: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.108 OF 1990 Shri Anna Shanta Nirwane ... Appellant V/s. Smt.Kamal Anna Patil ... Respondent a/w SECOND APPEAL NO.58 OF 1990 Shri Anna Shanta Nirwane ... Appellant V/s. Smt.Kamal Devappa Chavan ... Respondent Mr.T.S. Ingale for Appellant None for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: 20th JULY, 2009 ORAL JUDGMENT: 1. The substantial question of law involved in these two second appeals is as follows: Whether a presumption can be drawn about the existence of a marriage only on the basis of oral evidence which has been rebutted? Whether under the Hindu Law this presumption of marriage is sustainable despite documentary evidence to the contrary being on record? 2. The facts giving rise to the present appeals are as follows: The dispute in the present appeals relates to CTS No.390A. One Anna Patil and : 2 : Babu Patil, his brother, were co-owners of the aforesaid suit property. Anna Patil died in 1964 and Babu then became the owner of the entire property as his successor. Babu’s name was entered into the city survey record for the entire house in 1969, after an enquiry was conducted. In 1973, Babu expired leaving behind his widow Champabai as his legal heir and representative. Her name was entered into the city survey record in respect of the suit property. Champabai then executed a registered sale deed in favour of the appellant on 7.10.1976 for the entire suit property. According to the appellant one Akkatai Dhanapal Patil who claimed to be the sister of Anna and Babu, entered into the suit property forcibly in May 1977 alongwith one Kamal Devappa Chavan. Kamal then started occupying one room in the premises, claiming to be the widow of the deceased Anna. The appellant, therefore, filed a suit for possession being RCS No.412 of 1978 against Kamal. The suit was contested by Kamal by contending that Champabai had no right to sell the property as she (Kamal) was the wife of Anna Patil, who had expired and therefore she had half a share in the suit property. 3. Six years later Kamal also filed a suit, being RCS No.58 of 1984 against the appellant and Champabai. This suit was filed for a declaration that she had half the share in the suit property and for separate possession. Her suit was based on her contention that she was the wife of Anna. She claimed that she was unaware of the fact that Babu had his name mutated in the city survey of records as the owner of the entire suit property and that it was only after she obtained knowledge of this fact that she was able to file the suit. She also claimed that the sale deed entered into between Champabai and the appellant herein was bogus and therefore not binding on her. The appellant who was defendant No.1 in the suit and defendant No.2 : 3 : Champabai contested the suit by contending that Anna had never married and therefore, Kamal could not be his wife. They contended that her occupation of the suit property was illegal. 4. Evidence was led before the trial Court. The appellant produced several documents indicating that Kamal’s name did not figure either in the voters’ list for the area where the suit property was situated or in the assessment list of the suit property for the years 1964-1964, 1968-1969, 1972-1973, 1976-1977. The appellant also produced on record at exhibits 68 and 69 the voters’ list of the Sangli assembly constituency for village Samdoli in which Kamal’s name was included as Kamal Devappa Chavan. The certified copy of the application submitted by Dhanapal Devappa Chavan the brother of Kamal to the Revenue Officer of village Samdoli for obtaining the ration card for the family was also exhibited. One of the members of the family in this application was shown as Kamal Devappa Chavan. Oral evidence of various persons including Kamal, one Appu Nana Akkatai, who claimed to be the sister of Anna and Babu, Champabai, the mother of Kamal and one other witness was led for proving that Kamal resided in the suit property since 1962. The appellant was also examined. 5. The trial Court has held that the marriage between Kamal and Anna had not been proved and therefore, she had no right to the suit property. The trial Court held that the appellant was the exclusive owner of the suit property, having purchased it from Champabai who in turn inherited it from her husband Babu and therefore was the owner of the entire suit property. : 4 : 6. Thus, the suit of the appellant was decreed in his favour while Kamal’s suit was dismissed. Being aggrieved by the decision of the trial Court, Kamal, the respondent herein, filed the appeals before the appellate Court i.e. III District Judge, Sangli. Both the appeals were heard together and the appellate Court reversed the findings of the trial Court. The appellate Court held that Kamal had proved that she was wedded to Anna and that she had lived with him for two years after her marriage till he expired. The appellate Court held that it was proved that the marriage yadi was prepared and that the same was with Kamal’s brother till it was lost. The Appellate Court therefore concluded that there is a presumption that since Kamal was residing with Anna, she was his wife. Reliance is placed on the judgment of this Court in 1986 Mh.L.J. 186. In these circumstances, it was held that the appellant was required to prove that there was no relationship between Anna and Kamal as man and wife. It was further held that the application for including Kamal’s name in the ration card was not genuine. The appellate Court then found that there was a possibility that Kamal could have resided in the suit premises for some days after the death of her husband and would