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Madhya Pradesh High Court · body

2014 DIGILAW 1453 (MP)

Meera Bai v. Ramesh Guru

2014-11-11

N.K.GUPTA

body2014
JUDGMENT 1. The appellant has preferred the present appeal being aggrieved with the judgment and decree dated 30.10.2002 passed by the First Additional District Judge, Sagar in Civil Suit No.30-A of 2002 whereby her suit for declaration and injunction was dismissed. 2. The facts of the case in short are that the appellant has filed a civil suit before the District Court, Sagar that she was widow of one Santosh Guru, who expired in an electrical accident on 14.6.1999 whereas, he was working as Line Helper in MPEB. After his death a sum of Rs.2,80,000/- was due in three insurance policies of salary saving scheme. The respondents were the nominees of the deceased Santosh Guru and they were entrusted to receive the Insurance amount from the department and, therefore, a suit for declaration and injunction was filed that it be declared that being a widow of Santosh Guru the appellant was entitled to get a sum of Rs.2,80,000/- and a perpetual injunction was sought that the respondents be prohibited to get the said sum. 3. The respondents in their written statement denied the claim of the appellant. They denied that the appellant was married to their brother Santosh Guru. After death of the deceased the department gave the remaining salary of 14 days of the deceased Santosh Guru and funeral expenses of Rs.1500/- to the respondents. Initially a talk took place between the father of the appellant relating to marriage of deceased Santosh Guru but, after arrangement of engagement ceremony, marriage could not take place because the appellant was already married with one Jamna Prasad Chaturvedi and had a female child. Consequently, it was prayed that the suit filed by the appellant may be dismissed. 4. The learned Additional District Judge has framed the issues as to whether the appellant was widow of the deceased Santosh Guru, whether she was entitled to get the insurance amount of Rs.2,80,000/, whether she was already married with Jamna Prasad Chaturvedi and whether suit was filed without any basis. After considering the evidence adduced by the parties the trial Court dismissed the suit. 5. I have heard learned counsel for the parties at length. 6. In the present case the respondents have denied the marriage of the appellant with the deceased Santosh Guru. After considering the evidence adduced by the parties the trial Court dismissed the suit. 5. I have heard learned counsel for the parties at length. 6. In the present case the respondents have denied the marriage of the appellant with the deceased Santosh Guru. Also during the final argument the learned counsel for the respondents has submitted that declaratory suit filed by the appellant was not maintainable due to two reasons, firstly that necessary parties were not included in the suit and secondly no appropriate consequential relief was sought by the appellant and, therefore, she was not entitled to get the declaratory decree. The learned counsel for the appellant has submitted that the respondents did not take any such ground before the trial Court and, therefore, such grounds cannot be raised at this stage. However, the factual and legal position of the pleadings and case are to be considered one by one. 7. The appellant examined herself as PW1 along with Devi Prasad (PW3) as a priest, Makhan Arora (PW4) as a photographer, Jaishankar Prasad (PW4) and Jamna Prasad (PW5) as witnesses who, attended the marriage ceremony and Majboot (PW2) who, transported the luggage relating to marriage from Village Mohar to Village Bareli in his tractor trolley. On the other hand the respondents have examined Ram Dayal Dubey (DW1), Awadh Narayan (DW2) Ramesh (DW3) and Suresh Guru (DW4) to contradict the evidence given by the appellant. The appellant has filed a copy of the invitation card Ex.P-11 and a receipt of payment of Rs.900/-given to one Majboot Singh. Majboot (PW2) has stated that he took the luggage relating to marriage from Village Mohar to Village Bareli but, in the cross-examination he has accepted that he had relations with father of the appellant since 20-25 years. He was not even aware of the name of the appellant. He has further accepted that one year prior to his statement he met with the Advocate of the appellant and the learned Advocate told him about the facts which he had to say before the Court. The receipt Ex.P-11 is not a routine receipt. It is a receipt prepared by typing. Looking to the text and typing of the receipt, it appears that it was prepared in back date at the time of filing of the suit. The receipt Ex.P-11 is not a routine receipt. It is a receipt prepared by typing. Looking to the text and typing of the receipt, it appears that it was prepared in back date at the time of filing of the suit. The trial Court has rightly disbelieved the testimony of the witness Majboot that he transported any luggage relating to marriage of the appellant from Village Mohar to Village Bareli. 