SHANTINATH RAMU DANOLE AND ANR.

A v.

JAMBU RAMU DANOLE AND ORS.

NOVEMBER 5, 1996

[N.P. SINGH AND FAIZAN UDDIN, JJ.] B

Ancestral property -partition-Claim by plaintiffs as widow and legitimate son of deceased depending on proof of factum of marriage-For the purpose, Testimony of witnesses being friends and relatives, a relevant factor to be considered-Also evidence of a co-villager who has the means of special knowledge on the subject of that relationship is relevant. On C facts, factum of marriage proved and plaintiffs entitled to their share in the property.

Evidence Act, 1872 :

S.50 and 51-Factum of marriage-Proof of-Evidence of friends and co-villages, who have means of special knowledge-Held, is relevant.

A suit was filed by H and S for separate possession of their twothird share in the suit property by partition. The suit property was E the ancestral property of R, and J, the Respondent-Defendant No.I was the son of R from his first wife. It was alleged by the plaintiffs that S was the legitimate son of R as R had married H after the death of his first wife butthat she was turned out of his house due to disputes between them and that at that time she was pregnant. On the other hand, the factum of marriage was denied by J and he claimed to be F the sole heir of his father's property. The fact of sale of land by J to Defendant No.2 for the purpose of repayment of debts of his father who had taken loan from the Bank, the Defendant No.3 was admitted by him. On evaluation of oral and documentary evidence, the Trial Court decreed in favour of the plaintiffs. However the First G Appellate Court reversed the judgment of the Trial Court which was upheld by the High Court in Second Appeal by dismissing the same in limine.

Allowing the appeal and restoring the Trial Court judgment with a slight modification, this Court H 479

A HELD : 1.1. The Testimony of Pws 1 and 2 corroboratir.g the fact that marriage had taken place between R and H has been rightly accepted by the Trial Court. [483-F]

1.2. As a marriage is only attended by relatives and friends, the evidence of the aforesaid witnesses cannot be rejected merely on the B ground that they are relatives and friends unless their testimony suffers from some inherent infirmity. [483 FG]

2.1. Where the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of C knowledge on the subject of that relationship is a relevant fact.

[484 E-F]

2.2. Evidence of PW. 3, a co-villager of the plaintiffs, which was based on his observations is relevant in view of Sections 50 and 51 of the Evidence Act. [483H, 484 DJ

Dolgovinda v. Nimai Charan, AIR (1959) SC 914, relied on.

3. The production of voters list and the eviden.ce of plaintiffs clearly established the fact that the deceased H and R were liv"ing as husband and wife raising a strong presumption that they were so E married. [485 B-D]

4.1. As was agreed to by Plaintiff No.I both S and J, would each be entitled to a half share in the suit property and S would be entitled for separation of his half share in property by partition. [485-FJ

4.2. Both S and J would be liable proportionately for the repayment of debts due to the Bank, i.e. Respondent/Defendant No.3.

[485 FJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2703 of

G 1984.

From the Judgment and Order dated 3.7.81 of the Bombay High Court in S.A. No. 340 of 1981.

V.N. Ganpule, Ms. Madhur Dadlani and Ms. VD. Khanna for the H Appellants.

S.R. DAN OLE v. J.R. DANO LE [FAJZAN UDDIN, J.] 481

M.S. Nargolkar and D.M. Nargolkar for the Respondents.

The Judgment of the Court was delivered by

FAIZAN UDDIN, J. I. This appeal by the plaintiffs has been directed against the judgment of the High Court of Bombay affirming

the judgment and decree passed by the first appellate Court reversing the B judgment and decree passed by the Trial Court whereby the plaintiffs suit for partition and separate possession of their 2/3rd share was decreed.

2. The appellant Shantinath Ramu Danole and his mother Housabai (since deceased) filed the suit against the defendant-respondent for separate possession of their 2/3rd share in the suit property by partition. The plaintiff C No. I Shantinath Ramu Danole claimed to be the son of deceased Rarnubabu Danole and plaintiff No.2 (mother of plaintiff No. I) deceased Housabai claimed to be his widow. The defendant-respondetn is the son of deceased Rarnubabu from his first wife Rajubai. The plaintiffs pleaded that the suit properties were ancestral properties of deceased Rarnubabu Danole who died on December 20, 1973, his first wife having died earlier when the D defendant-respondent was aged about one year only. After the death of his first wife Rajubai, deceased Ramubabu Danole married Smt. Housabai, the mother of the appellant about 35 to 40 years ago from the date of filing the Suit. It was alleged that when Housabai was pregnant she was turned out of his house by Ramubabu Danole and she was forced to live with her parents at Upalal. The plaintiffs claimed that they had 2/3rd E share in the ancestral properly left behind by the deceased Ramubabu Dano le. It was alleged that since the defendant-respondent No. I claimed to be the exclusive heir of deceased Rarnubabu and denied any share to the plaintiffs in the suit property they filed the suit for possession of their 2/ 3rd share in the same by partition. The plaintiffs also alleged that during F the pendency of the suit the respondent had sold the land bearing Gat No. 461 to the defenr\ent/respondent No.2 on 7.1.1977 which is not binding on them. It was also alleged by the plaintiffs that the defendant No. I abo created some incumberance of defendant/respondent No.3 on the property for which the respondent No. I alone was liable. The defendant No. I resisted the suit filed by the plaintiffs by pleading that the plaintiffs-appellant G No. I was not the son of deceased Ramubabu nor the plaintiffNo.2 Housabai (since deceased) was the wife of deceased Ramubabu as he had never married Housabai. The defendant No. I claimed to be the only son of deceased Rarnubabu to be the exclusive owner of the suit property. The defendant No. I admitted that he had sold Gat No.461 to defendant No.2 for the purpose of repaying the debts of his father and that the deceased H

