05 November 1996
Supreme Court


Case number: Appeal Civil 2703 of 1984






DATE OF JUDGMENT:       05/11/1996




JUDGMENT:                       J U D G M E N T      Faizan Uddin, J. 1.    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  judgment and decree passed by the Trial Court whereby the  plaintiff’s 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 No. 1 Shantinath Ramu  Danole claimed  to be  the son  of deceased Ramubabu Danole and plaintiff No. 2 (mother of plaintiff No. 1) deceased Housabai claimed to be his widow. The defendant- respondent is  the son  of deceased  Ramubabu from his first wife  Rajubai.   The  plaintiffs   pleaded  that   the  suit properties were  ancestral properties  of deceased  Ramubabu Danole who  died on December 20, 1973, his first wife having died earlier  when the  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 Upalai. The plaintiffs  claimed   that  they  had  2/3rd  share  in  the ancestral properly  left behind  by  the  deceased  Ramubabu Danole. It  was alleged  that since the defendant-respondent No. 1  claimed to be the exclusive heir of deceased Ramubabu and denied  any share to the plaintiffs in the suit property they filed  the suit  for possession  of their 2/3rd share n the same  by partition.   The  plaintiffs also  alleged that during the pendency of the suit the respondent  had sold the land bearing  Gat No.  461 to the defendant/respondent No. 2 on 7.1.1977  which is  not binding  on  them.  It  was  also alleged by  the plaintiffs  that the  defendant No.  1  also created some  incumberance of  defendant/respondent No.3  on the property  for which  the  respondent  No.  1  alone  was liable. The  defendant No.  1 resisted the suit filed by the



plaintiffs by  pleading that  the plaintiff-appellant  No. 1 was not the son of deceased Ramubabu nor the plaintiff No. 2 Housabai (since  deceased) was the wife of deceased Ramubabu as he  had never  married  Housabai.  The  defendant  No.  1 claimed to  be the  only son  of deceased Ramubabu to be the exclusive owner  of the  suit property.  The defendant No. 1 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  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 defendant  No. 2 he had repaid the debts of his father.  The defendant  No. 2  in his  separate  written statement took  the plea  that the  defendant No.  1 is  the exclusive owner  of  the  suit  property  and  that  he  was purchaser from  him for  value   without any knowledge about the pendency  of this  suit. The  defendant  No.  3  in  its written statement  took the  plea that the deceased Ramubabu had taken  loan 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  the  Trial  Court  recorded  the  finding  that  the plaintiffs have  proved the  factum of  marriage of deceased Housabai, plaintiff  No. 2 with deceased Ramubabu Danole and the plaintiff-appellant  No. 1  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 bonafide purchaser of  the said Bat No. 461 and that the sad sale was not binding  on the plaintiffs.  It was also held that since the lands bearing Gat Nos. 655 and 639 were mortgaged by the deceased Ramubabu  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, on  the aforesaid  findings passed  a  decree  in favour of  the plaintiffs  for possession  of 2/3rd share by partition against the defendant No. 1. However, on appeal by the defendant-respondent No.1. 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 Smt.  Housabai was  wedded to  the deceased Ramubabu Danole and that the plaintiff No. 1 was 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  limina against  which this  appeal by special leave has been directed. 4.     Learned   counsel  appearing   for   the   plaintiffs strenuously urged  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 Smt. Housabai with Ramubabu Danole  but the  appellate Court not only fell into error in  rejecting the oral evidence as interested evidence but also  failed to  take into 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 submissions made by the learned counsel for the appellants. 5.    The  plaintiffs had  examined five  witnesses to prove the marriage of Housabai with Ramu Danole. Rangnath, PW 1 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. 1  Shantinath was  the son  of plaintiff No. 2 born from Ramu 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 year  after the marriage there was dispute between Housabai  and her  husband Ramubabu  where after his deceased sister Housabai lived 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. 1 was born  at Barshi.  Adnath Khamgaonkar,  PW 2  is  also  a relative of the plaintiffs.  He deposed that plaintiff No. 2 Housabai was  married to  Ramu Danole  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 years and  thereafter she came to her parents house when she was pregnant. He also stated that the plaintiff No. 1 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  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 be  relatives  and  friends  unless  their testimony suffers  from some inherent infirmity which is not to be found in the evidence of these who witnesses. 6.    Shankar,  PW 3  is a  co-villager of  the  plaintiffs. Although he  is not  a witness  to the  said marriage but 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. 1 is a  son of  Ramu and the plaintiff No. 2 deceased Housabai was the  wife of  Ramu and  that defendant No. 1 is also his son. He  stated that  after the  celebration of  marriage of Housabai with  Ramu about  40 to  42 years  back at Jainwadi Housabai resided  at Jainwadi  for about  1-1/2 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 cross-examination he stated that he had also seem  Housabai alongwith  her child  in the village but Ramu did  not allow  her to  reside with  him. Shankar, PW 3 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  Court on  flimsy 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 of Housabai 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 Section 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 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 Vs. 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 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 thus had the means of special knowledge of the relationship between them. 8.    Apart from the evidence discussed above, the plaintiff No. 1  Shantinath also  appeared as  PW 4  who deposed  that Ramubabu was his father and that defendant No. 1 is his step brother. He testified the extract of Birth Register, Ext. 72 and  stated   that  he   was  called  Shantinath  since  his childhood. He stated that in the Birth Register, Ext. 72 his name was  previously entered as Kantilal and the name of his grand father  was entered  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 Jainwadi in the presence of her brother Rangnath, PW 1 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 and live with her parents.  She also stated that she was pregnant when she left for  her parents  house and  delivered 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 No. 1 and 2 respectively which was never objected  to by  the 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 appellants Court and the High Court 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  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 and  the defendant-respondent  No.  1 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 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 at to costs.