8. Meera Bai, Devi Prasad, Jamna Prasad and Jaishankar Prasad were examined as witnesses of the marriage. In the statement of the appellant Meera Bai she has stated that the marriage was performed by Pandit Devi Prasad only but, in the cross-examination she has accepted that Devi Prasad was husband of her cousin. Devi Prasad initially claimed that he performed the marriage of the deceased Santosh with Meera Bai. However, in the cross-examination he could not tell about the rituals and marriage hymns required to be read at the time of marriage and he shifted his responsibility to one Hari Sharan that the marriage was performed by Hari Sharan and the witnesses who, were examined after Devi Prasad have stated that the marriage was performed by Devi Prasad and Hari Sharan. However, Pandit Hari Sharan was not examined before the trial Court. If marriage was performed by Pandit Hari Sharan then this fact must be in the knowledge of the appellant but, she did not mention about such a fact in her statement and therefore, it is not established by the appellant herself that marriage was performed by Pandit Hari Sharan. It appears that the witness Devi Prasad could not tell about the procedure followed by the Pandit while performing the marriage and, therefore, he shifted the responsibility upon someone else. Thereafter the witnesses improved the fact as developed by the witness Devi Prasad. A material contradiction is visible between the statements of the appellant and her witnesses Devi Prasad and Jaishankar Prasad. It is apparent that Devi Prasad was not a competent Pandit to perform any marriage. He could not show any document of a particular year that he had performed the marriages of some reputed persons or other persons. A material contradiction is visible between the statements of the appellant and her witnesses Devi Prasad and Jaishankar Prasad. It is apparent that Devi Prasad was not a competent Pandit to perform any marriage. He could not show any document of a particular year that he had performed the marriages of some reputed persons or other persons. He was brother-in-law of the appellant and therefore, if he was Pandit to perform the marriage then he must have also performed the marriage of brother of the appellant whereas, he could not tell the name of wife of brother of the appellant or father of the bride of the appellant's brother. After considering the evidence, it appears that he never performed the marriage of anyone. Therefore, his claim that he performed the marriage of the appellant and the deceased Santosh appears to be a falsehood. Consequently, the testimony of Jamna Prasad (PW5) and Jaishankar Prasad (PW4) also appears to be doubtful that they saw the marriage performed by Pandit Devi Prasad. Jaishankar Prasad claims that he was present at the time of marriage but, he could not tell as to whether Devi Prasad (PW3) read the marriage hymns in Hindi or Sanskrit. If he was present in such a marriage then he should be certain about the fact that various marriage hymns were read in Sanskrit or Hindi. Jamna Prasad (PW5) is father of the appellant and he could not state about the details of performance of the marriage done by the concerned Pandit. He denied that he was not related with Devi Prasad whereas, the appellant has accepted that Devi Prasad was the husband of her cousin. Hence the eye witnesses could not prove that the marriage of the appellant and the deceased Santosh Guru was ever performed. Nobody could prove that ceremony of Saptapadi took place between the appellant and the deceased. 9. The appellant has filed photographs in the case.The photographer Makhan Arora (PW4) could show only four negatives. However, six photographs were exhibited as Exs.P-1 to P-6. The respondents have filed the photographs Exs.D-1 and D-2 to show that the document Ex.D-1 was the original photograph and the document Ex.D-2 was a derived copy from the photograph Ex.D-1 with the pretext that the photographs Exs.P-1 to P-6 were prepared photographs from the original photographs. However, six photographs were exhibited as Exs.P-1 to P-6. The respondents have filed the photographs Exs.D-1 and D-2 to show that the document Ex.D-1 was the original photograph and the document Ex.D-2 was a derived copy from the photograph Ex.D-1 with the pretext that the photographs Exs.P-1 to P-6 were prepared photographs from the original photographs. Makhan Arora (PW4) has accepted that in June 2000 when Jamna Prasad Tripathi (PW5), father of the appellant, demanded photographs he did not have any negatives because negatives were given to one Chandra Shekhar Tiwari, he could not show any reason as to how he got four negatives of such photographs. He has accepted that by some photographs copy of the photographs and even negatives can be prepared. Under such circumstances, it could not be proved