Full Judgment Text
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2005:BHC-AS:18831
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.201 OF 1989
1. Khandu alias Kanderao Ramchandra
Gode, since deceased by his heirs
and legalrepresentatives
1A. Anjanabai Khandu Gode
1B. Jagannath Khande Gode
both residing at and Post
Shindwada, Taluka Dindori,
District Nasik
1C. Sitabai Madhavrao Sonawane
residing at and post Kajisangvi
Tal. Chandwad, Dist.Nasik
1D. Janakabai Madhavrao Atre
residing at and post Umbarkhed
Taluka Niphad, Dist.Nasik
1E. Vithabai Kedu Kushar
residing at and post Nandur-Khurd
Taluka Niphad, Dist. Nasik. ..Appellants
Versus
1. Chandrabhagabai Rajaram Gade
2. Chandrakant Rajaram Gade
3. Pushpa Rajaram Gade
4. Usha Rajaram Gade
5. Namdeo Vithal Bhalerao since
deceased his legal representaives
5a. Shobha G.Patil
r/at at and post Jaulk Wani
Tal. Dindori, Dist. Nasik
5b. Sou Sitabai Namdeo Bhalerao
r/at Tisgaon, Tal. Dindori,
Dist. Nasik.
6. Rajaram Vithal Bhalerao
7. Vasant Rajaram Gade
both Agri. r/o Tisgaon,
Tal. Dindori, Dist. Nasik. ..Respondents
Miss A.R.S.Baxi for appellants
Mr.Kishor Patil i/b Mr.P.N.Joshi for respondent nos.1 to
4
Ms Deepa Matondkar i/b Mr.J.N.Pawar for respndent no.5
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CORAM : P.V.KAKADE, J.
DATE : 14th OCTOBER, 2005.
ORAL JUDGMENT :
1. The appellants have preferred this appeal
against the judgment and order passed by 2nd Addl.
District Judge,Nasik decreeing the plaintiffs’ suit by
order dated 25th October, 1985 for partition and
separate possession of respective shares of the property
by modifying the decree passed by the trial court dated
31st July 1981.
2. I have heard the learned counsel for both the
parties. Perused the record.
3. The Plaintiff No.1 Chandrabhagabai filed the
suit for herself and for her minor children claiming she
was married to Rajaram after the death of his first
wife. This marriage had taken place about 15/20 years
ago. The plaintiff did not give any particulars about
the year or date of marriage. It was submitted that the
marriage had taken place in presence and at the hands of
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priest in a Gandharva Form. After the marriage she gave
birth to Respondent nos.2 to 4 who were begotten from
the said marriage. Rajaram was serving as a Police
Constable, who died in April 1969. The defendant no.2
Vasant is the son of Rajaram begotten from his first
wife. Defendant no.1 Khandu is the uncle of deceased
Rajaram. Rajaram’s father Trimbak died long back in the
year 1927-28. However, left behind a widow Manjulabai
i.e. mother of Rajaram. Manjulabai who was original
defendant no.5 had died during the pendency of appeal
and her legal representatives are, according to the
plaintiffs, defendant no.2 and all the plaintiffs.
According to the plaintiff, she married with Rajaram in
a Gandharva form and family was joint family having
agricultural land, houses etc. at village Sindwad in
Taluka Dindori and also at Tasgaon in Tal. Dindori.
Family also owned movables like agricultural implements,
cattle, including bullocks etc. The property belonging
to the joint family. After the death of Rajaram, the
property was mutated jointly in the name of Defendant
no.1 and plaintiff as well as defendant no.2. Thus the
property continued to be jointly recorded. However,
after the death of Rajaram, the defendant nos.1 and 2
started troubling the plaintiffs by some means or other
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and did not allow them to reside at Sindwad. The income
of the joint family property was also not allowed to be
taken by the plaintiffs proportionately to their share.
