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2005 Supreme(MP) 66
2005(3) JLJ 140
S.K. Gangele, J.
Karan Singh and another v. Sitaram and others
Second Appeal No. 273 of 1989 : against the judgment and decree of III Additional Judge to the Court of District Judge, Shajapur, passed in Civil Appeal No. 13-A of 1982; Decided on 11.1.2005.
G.M. Chaphekar with Kale for appellants;
A.K. Sethi for respondents.
Headnote:(1) Evidence Act, 1872--Ss.107 and 108--lady residing with man for 40-45 years --previous husband not heard of for 35-40 years--presumption of valid marriage can be drawn.
Plaintiffs filed civil suit mentioning that plaintiffs and defendants No.3, 4 and 5 are real brothers and defendant No. 1 is their father and defendant No.6 is the mother of defendant No. 1 and 2 and defendant No.7 is the mother of plaintiffs and defendants No.3, 4 and 5. .... The plaintiffs and defendants are members of undivided Hindu family property and hence, they are the owners as coparcener of the property.
Because the defendant No. 1 was old person and there are quarrels between his both the wives, hence, the defendant No.2 filed a suit against defendants No.1, 8 and 9 on 23.12.1977 and after a compromise he obtained a decree in that suit. The name of defendants No.3, 4 and 5 and the plaintiff was not mentioned and decree was obtained on 9.8.1978 in Case No. 2-A/1978. It has further been pleaded that the defendants No.3, 4 and 5 of the family were in possession of the 1/4th part of the property mentioned in the para 3, 4 and 5 of the plaint for last 12 years. It has been submitted that the defendants No.3, 4 and 5 and other defendants are brothers and are entitled to same share in the property. They are entitled for a partition and possession. The decree passed in Civil Suit No. 2-A/1978 is not binding on the appellants. [Paras 3 & 4
The learned trial Court held that the plaintiffs and defendants No.3, 4 and 5 are the real brothers but the plaintiffs and other defendants are not the members of undivided Hindu family property. Neither property mentioned in para 2, 3, 4 and 5 of the plaint is the ancestral property of plaintiff and defendant No.2 to 5 nor they are owners of the said property. The trial Court considered the oral and documentary evidence on record and came to the conclusion that Sitaram had two wives Murlibai and Sardarbai. Murlibai was the married wife of Sitaram and defendants No. 1 and 2 are the sons of Murlibai. It has been further held by the trial Court that Sardarbai was residing with Sitaram for the last 40 to 45 years but it has been held that she was residing as a keep and plaintiffs No.1 and 2 and defendants No.3, 4 and 5 cannot be said to be valid sons of Sitaram. It has further been held that before residing with the plaintiff Sardarbai was married to a person at Diwankhedi and at the time of filing of the suit Sitaram deposed that he had seen the husband of Sardarbai 35 to 40 years before. After that nobody has seen him. The learned trial Court further held that the fact with regard to marriage of Sardarbai is related to 40 to 45 years back. Hence, provisions of Hindu Marriage Act were not applicable because plaintiff has failed to prove that the prior husband of Sardarbai was dead, hence it could not be held that Sardarbai was the valid wife of the defendant No. 1 and on this basis it can also not be held that the plaintiff and defendants No.3, 4 and 5 are the sons of defendant No.1. On all these findings the trial Court dismissed the suit against that the plaintiff filed an appeal. The appellate Court too dismissed the appeal. [Para 6
