Bhilaji Bandu Sutar & Lohar vs Rangarao Shankar Sutar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 2106

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K. K. TATED, J.
Bhilaji Bandu Sutar & Lohar – Appellant
Vs.
Rangarao Shankar Sutar & Ors. – Respondent
Second Appeal No.364 of 1992 with Cross-Objections (St). No.18331 of 1992.
Decided On : 8th December, 2014.

Advocates Appeared:
Mr. V.S. GOKHALE, Adv. for the Appellant.
Mr. RAHULP. WALWEKAR, Adv. for Respondent nos.1, 2, 3(A) to 3(D), 3(F) and 4(A) to 4(D).

Headnote:Hindu Marriage Act, 1955 - Section 7 Evidence Act, 1872, Sections 35 and 115 Presumption as to marriage. Since name of defendant is described in voters list and ration card prepared during life time of deceased, father of plaintiffs, as wife of deceased hence defendant is legally wedded wife of deceased. The dispute is whether ’M’ was the wedded wife of ’S’ or she was the kept mistress of deceased ’S’. According to the plaintiff,s he was kept mistress of ’S’ and according to the defendants she was wedded second wife of de ceased ’S’ after the death of first wife ’A’. When ’S’ resided at Bambawade she was residing with ’S’ from about 1954-55 till his death on 3.6.1977. Her name was entered in the Ration Card and Voters List as wife of ’S’. ’S’ had purchased open plot at Bambawade and built two houses bearing Grampanchayat House No. 25 and 26. House No. 25 is the house in dispute. In the house 26 plaintiff No. 1 resided separately from his father. Now the first question to be decided is whether the defendant No. 1 is the wedded second wife of deceased ’S’ or she is the kept mistress of ’S’. There is no oral evidence on this point except that of plaintiff No. 1. Plaintiff No. 1 as PW No. 1 denies that the defendant No. 1 is legally wedded wife. Plaintiff No. 1 is interested in denying her status as legally wedded wife. The voters list of Bambawade, the Ration Card of ’S’ at Bambawade are pressed as the most reliable evidence as in both of them she has been described as the wife of ’S’. After the death of ’S’ the name of defendant No. 1 is entered in the GP of Bambawade as owner of the suit house being wife of ’S’. The voters’ list and Ration Card were prepared during the life time of ’S’ and to his knowledge the defendant No. 1 has been shown as wife and the entry in the GP Bambawade of the suit house as house of defendant No. 1. The above public documents fully support the cae of defendant No. 1 that she is the wedded wife of ’S’. It is to be noted that the electoral roll is a public document and is prepared by a public servant in discharge of his public duty and the same is relevant under Section 35 of the Evidence Act.
Hindu Succession Act, 1956 - Section 22 Right of pre-emption. Where defendant - 1, second wife of deceased, sold property to defendant-2 therefore plaintiff’s children from first wife not entitled to right under Section 22 of Act. In the present case, it is the case of the plaintiff that the suit property was sold by defendant No. 1 in favour of defendant No. 2 which is not class I heir. Therefore, the appellate Court rightly decided point No. 7 holding that plaintiffs are not entitled to the right under Section 22 of the Hindu Succession Act. High Court does not find any error in the said findings.

JUDGMENT :

Heard the learned counsel for the parties.

2. For the sake of convenience, the nomenclature of the parties as is stated in the suit will be referred to hereinafter as the appellant / original defendant no.2 and respondent nos.1, 2, 3 and 4 / original plaintiff nos.1, 2, 3, 4 and respondent no.5 / original defendant no.1 and respondent no.6 / original defendant no.3.

3. Being aggrieved by the judgment and decree dated 17.3.1992 passed by IVth Additional District Judge, Kolhapur in Regular Civil Appeal No.230 of 1986 and cross objections, the defendant no.2 preferred the present Second Appeal. Respondent No.1 original plaintiff filed Cross-Objection. A few facts of the matter are as under:

4. The original plaintiffs filed Regular Civil Suit No.55 of 1997 in the court of Civil Judge, Junior Division at Malkapur for declaration that defendant no.1, Muktabai Shankar Sutar was not legally wedded wife of Shankar Kondi Sutar. The property was sold by defendant no.1 in favour of defendant no.2. The sale deed executed by defendant no. 1 in favour of defendant no.2 in respect of the suit property bearing G.P. No.25 is bad in law and same be set aside. In the alternative, it is to be declared that the suit property bearing G.P. No.25 was HUF property and therefore defendant no. 1 has no right to sell the entire property in favour of defendant no.2. The plaintiff pleaded that plaintiff no. 1 is the son of Shankar Kondi Sutar and plaintiffnos.2, 3 and 4 are daughters. Their contention was that the defendant no. 1 was kept mistress of their father Shankar Kondi Sutar. On the basis of the pleadings, the trial court by its judgment and decree dt.20.3.1986 held that plaintiffs are entitled to recover possession of the house property in suit to the extent of their 3/5th share by metes and bounds. The partition of the suit house property be effected by appointment of Court Commissioner. The trial court further held that mesne profit will be determined separately in view of Order 20 Rule 12 of the Code of Civil Procedure.

5. Being aggrieved by the said judgment and decree passed by the trial court, defendant nos.2 and 3 preferred Regular Civil Appeal No.230 of 1986 in the court of IVth Additional District Judge, Kolhapurat Kolhapur. In that appeal, the plaintiffs preferred cross - examination under Rule 22 of Order XLI of the Code of Civil Procedure. They raised following grounds in their cross-objection:

"a) The lower court erred in not granting the whole relief as prayed in the suit.

b) The lower courts refusal to grant whole relief is illegal and illogical.

c) The reasoning for rejecting relief to the extent of share in the suit property is illegal and unwarranted.

d) The respondents are entitled to whole relief but this aspect has not been properly followed and appreciated.

e) The lower court has not followed the relevant provisions of Hindu Law and Hindu Succession Act."

6. The appellate court by judgment and decree dt.17.3.1992 dismissed the appeal preferred by defendant nos.2 and 3 and allowed the cross-objections. The appellate court directed defendant nos.2 and 3 to deliver possession of the suit property to the plaintiff.

7. Being aggrieved by the judgment and decree passed by the lower appellate court in Regular Civil Appeal No.230 of 1996, the original defendant no.2 preferred the present Second Appeal.

8. The Second Appeal is admitted by this court on 4.8.1992 on following substantial questions of law:

"1) Whether the presumption regarding the marital status of Muktabai (Original Defendant No.1 since deceased) on the basis of her long cohabitation with Shankar and the documentary evidence regarding the voters' list and property card could be said to be rebutted by the oral evidence of the plaintiffs

2) Whether the lower Appellate court erred in law in relying purely on oral evidence while disturbing the finding of the marital status of Muktabai since deceased?

3) Whether the lower Appellate court committed a grave error of law in record

Click Here to Read the rest of this document

2014 Supreme(Bom) 2106

IN THE HIGH COURT OF JUDICATURE AT BOMBAYK. K. TATED, J.Bhilaji Bandu Sutar & Lohar – Appellant Vs.Rangarao Shankar Sutar & Ors. – Respondent Second Appeal No.364 of 1992 with Cross-Objections (St). No.18331 of 1992.Decided On : 8th December, 2014.

Cases Referred (4)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K. K. TATED, J.
Bhilaji Bandu Sutar & Lohar – Appellant
Vs.
Rangarao Shankar Sutar & Ors. – Respondent
Second Appeal No.364 of 1992 with Cross-Objections (St). No.18331 of 1992.
Decided On : 8th December, 2014.