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2002 DIGILAW 420 (KAR)

Paramagonda v. Bangarewwa

2002-07-04

K.SREEDHAR RAO

body2002
JUDGMENT K. Sreedhar Rao, J.--The appeal filled against the judgment and decree of the I Additional Civil Judge, Senior Division, Bijapur in O.S. No. 208/1995. The Appellants are the defendants in the suit. The Respondents-Plaintiffs filed the suit for partition and separate possession of the suit properties claiming to be the joint family properties and belonging to the husband of the first defendant. The second defendant is the daughter of the first defendant. The Plaintiffs are the nephews. According to Plaintiffs one Shankarappa who is the propositus had two sons by name Gurulingappa and Sharanappa. The first Plaintiff is the wife of Sharanappa who died in the year 1951 and the second Plaintiff is born in the wedlock between Sharanappa and the first Plaintiff. Shankarappa the propositus died in the year 1962 leaving behind his son Gurulingappa. The defendants 1 to 4 are the children of Gurulingappa who died in the year 1986. It is the contention of the Plaintiffs that the properties are the joint family properties and that the Plaintiffs are entitled to half share in the suit property. The defendants have disputed the relationship of Plaintiff as the wife of Sharanappa and the relationship of second Plaintiff Gangabai as daughter of Sharanappa. 2. Before the trial Court, the Plaintiffs have produced the documentary evidence like the school records of the second Plaintiff to show that Sharanappa is her father. The mutation entry in the land revenue records of the year 1962 is produced as Ex.P.17. The contents of the mutation entry discloses that Shankarappa had two sons by name Gurulingappa and Sharanappa and Gurulingappa pre deceased Sharanappa, the husband of the first Plaintiff Bangarewwa. Thereafter Gurulingappa is said to be the manager of the joint family property and accordingly mutation entries were carried out. Later on an addition is also made to clarify that both Gurulingappa and Bangarewwa have equal half share in the properties. The said mutation entry also mentions that notices to the parties was issued before the mutation entry is carried out. In addition to the documentary evidence, the oral evidence of independent witnesses P. Ws 3 and 4 is issued. Besides the Plaintiffs are examined themselves as P. Ws 1 and 2. The school records and birth certificate of the second Plaintiff is produced and marked in evidence. In addition to the documentary evidence, the oral evidence of independent witnesses P. Ws 3 and 4 is issued. Besides the Plaintiffs are examined themselves as P. Ws 1 and 2. The school records and birth certificate of the second Plaintiff is produced and marked in evidence. The trial Court on the basis of the evidence found that the first Plaintiff is the wife of Sharanappa and the second Plaintiff is her daughter. Accordingly, the suit is decreed for partition granting half share in the suit properties to the Plaintiffs together. Being aggrieved by the judgment and decree, the present appeal is filed. 3. Sri Praveenkumar Raikote appearing for the Appellant relied on the ruling of this Court in Khatalsaheb Wd. Khadirsaheb Inamdar Vs. Ameersaheb, ILR (1995) KAR 78 wherein it is held as follows: Birth and Death extracts can be admissible in evidence under Section 35 of the Evidence Act to show that a particular person by that name mentioned in the document was either born or dead on that particular day. But, in order to establish that the said entry relates to a particular person, there must be some evidence led by the party contending that such an entry relates to a particular person. Further, it is very clear that the entry in that birth or death extract cannot be a document to prove the paternity of a person mentioned there, because it is not the duty of the person who makes those entries to make any entry as to the paternity of the person mentioned there. The entries are only regarding birth and death of the person concerned and the official concerned is required to make these entries only in the discharge of his official duties. The document cannot be used for any purpose other than to prove the date of birth or death of a particular person mentioned in the extract. On the basis of mere entries in the birth or death extract, the paternity of a person cannot be determined. For that purpose, a party concerned will have to lead some other evidence to prove that a particular person was born to a particular man when that point is in issue in the case. 4. The Counsel also relied on the Ruling of the Supreme Court in Surjit Kaur Vs. For that purpose, a party concerned will have to lead some other evidence to prove that a particular person was born to a particular man when that point is in issue in the case. 4. The Counsel also relied on the Ruling of the Supreme Court in Surjit Kaur Vs. Garja Singh and Others, AIR 1994 SC 135 wherein in para 13 it is held thus: 13. Reliance placed on Charan Singh Harnam Singh and Another Vs. Gurdial Singh Harnam Singh and Another, AIR 1961 P & H 301 is not correct because that will apply only if the widow were to marry the brother of the husband. But, here Hulaba Singh is a stranger. As rightly contended by the Respondent, mere living as husband and wife does not, at any rate, confer the status of wife and husband. In Bhaurao Shankar Lokhande and Another Vs. State of Maharashtra and Another, AIR 1965 SC 1564 it was laid down that the bare fact that the man and woman living as husband and wife does not at any rate normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The following extract is useful for this purpose (at P. 1565 of AIR): Prima facie, the expression 'who ever... marries' mean 'whoever... marries validly' or 'whoever... marries and whose marriage is a valid one.' If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband wife does not, at any rate, normally