Held: It is clear from the evidence that all witnesses have deposed that Sardarbai was living with the defendant No.1 Sitaram for the last 40 years. Sitaram himself admitted that he had not seen the husband of Sardarbai for the last 35 to 40 years. On the basis of above evidence it can safely be presumed that husband of Sardarbai was dead. [Para 10
In the above circumstance and principle of law Sardarbai can be said to be a legally married woman. In the facts that plaintiffs and defendants, witnesses have specifically admitted that Sardarbai had been living with the defendant No.1 Sitaram for the last 40-45 years and in such circumstances the presumption of valid marriage can be drawn. AIR 1978 SC 1557 and AIR 1952 SC 231 followed. 1990 RN 104 relied on. [Paras 11, 12 & 13
(2) Hindu Law--S.431--only one husband at a time--a woman cannot marry another man while her husband is alive--except when her marriage has been dissolved by divorce. Principles of Hindu Law by Mulla relied on. [Para 8
(3) Evidence Act, 1872--S. 3-‘proved‘, ‘disproved‘ and ‘not proved‘ as defined under--anvil for testing is one and the same whether the case is civil or criminal. (2003) 8 SCC 752 followed. [Para 14
(4) Civil P.C., 1908 -- S. 100 -- second appeal under -- judgment of final Court of fact -- based on misinterpretation of documentary evidence or inadmissible evidence -- ignoring material evidence--admissions or concessions ignored--High Court can interfere in second appeal. (2002) 6 SCC 404 followed. [Para 16
¼1½ Lkk{; vf/kfu;e] 1872& &/kkjk 107 rFkk 108& &efgyk dk iq#"k ds lkFk 40&45 o"kZ ls fuokl&iwoZ ifr ls 35&40 o"kZ ls HksaV ugha&fof/kekU; fookg dh mi/kkj.kk dh tk ldrh gSaA
oknhx.k us ;g mYys[k djrs gq, flfoy okn Qkby fd;k fd oknhx.k rFkk çfroknhx.k Ø-3] 4 rFkk 5 lxs HkkbZ gSa vkSj çfroknh Ø-1 mudk firk gS rFkk çfroknh Ø-6 çfroknhx.k Ø-1 vkSj 2 dh ekrk gS rFkk gS rFkk çfroknh Ø-7 oknhx.k vkSj çfroknhx.k Ø-3] 4 rFkk 5 dh ekrk gSA---oknhx.k rFkk çfroknhx.k vfoHkDr fganw dqVqac laifÙk ds lnL; gSa vkSj blfy,] os lgnkf;d dh Hkk¡fr ml laifÙk ds Lokeh gSaA
D;ksafd çfroknh Ø-1 o`) Fkk] mldh nksuksa ifRu;ksa esa >xM+s gksrs Fks] blfy, çfroknh Ø-2 us 23-12-1977 dks çfroknh Ø-1] 8 rFkk 9 ds fo#) okn Qkby fd;k vkSj le>kSrs ds i‘pkr~ mlus ml okn esa fMØh vfHkçkIr dhA çfroknhx.k Ø-3] 4] 5 vkSj oknh ds uke dk mYys[k ugha fd;k x;k Fkk vkSj ekeyk Ø-2&,@1978 esa 9-8-1978 dks fMØh vfHkçkIr dh xbZ FkhA ;g Hkh vfHkopfur gS fd dqVqac ds çfroknhx.k Ø-3] 4 rFkk 5] okni= ds iSjk 3] 4 rFkk 5 esa mfYyf[kr laifÙk ds 1@4 Hkkx ds xr 12 o"kZ ls dCts esa FksA ;g fuosnu fd;k x;k gS fd çfroknhx.k Ø-3] 4 rFkk 5 vkSj vU; çfroknhx.k HkkbZ&HkkbZ gSa rFkk laifÙk esa le:i va‘k ds gdnkj gSaA os foHkktu vkSj dCts ds gdnkj gSaA flfoy okn Ø-2&,@1978 esa ikfjr fMØh vihykFkhZx.k dks vkc)dj ugha gSA ¼iSjk 3 ,oa 4½