This resulted in plaintiffs not getting any income and
therefore, the plaintiff no.1 took her children and
shifted to her father’s house at village Dindori in Tal.
Niphad. It is also contended that mango trees and
Babhul trees belonging to the joint family were sold to
third party. When it was learnt that she came to the
conclusion that it was against her interest and hence
decided to file the suit. The plaintiff has claimed the
declaration that the sale deed executed by defendants
with regard to the properties in question were not
binding on her as the plaintiff had never consented to
the same. According to the plaintiffs, they had 4/5
share in the suit properties and therefore, they have
filed the suit for partition and separate shares and
possession thereof. The defendants contested the suit,
inter alia, denying the plaintiffs’ claim and submitted
that the entire suit property had come to their share
after partitions were effected. They also challenged
the legal status of plaintiff no.1 as legally wedded
wife of Rajaram and stated that she had no right, title
and interest in the suit property. Defendant no.5 was
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joined subsequently in the suit, who contended that
Rajaram had first married with a women by name
Chandrabhaga and said Chandrabhaga died soon after the
marriage. Thereafter, Rajaram married another woman,
who was named as Chandrabhaga after her marriage.
Defendant no.2 was born to this Chandrabhaga. This
Chandrabhaga died due to disease of T.B. Thereafter,
deceased Rajaram never married with anybody and
therefore, plaintiff no.1 claims that she was legally
wedded wife of Rajaram was denied and as such suit was
sought to be dismissed.
4. The learned trial judge adjudicated the dispute
on merits and came to the conclusion that the plaintiffs
had proved that the plaintiff no.1 was legally wedded
wife of Rajaram and Plaintiff Nos.2 to 4 are legitimate
children of deceased Rajaram. It was further held that
the defendants failed to prove that there was previous
partition between the defendant no.1 and deceased
Rajaram and as such it was held that the plaintiffs were
entitled to get partition and separate possession of
share in the suit property and suit came to be decreed
with direction to pay mesne profits.
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. The appeal was carried to the District Court,
Nasik. The learned Addl. District Judge after hearing
both the parties came to the conclusion that the
plaintiff no.1 was legally wedded wife of Rajaram and
Plaintiff nos.2 to 4 legitimate children of Rajaram. It
was also held that defendants also failed to prove the
previous partition between the defendant no.1 and
deceased Rajaram and as such suit came to be decreed by
confirming the judgment of the lower court. However,
shares of the respective parties were modified as
observed by the lower appellate court. Also amount of
mesne profit was modified and it was directed that
amount of Rs.4500/= be paid by the defendant nos.1 and 2
to the plaintiffs towards past mesne profits and share
of fruits and movables. Hence the present appeal.
5. It may be noted that at the time of admission of
the appeal this Court has formulated the substantial
questions of law to the effect that whether the marriage
of the plaintiff no.1 was valid in law when in fact it
was seen that the first wife of Rajaram was alive at the
time of the plaintiff’s marriage?
6. In this regard I must note here that the entire
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evidence on record shows that the bone of contention is
legitimacy of marriage between the plaintiff no.1 and
deceased Rajaram and therefore, evidence in that respect
would be sufficient to decide the fate of the appeal.
In this regard P.W.1 Chandrabhagabai has stated in her
evidence that she had married to Rajaram in Gandharv
form. Though she is unable to give year or month of her
marriage, she has stated that the marriage had taken
place some time 20 or 25 years prior to her evidence.
This part of her evidence was recorded in October, 1979,
therefore, it is apparent that the marriage had taken
place some time between 1954 to 1959. There does not
appear to be any dispute that the previous wife of
Rajaram was also named. Chandrabhagabai, who died in
the month of June 1957. The extract of her death
register is at Exh.111. It was produced by the
defendants which shows the date of death as 7th June
1957. The question therefore is as to whether the
plaintiff can prove that she had married to Rajaram
after June 1957 and whether her first marriage was
lawfully dissolved. In her evidence she has stated
clearly that there was a divorce obtained by her from
her first husband. She had also stated that the first
wife of Rajaram was dead when Rajaram entered into
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Gandharv marriage with her. The name of first husband
of plaintiff no.1 is stated to be Bhairu Dhondiba. She
has deposed that Bhairu did not like her because she was
illiterate and had given divorce to her as a result of
that. According to the plaintiff, there was writing
about divorce and her father had kept this divorce deed.
