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2008 DIGILAW 166 (BOM)

Lata Ekanath Patil v. Tanuja Ekanath Patil

2008-02-01

P.V.KAKADE

body2008
KAKADE P.V., J.:- 1. In this appeal preferred by the appellant lady who claims to be wife of deceased Eknath Patil, disputes the disbursement of the amount to respondent Nos. 1 and 2 who are children of the deceased Eknath by his first wife. 2. The appellant filed application under section 372 of the Indian Succession Act before the lower court on the ground that she was legally wedded wife of deceased Eknath and their relations as husband and wife existed till the death of Eknath who expired on 06-06-2005. Deceased Eknath was working as Goods Guard in Central Railway Bhusawal Division. Respondent Nos. 1 and 2, who are children of deceased Eknath begotten from his first wife since the deceased, have made claim of amount of Rs.7,30,536/- which was available for disbursement from the employer to legal successors of deceased Eknath. The appellant informed the Railway Authorities that she was entitled to the amount of deceased Eknath regarding service settlement dues and family pension on 13-06-2005. The Railway Authorities issued letter to her informing that the respondents were recorded as nominees of deceased and her name was not found to be on record and therefore, she initially filed R.C.S. No. 34/2006 in the Civil Court at Bhusawal for injunction against the Railway Authorities. However, subsequently it came to be withdrawn and the application under section 372 of the Indian Succession Act was filed. 3. The trial court after hearing both the sides, in the contesting petition under section 372 of the Indian Succession Act settled two issues and answered those in the negative to hold that the appellant had not proved that she was legally wedded wife of Eknath and they had legally performed ceremony of marriage. Consequently, it was held that she was not entitled to succession certificate as prayed for and dismissed the application. Hence the present appeal. 4. This court called for Record and Proceedings. Since the issue involved is singular namely the factum of legal marriage, I thought it fit to hear both the sides finally at this stage of admission, as Record and Proceedings is available. It was urged on behalf of the appellant that the factum of legal marriage was amply proved by sufficient evidence, oral as well as documentary, and therefore, the learned lower court should have held that the appellant was legally wedded wife of deceased Eknath. It was urged on behalf of the appellant that the factum of legal marriage was amply proved by sufficient evidence, oral as well as documentary, and therefore, the learned lower court should have held that the appellant was legally wedded wife of deceased Eknath. On the other hand, it was submitted on behalf of the respondents that there was no legal marriage in existence between deceased and the appellant and therefore, the lower court has rightly dismissed the claim of the appellant. 5. In order to prove the factum of legal marriage, as it appears from the record, the appellant has examined several witnesses and as brought on record certain documentary evidence. I have gone through the evidence of witnesses with the assistance of the learned Advocate for the appellant. Perusal thereof would show that the evidence of the relatives of the appellant leads us nowhere as it is not sufficient to inspire confidence to hold that there was legal marriage between the concerned parties. The evidence sought to be relied upon by the appellant regarding performance of marriage is that of one Padmakar Joshi (Exhibit-42). He has stated on oath that he has performed the marriage of appellant and Eknath on 25-07-1997 in Ganpati Mandir Sansthan, Tarsod, Taluka and District Jalgaon. According to him, he performed marriage as per Hindu religious rites with Vaidik procedure after performing Home, Saptapadi and other religious rites. In support of his evidence, he has referred to documents Exhibits 36, 37, and 38. Now these three documents are worthy to note. Document Exhibit 36 is dated 29-05-1998 which is titled as "Gandharva Vivah Dakhala" (Gandharva marriage certificate). This certificate is issued by Honorary Secretary of Ganpati Temple. Exhibit 37 is dated 19-06-2005 which shows, in similar fashion, that witness Padmakar Joshi performed Gandharva Vivah between the appellant and deceased Eknath on the given date and as a token of such Gandharva Vivah, he has made donation to the temple of Rs. 251/- by Receipt No. 864 dated 25-07-1997. This certificate is also given by the Auditor as well as the Secretary of the said temple. Turning back to the evidence of Padmakar Joshi, it is apparent from the cross examination that he has admitted that he used to perform marriages and entries of marriages performed by him were maintained by him on a Calender. Those calenders were maintained by him for three years period. Turning back to the evidence of Padmakar Joshi, it is apparent from the cross examination that he has admitted that he used to perform marriages and entries of marriages performed by him were maintained by him on a Calender. Those calenders were maintained by him for three years period. He has further admitted that calender of the year 1997, purporting to carry so called entry of marriage of appellant is destroyed by him. If it is so, the certificate at Exhibit 37 is rendered doubtful, because Exhibit 38 document is an extract of cash book showing that said Eknath gave donation of Rs. 251/- for the purpose of performance of his Gandharva Vivah. Now in Exhibit 38, the name of witness Padmakar Joshi is not at all mentioned. If Padmakar Joshi has destroyed calenders in the year 2000, we do not have any source as to how Secretary and Auditor of Ganpati Sansthan could issue certificate in so details including name of Padmakar Joshi to be the Priest who performed the marriage. There is altogether different angle from which the present dispute could be seen. Admittedly Eknath expired on 06-06-2005. Exhibit 37 Ganpati Mandir certificate was obtained by the appellant on 19-06-2005 i.e. 13 days after the death of Eknath. One wonders why the appellant felt need of such certificate to establish so called factum of marriage on 13th day of death of Eknath. This aspect itself raises clouds regarding the entire version of the appellant. 6. Another witness examined on behalf of the appellant is one Chudaman Patil who is said to have played role of middleman to settle the marriage. According to him, the marriage was performed as per Hindu religious rites. However, his cross examination is sufficient to show that he is in no knowledge about the difference between Gandharva type marriage and marriage as per Hindu religious rites. If it is so then nobody explains as to how the certificates Exhibits 36 and 37 as well as document at Exhibit 38 issued by the temple authorities categorically and repeatedly states that it was Gandharva Vivah and not marriage as per Hindu religious rites. If it is so then nobody explains as to how the certificates Exhibits 36 and 37 as well as document at Exhibit 38 issued by the temple authorities categorically and repeatedly states that it was Gandharva Vivah and not marriage as per Hindu religious rites. Now, the temple authorities are disinterested witnesses and therefore, their veracity cannot be and need not be doubted if they say that it was Gandharva vivah, then it has to be held that it was Gandharva vivah and not legal marriage as per Hindu Marriage Act as sought to be asserted by the appellant. So far as the other witnesses are concerned, as noted earlier, their testimonies are not sufficient to inspire confidence to conclude that there was legal marriage between the appellant and deceased and therefore, the factum of legal marriage still remains clouded with doubts. 7. Perusal of the judgment of the trial court shows that the learned Judge has taken stock of entire legal provisions in this regard including provision of Section 11 of the Hindu Marriage Act and relied upon rulings on the issue which in my view appears to be just,legal and proper and therefore, would brook no interference. 8. In the result, I hold that the appellant does not succeed in this appeal. Consequently, the appeal deserves to be dismissed and stands dismissed. In the circumstances, no order as to costs. Consequently, civil application in this appeal also stands disposed of.