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High Court Of Calcutta
N. C. Mukherji, Sudhindra Mohan Guha
BIKASH KUMAR MUKHERJEE - Appellant
Versus
NANDA RANI MUKHERJEE - Respondent
A. F. O. D. 169 Of 1976
Decided On : 04/10/1979
HINDU MARRIAGE - VALIDITY - MARRIAGE BETWEEN BRAHMIN AND NON-BRAHMIN - HINDU MARRIAGE VALIDITY ACT, 1949 - EFFECT - PRESUMPTION OF MARRIAGE - ESSENTIAL RITES AND CEREMONIES - BURDEN OF PROOF - GUARDIANSHIP CERTIFICATE - NOTICE - SERVICE - SUFFICIENCY.
Fact of the Case:
Plaintiffs filed a suit for recovery of khas possession upon declaration of title and other reliefs in respect of two properties, premises No. 36, Nabin Sarkar Lane, and 45, Baghbazar Street, Calcutta. The dispute arose due to conflicting claims of inheritance. The plaintiffs claimed title as heirs of Benoy Mukherjee, the original owner of both properties, through his son Bijoy, while the defendants claimed title as heirs of Basanta Mukherjee, Benoy's other son, and his wife Nandarani. The main issue in the case was whether Nandarani was Basanta's legally married wife and whether the defendants were his legitimate children.
Finding of the Court:
The court found that Nandarani was Basanta's legally married wife and that the defendants were his legitimate children. It held that the marriage between Basanta and Nandarani was valid under the Hindu Marriage Validity Act, 1949, which allowed for marriages between Brahmins and non-Brahmins. The court also found that there was a strong presumption of marriage arising from the fact that Basanta and Nandarani lived together for a long period and had four children together. The court further held that the plaintiffs had failed to rebut this presumption by providing evidence that essential rites and ceremonies, such as Saptapadi, were not performed.
Issues: 1. Whether the marriage between Basanta and Nandarani was valid under the Hindu Marriage Validity Act, 1949? 2. Whether there was a presumption of marriage arising from the fact that Basanta and Nandarani lived together for a long period and had four children together? 3. Whether the plaintiffs had rebutted the presumption of marriage by providing evidence that essential rites and ceremonies were not performed?
Ratio Decidendi: 1. The court held that the marriage between Basanta and Nandarani was valid under the Hindu Marriage Validity Act, 1949, which allowed for marriages between Brahmins and non-Brahmins. The court noted that the marriage took place after the passing of the Act and that there was no evidence to suggest that it was not performed in accordance with the Act's requirements. 2. The court held that there was a strong presumption of marriage arising from the fact that Basanta and Nandarani lived together for a long period and had four children together. The court relied on the principle that cohabitation with habit and repute raises a presumption of marriage. 3. The court held that the plaintiffs had failed to rebut the presumption of marriage by providing evidence that essential rites and ceremonies were not performed. The court noted that the plaintiffs had not examined any relations or witnesses who could have provided such evidence.
Final Decision: The court dismissed the plaintiffs' appeal and affirmed the judgment and decree passed by the trial court. The court held that the plaintiffs were co-sharers of the defendants in respect of the disputed premises 36, Nabin Sarkar Lane to the extent of undivided half share only and rejected the plaintiffs' other claims.
( 1 ) THIS is an appeal against the judgment and decree passed by Shri S. K. Ghosh, Judge, 7th Bench, City Civil Court, Calcutta dated 28th Jan. 1976, in Title Suit No. 91 of 1971. The plaintiffs are the appellants in this Court.
( 2 ) THE plaintiffs brought a suit for recovery of khas possession upon declaration of title and for other reliefs. The dispute is in respect of two properties, namely, premises No. 36, Nabin Sarkar Lane, and 45, Baghbazar Street, Calcutta. The former is a two storeyed pucca building and the latter is a thika tenancy consisting of about 10 rooms of which some are in the occupation of tenants. It is the plaintiffs' case that both the suit properties originally belonged to one Benoy Mukherjee who died in 1946 leaving his two sons Bijoy and Basanta as his sole heirs. Basanta died unmarried in Aug. 1969 leaving his brother Bijoy as his sole heir. On Bijoy's death in 1970 his sons Bikash and Bivash, plaintiffs Nos. 1 and 2 and the children and widow of Bijoy's predeceased son Biman inherited his properties. They are plaintiffs Nos. 3 to 5. All the plaintiffs are in khas possession of the entire premises No. 36 Nabin Sarkar Lane. Defendant No. 1 Sm. Nandarani Mukherjee is the mother and guardian of the minor childern (defendants 2 to 5.) She was a concubine of Basanta Mukherjee and lived with him and her children at 45, Baghbazar Street, Calcutta, till Basanta's death. They have no right, title and interest whatever in any of the suit properties. But defendant No. 1 fraudulently obtained a certificate of guardianship in respect of person and properties of defendants Nos. 2 to 5 under Section 10 of the Guardians and Wards Act from the City Civil Court. Calcutta on 12-12-69 in Act VIII Case No. 28 of 1969 falsely claiming that the minors are heirs of Basanta Mukherjee. The plaintiffs, in the circumstances, prayed for a declaration of their 16 annas titles in both the suit properties upon a finding that the above guardianship certificate granted to defendant No. 1 is null and void and not binding upon the plaintiffs. They also prayed for recovery of khas possession of premises No. 45, Baghbazar Street, Calcutta.
( 3 ) THE defendants contested the suit and denied all the material allegations of the plaint. The defence is that premises No. 45, Baghbazar Street belonged to Basanta exclusively and not to his father Benoy, that defendant No. 1 Nandarani is the legally married wife of Basanta and that defendants Nos. 2 to 5 are their legitimate children, that Bijoy never inherited Basanta's property. The defendants inherited the entire premises No. 45, Baghbazar Street from Basanta and undivided half share of premises No. 45, Nabin Sarkar Lane and that the guardianship certificate in Case No. 28 of 1969 had been obtained by the defendant No. 1 with due notice to the plaintiffs and without practising any fraud or misrepresentation as alleged by the plaintiffs and that the said certificate is binding on the plaintiffs. The learned Judge found on evidence that the defendant No. 1 Smt. Nandarani Mukherjee is the legally married wife of Basanta and their children are all legitimate ones. Consequently, the defendants are Basanta's heirs and that the plaintiffs' predecessor Bijoy did not inherit any property of Basanta. The learned Judge consequently found that the plaintiffs have no right, title and interest in the premises No. 45, Baghbazar Street. It was also found that they did not inherit any interest in the undivided half share of the property, namely, 36, Nabin Sarkar Lane which originally belonged to Basanta. It was further found that the defendants are sole and exclusive owners of half share of 36, Nabin Sarkar Lane and are owners of full share of 45, Baghbazar Street. It was also found by the learned Judge that the guardianship certificate obtained by defendant No. 1 could not be held to be illegal or void in any way. In the result, the suit was decreed in part. It was declared that the def
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