fo}ku fopkj.k U;k;ky; us vfHkfu/kkZfjr fd;k fd oknhx.k rFkk çfroknhx.k Ø-3] 4 vkSj 5 lxs HkkbZ gSa fdarq oknhx.k rFkk vU; çfroknhx.k vfoHkDr fganw dqVqac laifÙk ds lnL; ugha gSA u rks okni= esa iSjk 2] 3 vkSj 4 esa of.kZr laifÙk oknh rFkk çfroknhx.k 2 ls 5 dh iSr`d laifÙk gS vkSj os ml laifÙk ds Lokeh gSaA fopkj.k U;k;ky; us ekSf[kd vkSj vfHkys[kxr lk{; ij fopkj fd;k vkSj ;g fu"d"kZ fudkyk fd lhrkjke ds nks ifRu;k¡ Fkh( eqjyhckbZ vkSj ljnkjckbZA eqjyhckbZ] lhrkjke dh fookfgrk iRuh Fkh rFkk çfroknhx.k 1 vkSj 2 eqjyhckbZ ds iq= gSaA fopkj.k U;k;ky; }kjk ;g vkSj vfHkfu/kkZfjr fd;k x;k fd ljnkjckbZ xr 40 ls 45 lhrkjke ds lkFk jg jgh Fkha fdarq ;g vfHkfu/kkZfjr fd;k x;k gS fd og j[kSy dh Hkk¡fr jg jgh Fkh] oknhx.k Ø-1 rFkk 2 vkSj çfroknhx.k Ø- 3] 4 rFkk 5 lhrkjke ds fof/kekU; iq= ugha dgs tk ldrsA ;g Hkh vfHkfu/kkZfjr fd;k x;k gS fd oknh ds lkFk jgus ds iwoZ ljnkjckbZ dk nhoku[ksM+h fuoklh ,d O;fDr ds lkFk fookg gqvk Fkk rFkk okn Qkby fd, tkrs le; lhrkjke us vfHklk{; fn;k Fkk fd mlus ‘kkjnkckbZ ds ifr dks 35 ls 40 o"kZ igys ns[kk FkkA mlds i‘pkr~ og fdlh dks ugha fn[kkA fopkj.k U;k;ky; us ;g vkSj Hkh vfHkfu/kkZfjr fd;k fd ljnkjckbZ ds fookg ds ckjs esa rF; 40 ls 45 o"kZ ds iwoZ ls lacaf/kr gSaA blfy,] fganw fookg vf/kfu;e ds mica/k ykxw ugha gSa D;ksafd oknh ;g lkfcr djus esa foQy jgk gS fd ljnkjckbZ ds iwoZ ifr dh e`R;q gks pqdh gS] blfy, ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd ljnkjckbZ] çfroknh Ø-1 dh fof/kekU; iRuh Fkh vkSj bl vk/kkj ij ;g Hkh vfHkfu/kkZfjr ugha fd;k tk ldrk fd oknh vkSj çfroknhx.k Ø-3] 4 rFkk 5] çfroknh Ø-1 ds iq= gSaA bl leLr fu"d"kks± ij ls fopkj.k U;k;ky; us okn [kkfjt dj fn;k ftlds fo#) oknh us vihy Qkby dhA vihy U;k;ky; us vihy [kkfjt dj nhA ¼iSjk 6½
vfHkfu/kkZfjr % lk{; ls ;g Li"V gS fd lHkh lkf{k;ksa us vfHklk{; fn;k gS fd ljnkjckbZ] çfroknh Ø-1 lhrkjke ds lkFk xr 40 o"kZ ls jg jgh FkhA lhrkjke us Lo;a Lohdkj fd;k fd mlus ljnkjckbZ dk ifr xr 35 ls 40 o"kZ ls ugha ns[kk gSA mi;qZDr lk{; ds vk/kkj ij fujkin :i ls ;g mi/kkj.kk dh tk ldrh gS fd ljnkjckbZ ds ifr dh e`R;q gks pqdh gSA ¼iSjk 10½
mi;qZDr ifjfLFkfr esa vkSj fof/k ds fl)kar ij ljnkjckbZ oS/k :i ls fookfgr L=h dgha tk ldrh gSA bl rF; ij ls fd oknhx.k vkSj çfroknhx.k ds lkf{k;ksa us fofufnZ"V :i ls Lohdkj fd;k gS fd ljnkjckbZ] çfroknh Ø-1 lhrkjke ds lkFk xr 40&45 o"kZ ls jg jgh gS vkSj ,slh ifjfLFkfr;ksa esa fof/kekU; fookg dh mi/kkj.kk dh tk ldrh gSA , vkb vkj 1978 ,l lh 1557 rFkk , vkb vkj 1952 ,l lh 231 vuqlfjrA 1990 jk fu 104 voyafcrA ¼iSjk 11] 12 ,oa 13½
¼2½ fganw fof/k& &/kkjk 431&,d leku dsoy ,d ifr&dksbZ L=h fdlh vU; iq#"k ls fookg ugha dj ldrh tc rd mldk ifr thfor gS&flok blds fd fookg&foPNsn }kjk mldk fookg fo?kfVr gks x;k gksA eqYyk Ñr fçfUliYl vkQ fganw yk voyafcrA ¼iSjk 18½
¼3½ lk{; vf/kfu;e] 1872&/kkjk 3&;Fkk ifjHkkf"kr ^^lkfcr**] ^^uklkfcr** rFkk ^^lkfcr ugha gqvk**&ijh{k.k dh dlkSVh ,d gh vkSj vfHkUu gS] ekeyk flfoy gks ;k nkafMdA ¼2003½ 8 ,l lh lh 752 vuqlfjrA ¼iSjk 14½
¼4½ flfoy çfØ;k lafgrk] 1908& &/kkjk 100&f}rh; vihy&rF ds vafre U;k;ky; dk fu.kZ;&nLrkosth lk{; ds xyr vFkkZUo;u vFkok vxzkgk lk{; ij vk/kkfjr&rkfRod lk{;ksa dh mis{kk&LohÑfr vFkok vuqeksnu misf{kr&mPp U;k;ky; vihy esa gLr{ksi dj ldrk gSSA ¼2002½ 6 ,l lh lh 404 vuqlfjrA ¼iSjk 16½
1. This is the plaintiffs second appeal against the judgment and decree passed by III Additional Judge to the Court of District Judge, Shajapur in Civil Appeal No. 13-A/l982 dated 5.7.1989 affirming the judgment and decree passed in Civil Judge, Class II, Susner in Civil Suit No. 134-A1/979 dated 10.12.1981 dismissing the suit of the plaintiffs.