give them he status of husband and wife even though they may hold themselves out before society as husband and wife and the society, treats them as husband and wife. In the cited case Surjit Kaur claimed to be wife Singh under of one Garja a registered Kerewa Nama dated 28.10.1965 and it was established that they lived as husband and wife. Surjit Kaur was a widow alleged to have remarried Garja Singh under a special custom prevalent in Punjab. In the cited case Surjit Kaur claimed to be wife Singh under of one Garja a registered Kerewa Nama dated 28.10.1965 and it was established that they lived as husband and wife. Surjit Kaur was a widow alleged to have remarried Garja Singh under a special custom prevalent in Punjab. The evidence was let in to show that there was distribution of gur after the marriage. Based on the said evidence, the Supreme Court held that mere distribution of gur and recitals in a document does not establish the performance of marriage as per the requirements of the custom. It was a case where custom relating to the marriage was not pleaded and proved. Under those circumstances it was held that mere fact that a man and a woman living as husband and wife for any length of time does not confer status of wife on the women. 5. The Counsel for the Appellant argued that the entries in the school records or in the birth certificate and the entries in Ex. P.17 are not admissible evidence to prove that the first Plaintiff is the legally wedded wife of Sharanappa and in the absence of proof of valid marriage, the Plaintiffs are not entitled to share. It is also argued that the independent witnesses P. Ws. 3 and 4 are quite young in age and they are not the witnesses to the marriage nor have spoken about the performance of the marriage between Sharanappa an first Plaintiff. In that view contended that the marriage of the first Plaintiff with Sharanappa is not proved. 6. Per contra the Counsel for the Respondents/Appellants relied on the ruling of the Supreme Court in Badri Prasad Vs. Dy. Director of Consolidation and Others, AIR 1978 SC 1557 wherein it is held thus: For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the Petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Sri. Garg, for the Petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. The special leave petitions are dismissed. 7. The ruling of the Supreme Court in Chowdegowda alias Dorji (dead) by LRs. and others Vs. C. Nagaraju and others, (1996) 6 AD SC 501 is relied on. In para 4 the following observations are made: 4. There is evidence in this case Ex.P.1, P.4 and P.36 which would indicate that Machine Chowdegowda had described the Appellant to be the son born to his first wife, Siddamma. It is seen that there is a controversy as regards the factum of the customary marriage by name Kuduvali marriage which seems to have taken place in early 1920. Under those circumstances, at the distance of 40 years it would be difficult to prove with certainty of evidence of the factum of the marriage etc. But the meat of the fact is that Siddamma and Machine Chowdegowda lived together as wife and husband and the Appellant came to be born from the wedlock. Under those circumstances, the presumption of valid marriage and as to Appellant having been born legitimately out of that marriage through Machine Chowdegowda could be drawn. This is the legal position settled by this Court in Badri Prasad Vs. Dy. Director of Consolidation and Others, AIR 1978 SC 1557 ; Sumitra Devi Vs. Bhikan Choudhary, AIR 1985 SC 765 and S.P.S. Balasubramanyam Vs. Suruttayan alias Andali Padayachi and others, AIR 1994 SC 133 . The Appellant must, therefore, be presumed to be a legitimate son of Machine Chowdegowda. Dy. Director of Consolidation and Others, AIR 1978 SC 1557 ; Sumitra Devi Vs. Bhikan Choudhary, AIR 1985 SC 765 and S.P.S. Balasubramanyam Vs. Suruttayan alias Andali Padayachi and others, AIR 1994 SC 133 . The Appellant must, therefore, be presumed to be a legitimate son of Machine Chowdegowda. Accordingly, the Appellant is granted one acre of the wet land and the rest of the land will be given to the Respondents according to the respective shares. A preliminary decree be drawn and an application to pass final decree be made and dealt with by the trial Court. The Division Bench of this Court in Lakshmamma Vs. Kamalamma and Others, AIR 2001 Kant 120 in para 14 it is held thus: 14. Therefore from the above authorities, it is clear that, if a man and woman professing to be husband and wife, cohabited for a long length of time and if the Society has recognised their relationship, a presumption would arise that they are legally wedded wife and husband. The western perception with regard to presumption on the point is not very much different from the perceptions entertained in Indian context by precedent Law laid down by the Supreme Court and the other High Courts. 8. The ruling of the Supreme Court in Harpal Singh and Another Vs. State of Himachal Pradesh, AIR 1981 SC 361 is relied on. In para 3 wherein it is held that entry in a birth register made by concerned official in discharge of his official duties, certified copy of the entry admissible under Section 35 and examination of the official is not necessary. For convenient reference the provisions of Section 35 are extracted herein under: 35. Relevancy of entry in public record, made in performance of duty.