This divorce deed was shown to Rajaram at the time of
Gandharva. This divorce deed has not been produced by
her in the court. It was submitted on behalf of the
appellants that non production of divorce deed should
lead interference that there was no such divorce deed.
However, it must be noted that the divorce deed is an
old document. Also it is to be noted that the plaintiff
No.1 has lived with Rajaram as his wife openly for a
long time and it was hardly expected by her that the
divorce deed would ever be required later on. Her
version that the divorce deed was not traceable appears
to be probable in view of the long cohabitation that has
taken place between plaintiff no.1 and deceased Rajaram.
. She has also examined her brother P.W.2 Bhikaji.
He was serving in Security Press and he has stated that
the first marriage of plaintiff no.1 was dissolved
because the first husband was a educated person while
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plaintiff no.1 was not. He has also stated that a
divorce deed was executed in the matter and it was with
the parents. But the said deed was not traceable. Thus
this witness also speaks of a divorce deed which was
executed and his evidence appears to be a natural as he
is a brother, who should be in the know of the facts
involved relating to the family. Next witness examined
on behalf of the plaintiff is P.W.- Mule who is Brahmin
priest, who had performed Gandharv marriage of the
plaintiff with Rajaram. This witness has stated that he
performed the marriage and before performing such
marriage Plaintiff No.1 was divorced from her former
husband and at the time of Gandharva this witness had
seen the deed of divorce to satisfy himself that no
illegality was being committed. This witness is also
disinterested witness and there is absolutely no reason
why he should be disbelieved. In view of this position,
the factum of Gandharva between Plaintiff no.1 and
deceased Rajaram must be held to be proved, as
concurrently recorded by both the courts below. If this
fact is accepted, then the question of legal status of
Plaintiff’s marriage established.
7. The second contention raised on behalf of the
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appellants is regarding the allegation that first wife
of Rajaram was alive when the alleged marriage of
plaintiff no.1 took place. The reasoning adopted by the
learned lower appellate court in this regard appears to
be quite acceptable when it is concluded that in all
probabilities that first wife of Rajaram was already
dead when plaintiff no.1 was married to him. This
conclusion is based on various pieces of documentary
evidence. It is to be seen that first wife of Rajaram
died on 7.6.1957, the birth extract of plaintiff no.3,
one of the children of deceased Rajaram and plaintiff
no.1, apparently shows that he was born on 17th August
1958, which leads to presumption that plaintiff no.1 was
married soon after first wife of Rajaram died. At any
rate, the concurrent findings recorded by both the
courts below on the basis of facts involved and proved
on record appear to be reasonable, and therefore, cannot
be doubted even for a moment. Under these
circumstances, I hold that the plaintiff no.1 was
legally wedded wife of Rajaram and Plaintiff nos.2 to 4
are legitimate children begotten from their marriage.
It is also apparent from the evidence that plaintiff
no.1 was married to Rajaram after death of his first
wife and therefore, there is no legal bar in respect of
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their marriage by resorting to form of Gandharva Vivah.
8. Once we reach this position, the remaining
factors are seen to be properly adjudicated by the lower
appellate court in respect of determination of share of
the parties especially when the defendants have failed
to establish that there was previous partition between
deceased Rajaram and defendant no.1 and as such suit
property was joint family property.
9. For the reason recorded above, I hold that there
is no merits in the appeal and therefore appeal stands
dismissed. In view of the facts and circumstances,
there shall be no order as to costs.