2. The appeal was admitted vide order dated 9.3.1990 on following substantial questions of law :
1. "That, the learned Judge has erred in not approaching the question about the fact of marriage between Sitaram and Sardarbai from the correct standpoint, erred in not drawing legal inference; and presumptions arising from proved facts ?"
2. "It be held that Sitaram and Sardarbai was validly married what is the effect on paternity of the plaintiff-appellant ?"
3. "Whether the procedure of examining defendant as Court witness adopted by the trial Court is erroneous and causes prejudice to the appellant ?"
3. Plaintiffs filed civil suit mentioning that plaintiffs and defendants No.3, 4 and 5 are real brothers and defendant No. 1 is their father and defendant No. 6 is the mother of defendant No. 1 and 2 and defendant No. 7 is the mother of plaintiffs and defendants No.3, 4 and 5. It is submitted by the plaintiff that his land area 4.179 hectare situated at village Papli is the joint family property although it is in the name of defendant No.1 who is the father. Similarly the respondent No.2 had half share in an another land of area 5.934 hectare situated in same village mentioned in para 3 of the plaint and also other lands mentioned in para 4, area 6.312 hectare and para 5, area 3.10 hectare and 1.829 hectare. In all these lands the defendant No.1 had half share of the property. These are the ancestral properties. The plaintiffs and defendants are members of undivided Hindu family property and hence, they are the owners as coparcener of the property.
4. Because the defendant No.1 was old person and there are quarrels between his both the wives, hence, the defendant No.2 filed a suit against defendants No.1, 8 and 9 on 23.12.1977 and after a compromise he obtained a decree in that suit. The name of defendants No.3, 4 and 5 and the plaintiff was not mentioned and decree was obtained on 9.8.1978 in Case No. 2-A/1978. It has further been pleaded that the defendants No.3, 4 and 5 of the family were in possession of the 1/4th part of the property mentioned in the para 3, 4 and 5 of the plaint for last 12 years. It has been submitted that the defendants No.3, 4 and 5 and other defendants are brothers and are entitled to same share in the property. They are entitled for a partition and possession. The decree passed in Civil Suit No. 2-A/1978 is not binding on the appellants. They prayed a partition in the suit property mentioned in the plaint and also possession and declaration that the judgment and decree passed in Civil Suit No. 2A/1978 are not binding on them.
5. The defendants No.1, 2 and 6 filed the written statement denied the claim of the plaintiffs. It has specifically been denied by the defendants that the respondents No.3, 4 and 5 are their brothers and their property is joint hindu family property. It has further been mentioned if it has been held that the defendants No.3, 4 and 5 and plaintiffs are the sons of the defendant No.1, hence, they are illegal and they are not entitled to any share in the property of the defendant No.1. It has been pleaded that defendants No.8 and 9 has gifted the land in favour of defendant No. 2 and he became the owner of the said land and the land is not the ancestral one.
6. The learned trial Court held that the plaintiffs and defendants No.3, 4 and 5 are the real brothers but the plaintiffs and other defendants are not the members of undivided Hindu family property. Neither properly mentioned in para 2, 3, 4 and 5 of the plaint is the ancestral property of plaintiff and defendant No.2 to 5 nor they are owners of the said property. The trial Court consid