A Ramubabu had also taken loan from the Bank-defendant No.3 for construction of a well which had to be repaid. He also took the plea that out of the consideration received from the defendant No.2 he had repaid the debts of his father. The defedant No.2 in his separate written statement took the plea that the defendant No. I is the exclusive owner of the suit property and that he was purchaser from him for value without any B knowledge about the pendency of this suit. The defendant No.3 in its written statement took the plea that the deceased Ramubabu had taken Joan of Rs. 5000 from the Loan Development Bank after mortgaging his said Gat Nos. 655 and 659 as security for repayment of the loan.

3. On evaluation of the oral and documentary evidence on record C the Trial Court recorded the finding that the plaintiffs have proved the factum of marriage of deceased Housabai, plaintiff No.2 with deceased Ramubabu Dano le and the plaintiff-appellant No. I was born out of the said wedlock. The Trial Court also recorded the finding that it was not established that the defendant No.2 was a bonatide purchaser of the said Ga! No.461 and that the said sale was not binding on the plaitniffs. It was D also held that since the lands bearing Gat Nos. 655 and 659 were mortgaged by the deceased Ramababu Danole himself to the defendant No. 3 and obtained a loan of Rs.5000 for digging the well, the plaintiffs should bear the proportionate share for repayment. of the loan amount due to the defendant No.3. The Trial Court having found the said property as the ancestral property in which the plaintiffs had 2/3rd share and, therefore, E on the aforesaid findings passed a decree in favour of the plaintiffs for possession of2/3rd share by partition against the defendant No. I. However, on appeal by the defendant-respondent No.I, the first appellate Court set aside the judgment and decree passed by the Trial Court holding that it was not established that the deceased plaintiff No.2 Sm!. Housabai was wedded to the deceased Ramubabu Danole and that the plaintiff No.I was F born out of that wedlock. This judgment of the first appellate Court was upheld by the High Court in Second Appeal by dismissing the.same in limine against which this appeal by special leave has been directed.

4. Learned counsel appearing for the plaintiffs strenuously urged G that the first appellate Court and the High Court gravely erred in setting aside a well considered judgment and findings recorded by the Trial Court.

It was submitted that the appellate Court misappreciated the documentary as well as oral evidence with regard to factum of marriage of Smt. Housabai with the deceased Ramubabu Danole. Learned counsel urged that the evidence on record sufficiently established the marriage of Sm!. Housabai H with Ramubabu Danole but this appellate Court not only fell into error in

S.R. DANOLE v. J.R. DAN OLE [I' AIZAN UDDIN, J.] 483

rejecting the oral evidence as interested evidence but also failed to take A

int~ consideration the presumption of valid marriage of deceased Housabai with deceased Ramubabu in the facts and circumstances of the present case. Having heard the learned counsel for parties at length and on perusal of the oral and documentary evidence on record, we find that there is merit in the aforementioned •ubmissions made by the learned counsel for the appellants.

5. The plaintiffs had examined five witnesses to prove the marriage of Housabai with Ramu Dano le. Rangnath, PW I is the brother of deceased Housabai who deposed that the marriage of Housabai with Ramu Danole took place 40 years before. He was examined as a witness and that the plaintiff No. I Shantinath was the son of plaintiff No.2 born from Ramu C Danole. He stated that the marriage was performed in his presence at Jainwadi in Pandharpur Taluka which was attended to by his father and 4- 5 other persons of the village. He stated that Adinath Khamgaonkar, PW- 2 was also present at the time of said marriage. He further deposed that about 1-1/2 yeat after the marriage there was dispute between Housabai and her husband Ramubabu whereafter his deceased sister Housabai lived D with him. He also stated that at that time Housabai was pregnant when she came to his house and two months thereafter plaintiff appellant No. I was born at Barshi. Adinath Khamgaonkar, PW 2 is also a relative of the plaintiffs. He deposed that plaintiffs No.2 Housabai was married to Ramu Dano le at Jainwadi 40 years back and that he had attended the said marriage.

He stated that Housabai lived with her husband Ramu for about 1-1 /2 E years and thereafter she came to her parents house when she was pregnant.