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2005:BHC-AS:18831
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.201 OF 1989
1. Khandu alias Kanderao Ramchandra
Gode, since deceased by his heirs
and legalrepresentatives
1A. Anjanabai Khandu Gode
1B. Jagannath Khande Gode
both residing at and Post
Shindwada, Taluka Dindori,
District Nasik
1C. Sitabai Madhavrao Sonawane
residing at and post Kajisangvi
Tal. Chandwad, Dist.Nasik
1D. Janakabai Madhavrao Atre
residing at and post Umbarkhed
Taluka Niphad, Dist.Nasik
1E. Vithabai Kedu Kushar
residing at and post Nandur-Khurd
Taluka Niphad, Dist. Nasik. ..Appellants
Versus
1. Chandrabhagabai Rajaram Gade
2. Chandrakant Rajaram Gade
3. Pushpa Rajaram Gade
4. Usha Rajaram Gade
5. Namdeo Vithal Bhalerao since
deceased his legal representaives
5a. Shobha G.Patil
r/at at and post Jaulk Wani
Tal. Dindori, Dist. Nasik
5b. Sou Sitabai Namdeo Bhalerao
r/at Tisgaon, Tal. Dindori,
Dist. Nasik.
6. Rajaram Vithal Bhalerao
7. Vasant Rajaram Gade
both Agri. r/o Tisgaon,
Tal. Dindori, Dist. Nasik. ..Respondents
Miss A.R.S.Baxi for appellants
Mr.Kishor Patil i/b Mr.P.N.Joshi for respondent nos.1 to
4
Ms Deepa Matondkar i/b Mr.J.N.Pawar for respndent no.5
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CORAM : P.V.KAKADE, J.
DATE : 14th OCTOBER, 2005.
ORAL JUDGMENT :
1. The appellants have preferred this appeal
against the judgment and order passed by 2nd Addl.
District Judge,Nasik decreeing the plaintiffs’ suit by
order dated 25th October, 1985 for partition and
separate possession of respective shares of the property
by modifying the decree passed by the trial court dated
31st July 1981.
2. I have heard the learned counsel for both the
parties. Perused the record.
3. The Plaintiff No.1 Chandrabhagabai filed the
suit for herself and for her minor children claiming she
was married to Rajaram after the death of his first
wife. This marriage had taken place about 15/20 years
ago. The plaintiff did not give any particulars about
the year or date of marriage. It was submitted that the
marriage had taken place in presence and at the hands of
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priest in a Gandharva Form. After the marriage she gave
birth to Respondent nos.2 to 4 who were begotten from
the said marriage. Rajaram was serving as a Police
Constable, who died in April 1969. The defendant no.2
Vasant is the son of Rajaram begotten from his first
wife. Defendant no.1 Khandu is the uncle of deceased
Rajaram. Rajaram’s father Trimbak died long back in the
year 1927-28. However, left behind a widow Manjulabai
i.e. mother of Rajaram. Manjulabai who was original
defendant no.5 had died during the pendency of appeal
and her legal representatives are, according to the
plaintiffs, defendant no.2 and all the plaintiffs.
According to the plaintiff, she married with Rajaram in
a Gandharva form and family was joint family having
agricultural land, houses etc. at village Sindwad in
Taluka Dindori and also at Tasgaon in Tal. Dindori.
Family also owned movables like agricultural implements,
cattle, including bullocks etc. The property belonging
to the joint family. After the death of Rajaram, the
property was mutated jointly in the name of Defendant
no.1 and plaintiff as well as defendant no.2. Thus the
property continued to be jointly recorded. However,
after the death of Rajaram, the defendant nos.1 and 2
started troubling the plaintiffs by some means or other
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and did not allow them to reside at Sindwad. The income
of the joint family property was also not allowed to be
taken by the plaintiffs proportionately to their share.