obviously have left for her parents’ house thereafter and it is for these reasons that her name appeared in the electoral roll between 1971 to 1975 in the Sangli Constituency for Samdoli village. The Court has further observed that the respondent’s right to the suit property as the widow of Anna was not abrogated merely because she had not applied to the city survey officer to enter her name into the records as the wife of Anna. It appears that Kamal had been recognised as the wife of Anna by the Bank where Anna had his account as well as the Estate Duty officer since she had obtained an estate duty clearance certificate. Notices had been issued by her to the tenants of the suit property requesting them not to pay rent to the appellant herein. Taking into account these factors, the appellate Court allowed the : 5 : appeals filed by the respondents and set aside the judgment of the trial Court in both RCS No.412 of 1978 as well as 58 of 1984. The appellate Court has also observed that the sale deed executed by the appellant and defendant No.2 i.e. Champabai was not binding on the respondent. It was observed that Champabai had no other property except the suit property and, tehrefore, she had no legal necessity to dispose of the suit property. 7. Mr.Ingale appearing for the Appellant in both the Appeals submits that the appellate Court has proceeded on conjectures and surmises while concluding that the respondent was married to Anna in 1964. He submits that although a man and woman who live together as man and wife can be presumed to be married, it is a rebuttable presumption. He urges that since the appellant has been able to prove by documentary evidence on record that the respondent was not living with Anna at any point of time, the question of him having married her does not arise. He relies on the judgment of the Supreme Court in the case of Gokal Chand v/s. Parvin Kumari, AIR 1952 SC 231. He points out that the appellate Court has not considered the necessary material on record while concluding that the appellant was not the owner of the suit property. The learned advocate further submits that when there is no documentary evidence whatsoever with respect to the marriage which allegedly took place between Anna and the respondent in 1962, no presumption can be raised about their marital status. 8. A perusal of the judgments of the lower Courts indicates that the appellant had relied on the assessment list of the suit properties produced at exhibits 61, 62 and 63. These assessment lists were for different years ranging from 1964-1965, : 6 : 1976-1977. The trial Court has noted that the respondent’s name does not figure as the occupant of the suit property at any point of time in any records and, therefore, has held that it was not possible to accept her version that she was married to Anna. The trial Court has also accepted the exhibits 68 and 69 which were copies of the voters’ list produced for the Sangli Assembly Constituency for village Samdoli. The respondent’s name was shown as Kamal Devappa Chavan for the years between 1975 to 1977. On this basis, the trial Court held that the presumption of the marriage between Anna and the respondent was rebutted and that the respondent had not been able to establish that she was married to Anna at any point of time. In my opinion, the appellate Court has not given any cogent reasons for not accepting this finding of the trial Court. The appellate Court has instead placed the onus on the appellant to prove that the respondent was not the wife of Anna. There was no positive evidence on record showing that the respondent was in fact married to Anna and therefore she had a right to the property. The documentary evidence indicated that she was living elsewhere and not in the suit property. In these circumstances, in my opinion, the onus placed by the appellate Court on the appellant to prove that there was no relationship between Anna and the respondent is incorrect. The judgment and order of the appellate Court proceeds on the surmise that it is highly impossible that the respondent would suddenly make out a false case of marriage between herself and Anna. The documents relied on by the respondents to prove her marriage are the estate duty clearance certificate and the correspondence with the Bank in which Anna had a bank account. In my opinion, these documents would not in any manner substantiate the respondent’s claim that she was the wife of Anna. The appellate Court has then relied on exhibits 37 and 38 in which the name of the respondent is shown in the electoral roll of Sangli Constituency for the year 1977. He : 7 : was impressed by the fact that the name of one Champabai also figured in that list. However, it appears that the property in respect of which the electoral rolls have been produced is some other property and not the suit property. Champabai is also the name of the respondent’s mother. These facts have been completely ignored by the appellate Court. 9. The Supreme Court in the case of Gokal Chand (supra) has held that continuous cohabitation of a man and woman as husband and wife for many years may raise the presumption of a marriage. But his presumption drawn from long cohabitation is a rebuttable presumption and if there are circumstances which weaken or destroy such a presumption, the Court cannot ignore it. Even assuming that Anna and the respondent were living together for some time, there is no material at all on record to indicate that they were married. In fact, the evidence suggests otherwise. 10. Therefore, in my opinion, the appellate Court erred in reversing the orders of the trial Court. The appeals are, therefore, allowed. No costs.