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PETITIONER:

SHANTINATH RAMU DANOLE & ANR.

Vs.

RESPONDENT:

JAMBU RAMU DANOLE & ORS.

DATE OF JUDGMENT: 05/11/1996

BENCH:

N.P. SINGH, FAIZAN UDDIN

ACT:

HEADNOTE:

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

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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

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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

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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.

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