This resulted in plaintiffs not getting any income and
therefore, the plaintiff no.1 took her children and
shifted to her father’s house at village Dindori in Tal.
Niphad. It is also contended that mango trees and
Babhul trees belonging to the joint family were sold to
third party. When it was learnt that she came to the
conclusion that it was against her interest and hence
decided to file the suit. The plaintiff has claimed the
declaration that the sale deed executed by defendants
with regard to the properties in question were not
binding on her as the plaintiff had never consented to
the same. According to the plaintiffs, they had 4/5
share in the suit properties and therefore, they have
filed the suit for partition and separate shares and
possession thereof. The defendants contested the suit,
inter alia, denying the plaintiffs’ claim and submitted
that the entire suit property had come to their share
after partitions were effected. They also challenged
the legal status of plaintiff no.1 as legally wedded
wife of Rajaram and stated that she had no right, title
and interest in the suit property. Defendant no.5 was
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joined subsequently in the suit, who contended that
Rajaram had first married with a women by name
Chandrabhaga and said Chandrabhaga died soon after the
marriage. Thereafter, Rajaram married another woman,
who was named as Chandrabhaga after her marriage.
Defendant no.2 was born to this Chandrabhaga. This
Chandrabhaga died due to disease of T.B. Thereafter,
deceased Rajaram never married with anybody and
therefore, plaintiff no.1 claims that she was legally
wedded wife of Rajaram was denied and as such suit was
sought to be dismissed.
4. The learned trial judge adjudicated the dispute
on merits and came to the conclusion that the plaintiffs
had proved that the plaintiff no.1 was legally wedded
wife of Rajaram and Plaintiff Nos.2 to 4 are legitimate
children of deceased Rajaram. It was further held that
the defendants failed to prove that there was previous
partition between the defendant no.1 and deceased
Rajaram and as such it was held that the plaintiffs were
entitled to get partition and separate possession of
share in the suit property and suit came to be decreed
with direction to pay mesne profits.
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. The appeal was carried to the District Court,
Nasik. The learned Addl. District Judge after hearing
both the parties came to the conclusion that the
plaintiff no.1 was legally wedded wife of Rajaram and
Plaintiff nos.2 to 4 legitimate children of Rajaram. It
was also held that defendants also failed to prove the
previous partition between the defendant no.1 and
deceased Rajaram and as such suit came to be decreed by
confirming the judgment of the lower court. However,
shares of the respective parties were modified as
observed by the lower appellate court. Also amount of
mesne profit was modified and it was directed that
amount of Rs.4500/= be paid by the defendant nos.1 and 2
to the plaintiffs towards past mesne profits and share
of fruits and movables. Hence the present appeal.
5. It may be noted that at the time of admission of
the appeal this Court has formulated the substantial
questions of law to the effect that whether the marriage
of the plaintiff no.1 was valid in law when in fact it
was seen that the first wife of Rajaram was alive at the
time of the plaintiff’s marriage?
6. In this regard I must note here that the entire
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evidence on record shows that the bone of contention is
legitimacy of marriage between the plaintiff no.1 and
deceased Rajaram and therefore, evidence in that respect
would be sufficient to decide the fate of the appeal.
In this regard P.W.1 Chandrabhagabai has stated in her
evidence that she had married to Rajaram in Gandharv
form. Though she is unable to give year or month of her
marriage, she has stated that the marriage had taken
place some time 20 or 25 years prior to her evidence.
This part of her evidence was recorded in October, 1979,
therefore, it is apparent that the marriage had taken
place some time between 1954 to 1959. There does not
appear to be any dispute that the previous wife of
Rajaram was also named. Chandrabhagabai, who died in
the month of June 1957. The extract of her death
register is at Exh.111. It was produced by the
defendants which shows the date of death as 7th June
1957. The question therefore is as to whether the
plaintiff can prove that she had married to Rajaram
after June 1957 and whether her first marriage was
lawfully dissolved. In her evidence she has stated
clearly that there was a divorce obtained by her from
her first husband. She had also stated that the first
wife of Rajaram was dead when Rajaram entered into
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Gandharv marriage with her. The name of first husband
of plaintiff no.1 is stated to be Bhairu Dhondiba. She
has deposed that Bhairu did not like her because she was
illiterate and had given divorce to her as a result of
that. According to the plaintiff, there was writing
about divorce and her father had kept this divorce deed.
