ. agriculture r/o Ramwadi, Tq. & Dist. Osmanabad. .. APPELLANT VERSUS Champabai w/o Rangnath Wakure aged 52 years, occ. household r/o Ramwadi, now residing at village Tavraskheda, Tq. & Dist. Osmanabad. .. RESPONDENTS Shri S.S. Choudhari, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 2 nd September, 2009 ORAL JUDGMENT : 1 Heard Shri Choudhari, learned counsel for the appellant. None appears for the respondents. 2 Appeal is presented raising exception to the concurrent judgments recorded by the courts below. Respondent / original plaintiff instituted Regular Civil Suit no. 78/1981 claiming partition and separate possession of ancestral property. Plaintiff is the wife of deceased Rangnath who was 2 brother of appellant / original defendant Janardhan. It is the contention of the plaintiff that her marriage with Rangnath was solemnised some 20 years back. Plaintiff gave birth to a child who died within 17 days after birth. Thereafter Rangnath died some 18 years back prior to presentation of the plaint. It is the contention of the plaintiff that she was residing with defendant until the death of Rangnath. Name of deceased Rangnath was also recorded in respect of ancestral property and same situation is continued till 964-1965 even after his death. Defendant after demise of Rangnath, managed to get her name recorded in revenue record. Plaintiff had left house of defendant for Diwali festival in the year 1980 and had been to her parents. However, after she returned back, she was not allowed to enter the house. Thus, plaintiff contends that she is ousted from enjoyment of the joint ancestral property. Plaintiff claims that she is entitled to have half share in the property and as such has knocked the doors of the court. 3 Defendant appeared and resisted the suit by filing written statement. Defendant has admitted the relationship. However, it is the contention of the defendant that Rangnath died some three years after marriage. It is the case of the defendant that death of Rangnath occurred prior to 1954. Thus, according to defendant, plaintiff is not entitled to have share in the 3 ancestral property as the date of death of her husband falls prior to 1954. Rest of the adverse contentions raised in the plaint have been controverted by defendant. 4 Trial court on the basis of pleadings framed issues and after recording evidence lead by the parties proceeded to decree the suit. So far as the aspect in respect of ancestral nature of the property is concerned, trial court as well as the first appellate court are concurrent in recording finding that that the suit property is ancestral one. However, so far as the date of death of husband of plaintiff is concerned, the courts below have accepted the version of the plaintiff that death of her husband occurred after 1954 and as such plaintiff is entitled to have share in the property. 5 At the stage of admission of the appeal this court recorded that grounds noted in paragraph nos. II, III, IV, V and VII involve substantial questions of law. The only question pressed for determination is as to whether the plaintiff has established that her husband died after coming into force Hindu Succession Act, 1956 or after the provisions of Hindu Women Rights to Property Act, 1937 were made applicable to the region entitling her to have share in the ancestral property. 4 6 In order to substantiate the case, plaintiff has relied upon her testimony. Plaintiff did not produce any documentary evidence to prove the date of death of her husband. Defendant has examined himself and has lead oral evidence of witness on his behalf. Considering the evidence placed on record trial court is not definite so far as the date of death of deceased husband of plaintiff is concerned. However, according to the trial court, even if it is assumed that deceased Rangnath died 30 years prior as contended by defendant, in view of provisions of Hindu Women Rights to Property Act, 1937, plaintiff is entitled to have share in the property. Trial court has proceeded on a footing that Hindu Women Rights to Property Act, 1937 entitles a Hindu widow to have limited right in respect of the property and the limited right acquired by female Hindu gets converted into full ownership by virtue of provisions of Hindu Succession Act. Trial court thus has decreed the suit presented by the plaintiff. Trial court has obviously overlooked the fact that the provisions of Hindu Women Rights to Property Act were made applicable to the region which was earstwhile part of the State of Hyderabad in the year 1954 only. Therefore unless positive finding is recorded that death of husband of plaintiff occurred after 1954 i.e. after application of the provisions of Hindu Women Rights to Property Act to the 5 earstwhile part of the State of Hyderabad, it cannot be said that the Hindu woman i.e. plaintiff in the instant case would be entitled to have share in the property. Trial court thus has proceeded on the wrong footing and thus reasons recorded by the trial court are not sustainable. 7 So far as the first appellate court is concerned, the court has placed reliance on the copy of certificate dt. 26-11-1983 issued by the Police Sub- Inspector, Dhoki police station which was produced on record at appellate stage. According to appellant before the first appellate court i.e. original plaintiff, the certificate was applied for on 18-11-1982 and the same was received by the plaintiff on 26-11-1983. However, there are no reasons recorded as to why no efforts were made for securing the certificate earlier i.e. during the pendency of the suit. Even after considering the certificate placed on record by the plaintiff, it cannot be said that the case put up by the plaintiff in respect of date of death of her husband is substantiated. Inspite of making efforts for production of the original record in possession of the police authority, the same could not be made available, as according to the police officials the same was destroyed. It has not been demonstrated as to on what basis the certificate dt. 26-11-1982 came to be issued by the police authority. In the absence of production of the original 6 document certificate produced at the appellate stage cannot be taken into account. Plaintiff has lead evidence of doctor who is stated to have conducted post mortem on the corps of deceased Rangnath. However, the doctor has admitted that record in respect of post mortem examination of deceased Rangnath is not available with the Primary Health Center. Thus, evidence placed on record by the plaintiff before the appellate court is not of any help. The first appellate court has committed serious error in placing reliance on the certificate produced at appellate stage. It cannot be said that the documentary evidence in the form of certificate is proved in accordance with the provisions of Evidence Act. Thus, the picture that emerges is that there is no evidence to reach the conclusion that the death of husband of plaintiff occurred either after 1954 or in the year 1956. The plaintiff has come to the court with a specific case that her husband has died after coming into force Hindu Succession Act which fact has been controverted by defendant. It is the responsibility of the plaintiff to establish her contention as regards the date of death of her husband. As the plaintiff has failed to establish her contention, she is not likely to succeed in the suit. Thus, the view adopted by both the courts below is erroneous. Appreciation of evidence by the first appellate court is improper. Thus, appeal presented by the defendant needs to be allowed and the same is accordingly 7 allowed. Judgment and decree passed by the trial court in Regular Civil Suit no. 78/1981 on 25-11-1983 confirmed in Regular Civil Appeal no. 28/1984 by the District Judge, Osmanabad on30-12-1992 is quashed and set aside. Appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/sa61.93.odt