1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 372/2005 (Shridhar Dada Jumle & anr. Vs. Bala Sonba Jumle & 4 ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. O.W. Gupta, Adv. for the appellants. Mrs. Prabhu h/f Mr. Parchure, Adv. for R- 1 to 5. CORAM : Smt. Vasanti A. Naik, J. DATED : 11 th September, 2007. Heard the learned counsel for the parties. The appellants are the original plaintiffs. A suit was filed by the plaintiffs Wanchala and Shridhar against the defendants for partition and separate possession of their shares in the suit property. It was the case of the plaintiffs that plaintiff Wanchala was the first wife of Dada Jumle and plaintiff Shridhar was son of Dada Jumle. It was pleaded by the plaintiffs that the defendant no.1- Bala was the father of Dada Jumle and defendant no.2-Waman was the brother of Dada Jumle. Similarly, the defendant no.5-Suman was the second wife of Dada Jumle to whom he had married after he divorced his first wife Wanchala, and the defendant nos. 3 and 5 are the sons of Suman and Dada Jumle. According to the plaintiffs, they were entitled to partition and separate possession of the 2 properties belonging to the joint family of Dada Jumle, Bala and Waman. The defendants denied the claim of the plaintiffs. It was admitted by the defendants that Wanchala was divorced by Dada Jumle during his life time and was living separately since the execution of the divorce deed. It was, however, pleaded by the defendants that Shridhar was not the son of Dada Jumle and was not entitled to claim partition and separate possession of his share in the properties belonging to Bala, Waman and Dada Jumle. It was, in fact, pleaded by the defendants that Bala Jumle, the father of Dada Jumle, was the exclusive owner of the suit property and he had a right to deal with his property in any manner whatsoever. The defendants sought for dismissal of the suit. The trial Court, after considering the evidence tendered by the parties on record held that Shridhar was not the son of Dada Jumle. The trial Court, however, held that Wanchala was the widow of Dada Jumle and the divorce deed executed between the parties could not have resulted into the dissolution of marriage between Wanchala and Dada as the defendants have failed to prove that there was a custom in the community to dissolve the marriage by execution of the Sodchitthi (Divorce Deed). The trial Court consequently held that 3 Wanchala was entitled to separate share in the suit property as the properties were joint family properties. The first appellate Court, however, reversed certain findings recorded by the trial Court. The first appellate Court confirmed the finding of the trial Court so far as it held that Shridhar was not the son of Dada Jumle. The first appellate Court held that it was admitted by plaintiff Wanchala that she was divorced wife of Dada Jumle and in view of the aforesaid admission which was found at various stages of the suit, the trial Court had erred in granting a decree in favour of Wanchala. The appellate Court, therefore, reversed the findings recorded by the trial Court so far as they resulted in a decree in favour of Wanchala. The first appellate Court dismissed the suit in its entirety. Shri O.W. Gupta, the learned counsel for the appellants/plaintiffs, submitted that the first appellate Court was not justified in reversing the findings recored in favour of Wanchala as the defendants had utterly failed to prove the custom in the community to dissolve the marriage by execution of the deed of divorce. It was submitted on behalf of the appellants that after coming into force of the Hindu Marriage Act in the year 1956, the marriage between the parties could not have 4 been dissolved by divorce deed unless it was proved by the parties who rely upon the divorce deed, that there was a custom in the community to seek dissolution of marriage by execution of a divorce deed. Mrs. Prabhu, the learned counsel for the respondents, supported the judgment passed by the trial as well as the first appellate Court. She submitted that there was no necessity whatsoever for the defendants to have proved the custom in the community of the parties as plaintiff Wanchala had herself admitted that the marriage between Wanchala and Dada Jumle was dissolved by divorce deed and she was residing separately after the execution of the divorce deed. I have perused the pleadings of the parties as also the evidence tendered by the parties on record. I have also perused the judgment passed by both the Courts. A perusal of the plaint shows that the plaintiffs have themselves pleaded in the plaint that Wanchala was the wife of Dada Jumle and a divorce deed was executed between Wanchala and Dada Jumle dissolving the marriage between the parties and the plaintiff no.1-Shridhar was born exactly 277 days after the divorce. The appellate Court considered the fact that after the execution of the divorce deed and even prior to the execution of the same, Wanchala was residing with 5 her parents. The notice which was issued by Wanchala to Dada Jumle informing him about the birth of Shridhar, clearly mentioned that the divorce deed was executed by the parties in view of the custom (Jagrudhi). The appellate Court further appreciated that the plaintiff was divorced by Dada Jumle on 27/4/1978, which was almost 16 years prior to the institution of the suit, and she had admitted in her evidence that she was staying separately since the year 1978 and had not filed any proceeding against Dada for seeking a declaration that the divorce deed dated 27/4/1978 was not valid. Even in her deposition, Wanchala admitted that she was divorced by Dada Jumle in presence of panchas and he gave her certain amount and a gold ring and watch which was accepted by her. In view of the clear statement in the notice issued by Wanchala to Dada that the divorce was as per the custom or `Jagrudhi', it was not necessary for the defendants to strictly prove that there was a custom in the community of the parties to dissolve the marriage by Sodchitthi or a divorce deed. The first appellate Court has rightly appreciated the material evidence tendered by the parties on record to reverse the findings recorded by the trial Court as the trial Court had failed to consider the material admission of Wanchala in her 6 cross-examination as also in the notice issued by Wanchala to Dada, wherein she had clearly admitted that the divorce was in accordance with the Jagrudhi (custom). The findings recorded by the first appellate Court are pure findings of facts which do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no orders as to costs. JUDGE RMP