This divorce deed was shown to Rajaram at the time of
Gandharva. This divorce deed has not been produced by
her in the court. It was submitted on behalf of the
appellants that non production of divorce deed should
lead interference that there was no such divorce deed.
However, it must be noted that the divorce deed is an
old document. Also it is to be noted that the plaintiff
No.1 has lived with Rajaram as his wife openly for a
long time and it was hardly expected by her that the
divorce deed would ever be required later on. Her
version that the divorce deed was not traceable appears
to be probable in view of the long cohabitation that has
taken place between plaintiff no.1 and deceased Rajaram.
. She has also examined her brother P.W.2 Bhikaji.
He was serving in Security Press and he has stated that
the first marriage of plaintiff no.1 was dissolved
because the first husband was a educated person while
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plaintiff no.1 was not. He has also stated that a
divorce deed was executed in the matter and it was with
the parents. But the said deed was not traceable. Thus
this witness also speaks of a divorce deed which was
executed and his evidence appears to be a natural as he
is a brother, who should be in the know of the facts
involved relating to the family. Next witness examined
on behalf of the plaintiff is P.W.- Mule who is Brahmin
priest, who had performed Gandharv marriage of the
plaintiff with Rajaram. This witness has stated that he
performed the marriage and before performing such
marriage Plaintiff No.1 was divorced from her former
husband and at the time of Gandharva this witness had
seen the deed of divorce to satisfy himself that no
illegality was being committed. This witness is also
disinterested witness and there is absolutely no reason
why he should be disbelieved. In view of this position,
the factum of Gandharva between Plaintiff no.1 and
deceased Rajaram must be held to be proved, as
concurrently recorded by both the courts below. If this
fact is accepted, then the question of legal status of
Plaintiff’s marriage established.
7. The second contention raised on behalf of the
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appellants is regarding the allegation that first wife
of Rajaram was alive when the alleged marriage of
plaintiff no.1 took place. The reasoning adopted by the
learned lower appellate court in this regard appears to
be quite acceptable when it is concluded that in all
probabilities that first wife of Rajaram was already
dead when plaintiff no.1 was married to him. This
conclusion is based on various pieces of documentary
evidence. It is to be seen that first wife of Rajaram
died on 7.6.1957, the birth extract of plaintiff no.3,
one of the children of deceased Rajaram and plaintiff
no.1, apparently shows that he was born on 17th August
1958, which leads to presumption that plaintiff no.1 was
married soon after first wife of Rajaram died. At any
rate, the concurrent findings recorded by both the
courts below on the basis of facts involved and proved
on record appear to be reasonable, and therefore, cannot
be doubted even for a moment. Under these
circumstances, I hold that the plaintiff no.1 was
legally wedded wife of Rajaram and Plaintiff nos.2 to 4
are legitimate children begotten from their marriage.
It is also apparent from the evidence that plaintiff
no.1 was married to Rajaram after death of his first
wife and therefore, there is no legal bar in respect of
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their marriage by resorting to form of Gandharva Vivah.
8. Once we reach this position, the remaining
factors are seen to be properly adjudicated by the lower
appellate court in respect of determination of share of
the parties especially when the defendants have failed
to establish that there was previous partition between
deceased Rajaram and defendant no.1 and as such suit
property was joint family property.
9. For the reason recorded above, I hold that there
is no merits in the appeal and therefore appeal stands
dismissed. In view of the facts and circumstances,
there shall be no order as to costs.
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