He also stated that the plaintiff No. I is the son of Housabai from her husband Ramu Danole. Nothing could be elicited from these witnesses in cross-examination to discredit their testimony. Their testimony was rightly accepted by the Trial Court but unreasonably rejected by the appellate F Court merely on the ground that they were relatives. It may be pointed out that marriage is attended only by the relatives and friends. The evidence of such relative and friends could not be thrown out only because they happened to relatives and friends unless their testimony suffers from some inherent infirmity which is not to be found in the evidence of these two witnesses.

6. Shankar, PW 3 is a co-villager of the plaintiffs. Although he is not a witness to the said marriage out he categorically expressed his opinion as to the relationship of deceased Housabai with deceased Ramu Danole on the basis of his own observations. He deposed that the plaintiff No. I is

a son of Ramu and the plaintiff No.2 deceased Housabai was the wife of H

A Ramu and that defendant No. I is also his son. He stated that after the celebration of marriage ofHousabai with Ramu about 40 to 42 years back at Jainwadi Housabai resided at Jainwadi for about 1-l/2 years in the house of deceased Ramu as his wife. He further stated that after 1-1/2 years Housabai went to her parents house when she was pregnant. In crossexamination he stated that he had also seen Housabai alongwith her child B in the village but Ramu did not allow her to reside with him. Shankar,

PW3 further deposed that there is a temple in the village belonging to his community in which there is a Committee which maintains a Register in respect of birth, death and marriage of persons belonging to Jain Community.The said Register used to be in the custody of the President and the Priest. The evidence of this witness has been rejected by the appellate C Court on flimpsy ground. The appellate Court took the view that the Register maintained by the temple which records the marriage of persons belonging to Jain Community was not produced there being absolutely no evidence to the effect that the marriage ofHousabai with Ramu Danole was recorded in the said Register.

7. The evidence given by the witness Shankar, PW 3 is relevant in view of the provisions contained in Sections 50 and 51 of the Evidence Act. The said witness deposed the facts observed by him and the opinion that he had formed on.the basis of such observations. The evidence of general reputation for purpose of proof or disproof of a marriage is E admissible. This is apparent from the illustration given in Section 50 itself of the Evidence Act. A reference may also be made with advantage of a decision of this Court in the case of Dolgovinda v. Nimai Charan, AIR

(1959) SC 914 wherein it has been held that under Section 50 when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship F of any person who has special means of knowledge on the subject of that relationship is a relevant fact. In the present case before us, the witness Shankar, PW 3 is a person belonging to the community to which the deceased Housabai and Ramu Danole belonged to and is also a resident of the same village where the couple lived together as husband and wife and G thus had the means of special knowledge of the relationship between them.

8. Apart from the evidence discussed above, the plaintiff No. I Shantinath also appeared as PW 4 who deposed that Ramubabu was his father and that defendant No. I is his step brother. He testified the extract of Birth Register, Ext. 72 and stated that he was called Shatinath since his H childhood. He stated that in the Birth Register, Ext. 72 his name was

S.R. DANOLE v. J.R. DANOLE [FAIZAN UDDIN, J.] 485

previously entered as Kantilal and the name of his grand father was entered A as Babu which were incorrect and, therefore, the same were corrected.

Housabai, plaintiff No.2 was also examined as PW.5. She deposed that she was married to Ramu 40 years back at Jain wadi in the presence of her brother Rangnath, PW I and her father who is dead. After her marriage she lived with her husband for about 1-1/2 year and as her husband used to quarrel and developed illicit connections she was forced to leave his house B and live with her parents. She also stated that she was pregnant when she left for her parents house and delivered plaintiff No.I at Barshi. Besides the oral evidence the plaintiffs also produced the Voter List for the election held in the year 1972 in which the name of the plaintiffs find place and deceased Ramubabu has been shown to be the father and husband of the respondent Nol and 2 respectively which was never objected to by the C deceased Ramu Danole who died in 1973. From this evidence on record it is clearly established that the deceased Housabai and deceased Ramu Danole were living as husband and wife raising a strong presumption that they were so married. There were hardly any cogent reasons for the appellate Court to disturb the well reasoned findings recorded by the Trial Court.

Consequently, the judgments of the appellate Court and the High Court D deserve to be set aside.

9. However, inspite of all this, on our suggestion learned counsel for the appellant agreed for half share instead of 2/3rd share. We find it to be a just and proper, more so when the plaintiff appellant No.2 Smt. Housabai E is also dead. We, therefore, set aside the judgment and decree passed by the first appellate Court and the High Court and restore the judgment and decree passed by the Trial Court with the modification that the surviving plaintiffNo. l Shantinath and the defendant-respondent No. I Jambu Ramu Danole would be entitled to half and half share in the suit property and the plaintiff-appellant would be entitled for separation of his half share in F the property by partition and that the plaintiff and respondent both would be liable proportionately for the repayment of the debts due to respondent No.3. No order as to costs.

R.D.

Appeal allowed. G