-An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law, of the country in which such book, register or record is kept, is itself a relevant fact. 9. Before going to the factual merits, it is necessary to advert to the legal proposition about the admissibility of the entries in the documents produced by the Plaintiff. The decision of this Court in Khatalsaheb Wd. Khadirsaheb Inamdar Vs. 9. Before going to the factual merits, it is necessary to advert to the legal proposition about the admissibility of the entries in the documents produced by the Plaintiff. The decision of this Court in Khatalsaheb Wd. Khadirsaheb Inamdar Vs. Ameersaheb, ILR (1995) KAR 78 is cited to contend that the paternity of the second Plaintiff shown in the birth register and in the school records cannot be taken into consideration as admissible and relevant document. However, after carefully going through the provisions of Section 35 I find that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept is itself a relevant fact. The autopsy of the key wordings of provision of Section 35 makes it clear that any fact mentioned in the record or book which a fact in issue or a relevant fact becomes admissible as a relevant fact by virtue of provisions of Section 35 of the Evidence Act. It is obvious that the entries are made in the birth or death register or in the school records at an undisputed point of time and not in the contemplation of any body that there would be a future litigation with regard to the facts that are stated therein. It is not that blindly the authorities make the entry with regard to the relevant particulars of information in respect of the relevant columns of the format and in that regard any information obtained and entered in the relevant columns of the format becomes a relevant fact and admissible when it becomes a relevant fact. The fact that the contents are admissible is not a conclusive proof by itself but it serves as one of the corroborative materials. In view of the ratio laid down by the Supreme Court and the provisions of Section 35 of the Evidence Act all the material particulars in the format in the birth and death register and in the school records will be relevant and admissible by the plain and natural meaning of Section 35 of the Act. In view of the ratio laid down by the Supreme Court and the provisions of Section 35 of the Evidence Act all the material particulars in the format in the birth and death register and in the school records will be relevant and admissible by the plain and natural meaning of Section 35 of the Act. In that view, I hold that the ratio laid down by this Court in ILR 1995 is per incurium and cannot hold the field. 10. The record Ex.P.17 produced by the Plaintiff is a mutation entry. The relevant details of the mutation entry has been narrated above. In discharge of the official duties under the Land Revenue Act after the demise of the Kathedar, the Land Revenue Authorities have to mutate the names of the successor's in interest who are the legal heirs. In that regard, necessary enquiry has to be made by the Land Revenue Authorities. The procedure is also prescribed in the Land Revenue Act and Rules to notify the persons concerned by public notice and individual notice about the intended or proposed mutations. After hearing objections, necessary Orders have to be passed and mutations have to be entered. May be that the entries made in the Land Revenue records may not be a conclusive proof by itself and any such entries are subject to the result of a Civil suit, the mutation entry carried out in Ex.P17 is one which is done by the Land Revenue Authorities in pursuance of the discharge of duties under the Land Revenue Act. In that view the said document becomes admissible and relevant under Section 35 of the Evidence Act. 11. The Defendants 2 and 3 although they are not witnesses to the marriage they speak about the relationship, the Plaintiff had with the family of the defendants and that her relationship is described as wife of Sharanappa. The first Plaintiff has also testified to the fact that the marriage of the second Plaintiff has been performed by the father of the second Plaintiff. P Ws 3 and 4 who are the relatives of the family of the Plaintiffs and the defendants having special knowledge of the relationship, their evidence becomes admissible under Section 50 of the Evidence Act. For convenient reference, the provisions of Section 50 is extracted here under: 50. P Ws 3 and 4 who are the relatives of the family of the Plaintiffs and the defendants having special knowledge of the relationship, their evidence becomes admissible under Section 50 of the Evidence Act. For convenient reference, the provisions of Section 50 is extracted here under: 50. Opinion on relationship, when relevant.-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, if any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XLV of 1860). Therefore clinchingly the Plaintiffs have established the relationship with Sharanappa as wife and daughter respectively. Therefore the finding of the trial Court in favour of the Plaintiff does not call for interference in appeal. 12. Having once held that the Plaintiffs are the wife and daughter of Sharanappa, the widow would be entitled to half share in the property. Since Sharanappa died in the year 1951, at that point of time, the Hindu Succession Act had not come into force. The Hindu Women's Right to Property Act, 1937 was in force. In view of the provisions of Section 3 in a notional partition a widow of a deceased co-parcener was entitled to his share having only a limited interest. After passing of Hindu Succession Act, the limited interest of the widow, gets ripened into a full estate by virtue of provisions of Section 14 and this proposition has been affirmed in the decisions of the Madras High Court in R. Narasimhachari Vs. Andalammal (Died) and Others, AIR 1979 Mad 31 . following the decision of the Supreme Court in Tulasamma v. Seshareddi ( AIR 1977 SC 1944 ). After the death of Sharanappa by notional partition the first Plaintiff would be entitled to 1/3 share and Shankarappa the father-in-law of the first Plaintiff who died intestate in his estate as a widow of a pre deceased son, she would be entitled to equal share. In that view the Plaintiffs would be entitled to 1/2 share together in the suit schedule property. In that view the Plaintiffs would be entitled to 1/2 share together in the suit schedule property. Accordingly, the appeal is dis.