that negatives Exs.P-1 to P-4 were the original negatives or he prepared the same on the basis of the photographs. On comparison of the photographs Ex.P-2 with photograph Ex.D-1, it appears that the photographs Ex.P-1 to P-6 are prepared photographs from the original photograph and image in such photograph is not so sharp as shown in the photographs Ex.D-1. Also it is accepted by the respondents that an engagement ceremony took place between the appellant and the deceased. Therefore, such photographs could be of that engagement ceremony. Makhan Arora has stated that he took 20-22 photographs on that day. Devi Prasad (PW3) has stated that when “bhanwar” (Saptapadi) took place between the appellant and Santosh Guru, photographs were taken. If a marriage took place between the appellant and Santosh Guru and photographs of bhanwar ceremony were taken then as to why such photographs of bhanwar ceremony were not placed before the trial Court. 10. When it is accepted by the respondents that an engagement ceremony took place between the parties then such photographs could be the photographs of that function. If Makhan Arora took 20-23 photographs in past relating to the marriage ceremony then photographs relating to bhanwar (Saptapadi) ceremony could have been filed before the Court. Similarly at the time of kanyadan,Jamna Prasad, father of the appellant, must have been present in the photographs but, no such photograph is produced before the trial Court to show that father of the appellant was present in any of the ceremonies. Hence by filing of 5-6 photographs it cannot be said that those photographs were related to the marriage ceremony. Hence by filing of 5-6 photographs it cannot be said that those photographs were related to the marriage ceremony. Those photographs could be of engagement ceremony and therefore, with the help of such photographs it was not proved that the marriage of the appellant took place with Santosh Guru. 11. In the present case according to the invitation given, marriage was performed in the house of one Awadh Narayan (DW2). Awadh Narayan (DW2) is examined from the side of the defence and he refused that such ceremony was performed in his house. Possibility cannot be ruled out that Awadh Narayan was a near relative of the respondents and therefore, he has taken such a somersault but the plaintif has to stand its case on its own evidence. The appellant could not prove that her valid marriage took place with Santosh Guru. 12. If a woman resides with a particular person for a lengthier period then it may not be required to prove that her marriage took place in an appropriate manner. However, in the present case the appellant claims that she resided with the deceased Santosh Guru only for 13 months and therefore, for such a small period, it cannot be presumed that she was a wedded wife of the deceased Santosh Guru. Except for the appellant Meera and her father Jamna Prasad there is no witness to establish that the appellant ever resided in the house of Santosh Guru or she resided in his house till treodashi ceremony after his death. Hence it is not proved that the appellant ever resided in the house of Santosh Guru. 13. If a person claims about a marriage with his or her spouse then it is to be proved that a ceremony of Shaptadi or bhanwar was performed by a Pandit between such a pair and if such customary procedure is not proved then it cannot be said that such person was married to her or his spouse. In case of Bhaurao Shankar Lokhande v. State of Maharashtra [ AIR 1965 SC 1564 ], it is held that to prove a valid Hindu marriage, two ceremonies i.e. invocation before scared fire and Saptapadi are to be proved. In the present case, the appellant has failed to prove that she was the wedded wife of the deceased Santosh Guru. In case of Bhaurao Shankar Lokhande v. State of Maharashtra [ AIR 1965 SC 1564 ], it is held that to prove a valid Hindu marriage, two ceremonies i.e. invocation before scared fire and Saptapadi are to be proved. In the present case, the appellant has failed to prove that she was the wedded wife of the deceased Santosh Guru. The trial Court has rightly found that the appellant could not prove her marriage with Santosh Guru. 14. When it is not established that the appellant was the wife of Santosh Guru then she was not entitled for any declaration or injunction in her favour. The learned counsel for the respondents have raised two objections about the maintainability of the declaratory suit. Though such objections have not been raised before the trial Court but, such objections are legal objections and those could be raised even in the first appeal. Therefore, it is necessary to decide such objections. The first objection relating to necessary party appears to be correct. For declaratory decree it is necessary that a person be made party who denied the right of the plaintif. In the present case, the appellant gave a notice Ex.P-7 to Branch Manager, LIC, Sagar