IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.713 OF 2007. APPEAL NO.713 OF 2007. APPEAL NO.713 OF 2007. Shri Laxman Rama Sonavane ) (since deceased) through his heir ) and legal representative: ) Shri Nandkumar Laxman Sonavane )...Appellant Versus. Parubai allegedly claiming to be wife ) of Waghu Shinde and others )...Respondents --- Shri S.R.Page for the Appellant. Shri L.S.Gaikwad for the Respondent Nos.1 and 2A. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th MARCH, 2008. : 07th MARCH, 2008. : 07th MARCH, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The present Second Appeal is preferred by the original first defendant. The first and second respondents are the original plaintiffs. The third respondent is the original second defendant. 2. The case of the original plaintiffs is that the suit property described in paragraph No.1 of the plaint was owned by one Waghu Daji Shinde. The said Waghu died on 17th March, 1969. According to the original plaintiffs the first plaintiff is the widow of the said Waghu. According to the plaintiffs the said Waghu died : 2 : 2 : 2 : without having any issue and his mother had expired long back. According to the plaintiffs the first plaintiff is the second wife of deceased Waghu. It is therefore contended that the first plaintiff became the exclusive owner of the suit property after the demise of Waghu. The second plaintiff is the real sister of deceased Waghu. A suit for declaration of ownership and injunction was filed by the plaintiffs. 3. The appellant-first defendant is the son of one Nanubai who was a sister of deceased Waghu. The second defendant is the step-brother of deceased Waghu. There was a counter claim filed by the original defendant Nos.3 and 4. The trial Court decreed the suit by declaring the first plaintiff to be the owner of the suit property by heirship and granted perpetual injunction against the appellant-first defendant. The counter claim filed by the concerned defendants was dismissed. The dismissal of the counter claim was not challenged by the concerned defendants and the present appellant-first defendant preferred an appeal before the District Court for challenging the decree of the trial Court. The Appellate Court confirmed the finding of the trial Court that the first plaintiff was a lawfully wedded wife of deceased Waghu and accordingly confirmed : 3 : 3 : 3 : the decree passed by the trial Court. 4. The submission of the learned advocate for the appellant is that the first plaintiff did not discharge the burden of proving the existence of a custom on the basis of which the said Waghu married to the first plaintiff though the first plaintiff was a niece of the said Waghu. He submitted that there was absolutely no evidence on record to show that the marriage was performed on a particular date at a particular place and the hindu religious rights and ceremonies were performed at the time of marriage. The submission of the learned advocate for the appellant is that findings recorded by the courts below are perverse. 5. I have carefully considered the submissions. I have perused the judgments of the courts below. Appellate Court accepted the case of the first plaintiff that after demise of his first wife the said Waghu married to the first plaintiff in the month of Vaishakh in the year 1940 at Bhandup, Bombay. The Appellate Court referred to the admission of the appellant-first defendant that the first plaintiff was residing with Waghu as his mistress and there was a long standing cohabitation between Waghu and first plaintiff. Apart : 4 : 4 : 4 : from the fact that the oral evidence of the appellant and the witness Shivram showed that there were large number of persons present at the time of marriage, the Appellate Court has referred to voters’ list for the period between 20th December, 1951 to 19th December, 1955 which showed the name of the first plaintiff as the wife of Waghu. In the ration card the name of the first plaintiff was shown as the widow of Waghu. The voters list of the year 1971 showed that the name of the first plaintiff was included therein as the wife of Waghu. Certain old documents executed by Waghu were produced by the first plaintiff from her custody. 6. The Appellate court noted that it was very difficult for the first plaintiff to prove the solemnisation of marriage in the year 1940 after lapse of so many years. Relying upon the decision of the Apex Court in the case of Badri Prasad Vs. Deputy Director, Consolidation (AIR 1978 Supreme Court Page 1557) the Appellate Court rightly held that if a man and woman who live as husband and wife in society are compelled to prove after a long passage time that they were validly married, very few will succeed in proving the marriage. Infact, considering the oral and documentary evidence of long standing cohabitation, the first Appellate Court : 5 : 5 : 5 : rightly held that a presumption of existence of marriage will be attracted and very strong evidence will be necessary to rebut the said presumption. 7. It is, therefore, difficult to find fault with the findings of fact recorded by the courts below holding that the first plaintiff was the widow of deceased Waghu and was the only legal representative of deceased Waghu. It must be stated here that the issue regarding existence of custom in the community does not seem to have been agitated before the first Appellate Court. Hence, there is no merit in the appeal and the same is dismissed with no orders as to costs. Judge. Judge. Judge.