not to disburse policy amount to the respondents. It was apparent that the amount was under control of Branch Manager, LIC Sagar. On giving a notice to such Branch Manager he did not pay the amount of compensation or insurance amount to the appellant and, therefore, apparently he had also denied the right of the appellant. Similarly, the appellant has sought the various dues from the employer of the deceased Satish Guru i.e. MPEB and it is also apparent that the oficers of MPEB did not make any payment to the appellant and, therefore, they had also denied about the rights of the appellant. Hence for a declaratory suit the oficers of Life Insurance Corporation as well as MPEB were the necessary parties in the case otherwise, the relief sought by the appellant was futile in nature. If the respondents are directed not to take the amount from LIC or MPEB then no consequential benefit was available to the appellant. 15. The learned counsel for the appellant has submitted that after getting a declaratory decree the appellant can file a claim before the LIC and MPEB. If the respondents are directed not to take the amount from LIC or MPEB then no consequential benefit was available to the appellant. 15. The learned counsel for the appellant has submitted that after getting a declaratory decree the appellant can file a claim before the LIC and MPEB. However, such contention cannot be accepted in the light of the provision of Order 2 rule 2 of CPC. In this context the text of Order 2 rule 2(2) and 2(3) may be read as under : “2. Suit to include the whole claim. -- (2) Relinqushment of part of claim. -- Where a plaintif omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several relief. -- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” It would be apparent from that provision that if the appellant had not sought the relief of payment of the amount then a subsequent suit was barred for such demand after getting a declaratory suit. Hence, the oficers of LIC and MPEB were necessary parties in the case and without impleading them as parties, suit filed by the appellant could not be decreed. 16. Similarly, the second objection raised by thelearned counsel for the respondents is also acceptable that no appropriate consequential relief was sought in a declaratory suit and therefore, no declaratory decree can be given in favour of the appellant. The provision of section 34 of the Specific Relief Act may be read as under : “34. Discretion of Court as to declaration of status or right. The provision of section 34 of the Specific Relief Act may be read as under : “34. Discretion of Court as to declaration of status or right. -- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion made therein a declaration that he is so entitled and the plaintif need not, in such suit, ask for any further relief : Provided that no Court shall make any such declaration where the plaintif, being able to seek further relief than a mere declaration of title, omits to do so.” In proviso of section 34 it was necessary for the appellant to seek further relief which is available after the declaration. If she sought a declaration that she was entitled to get a sum of Rs.2,80,000/- then the consequential relief would be that she should have sought the payment of money to her. If the respondents were prohibited to withdraw the money from LIC or MPEB then still by mere declaration, no fruit was received by the appellant and in the light of the provisions under Order 2 rule 2 of CPC, she could not file a further claim for payment of the amount and, therefore, relief of injunction sought against the respondents was not an appropriate consequential relief after declaration. Hence, it is apparent that the appellant could demand the payment of the amount as a consequential relief but, she did not seek any further relief, no Court shall make any declaration in favour of the plaintif according to the proviso of section 34 of the Specific Relief Act. Hence, if the appellant would have proved that she was wife of the deceased Santosh Guru still she could not get any declaratory decree in her favour without any appropriate consequential relief. 17. Actually, it was a dispute of liquidated sum between brothers of the deceased and alleged wife of the deceased and therefore, there was no need to file a civil suit but, the appellant should have filed an application for succession certificate then she could get the entire relief, if she was found to be the legal representative of the deceased Santosh Guru. On the basis of the aforesaid discussion, the appellant could not get any relief in her civil suit either on the basis of the facts or on the legal position of the case. The trial Court has rightly dismissed the suit filed by the appellant. There is no reason so that the appeal filed by the appellant may be accepted. Consequently, the appeal filed by the appellant is hereby dismissed. There is no order as to costs. .............