Ranganath
Parmeshwar Panditrao Mali & Anr Vs. Eknath Gajanan Kulkarni & Anr
[1996] INSC 62 (12
January 1996)
Kuldip
Singh (J) Kuldip Singh (J) Hansaria B.L. (J) Majmudar S.B. (J) G.B. Pattanaik,
J.
CITATION:
1996 AIR 1153 1996 SCC (2) 226 JT 1996 (1) 173 1996 SCALE (1)208
ACT:
HEAD NOTE:
Leave
granted.
The
appellants are the plaintiffs who filed a suit seeking injunction against the
respondents in the Court of Civil Judge, Junior Division in the district of Ahmednagar.
The
said suit was registered as Suit No. 200 of 1985. It was alleged that the
common ancestor Bhanudas had two sons Panditrao and Gajanan. Plaintiffs are the
sons of Panditrao from his marriage with Shevantabai and the defendants are the
sons of Gajanan. The further case of the plaintiffs was that there had been a
petition between Panditrao and Gajanan and the suit property admeasuring 3.18
hectares in village Kongoni had been alloted to the heirs of Panditrao.
Panditrao
died in the year 1976 leaving behind his sons the plaintiffs and the widow Shevantabai.
Shevantabai died in 1977 and thereafter the plaintiffs are in continuous
possession of the suit property. The defendants however managed to get their
names entered in the revenue record by way of mutation. Against the said order
of mutation the plaintiffs preferred an appeal and the appellant authority had
set aside the order of mutation in favour of the defendants. But still the
defendants having obstructed the plaintiffs' possession, the plaintiffs filed
the suit seeking relief of injunction praying that the defendants be restrained
from obstructing the peaceful possession of the plaintiffs. The defendants
filed written statement denying the averments made in the plaint and took the
stand that the plaintiffs are not the legal heirs of Panditrao, they also took
the stand that the property is not ancestral property of the plaintiffs as
alleged and the plaintiffs are never in possession of the same. According to
defendants they being the sons of brother of Panditrao are the only legal heirs
and said Panditrao had died without marrying anybody. On these pleadings the
learned Trial Judge framed three issues and recorded the following findings:
1)
Plaintiffs have established the fact that Shevantabai is the wife of Panditrao
which is corroborated from the admission of defendant no. 1 that Shevantabai
was living with Panditrao and she was looking after him while he was ill.
2)
Plaintiffs are sons of Shevantabai who are begotten from Panditrao.
3) The
plaintiffs are legal heirs of Panditrao and are entitled to claim the property
which came to Panditrao on partition between Panditrao and father of the
defendants.
4) The
disputed property being the separate property of Panditrao, plaintiffs are the
only heirs to the same. Plaintiff No. 1 is residing in the suit land by
erecting vasti and it is admitted that after death of Panditrao plaintiffs is
in continuous possession of the suit land.
With
these conclusions, the suit was decreed with the declaration that the suit land
belongs to Panditrao, the father of the plaintiffs and plaintiffs are the legal
heirs and defendants were restrained from obstructing the peaceful possession
of the plaintiffs over the suit land.
The
defendants in the aforesaid suit had also filed a suit for injunction which had
been registered as Civil Suit No. 22 of 1985 and the said suit was accordingly
dismissed.
Two
appeals were preferred against both the judgments which were registered as
Civil Appeal No. 199/88 and Civil Appeal No. 200/88. The learned Additional
District Judge reversed the findings and conclusion of the Trial Judge and
allowed these appeals. The Appellate Court came to hold that there has been no
evidence of marriage between Panditrao and Shevantabai though Shevantabai was
living with Panditrao and both of them were having illegitimate relationship.
He further held that mere residing together as husband and wife does not ipso
facto prove that their marriage is legal and valid and therefore Ranganath and
others, plaintiffs in Regular Civil Suit No. 200 of 1985 are not entitled to
inherit the property of deceased Pandit. The lower Appellate Court further came
to the conclusion that since the plaintiffs in Civil Suit No. 200 of 1995 are
not entitled to succeed to the property of Panditrao, the prayer for injunction
could not have been granted. With these conclusions the judgment and decree of both
the suits having been reversed and the appeals having been allowed, the matter
was carried in Second Appeal to the High Court which were registered as Second
Appeal Nos. 209 of 1994 and 210 of 1994. The second Appellate Court agreed with
the learned Additional District Judge and came to hold that since Shevantabai
was 'Mali' by caste while Pandit was
'Brahmin' and there was no marriage between them and Shevantabai must be held
to be his concubine and the lower appellate court rightly held that the factum
of marriage had not been proved. Negating the contention with regard to
presumption of a valid marriage between Shevantabai and Panditrao from the fact
that they have been living together as husband and wife for a continuous and
long period, the second appellate court held that such presumption would arise
if there is evidence on record to prove the factum of marriage and the fact of
staying together with the concubine as husband and wife but since there is no
evidence of factum of marriage, question of presumption being attracted does
not arise.
Consequently
it was held by the second appellate court that the learned Additional District
Judge rightly held that the respondents are entitled to a decree of injunction
in their suit No. 22 of 1985 and ultimately confirmed the judgment and decree
of the learned Additional District Judge. It is against this judgment and
decree of the second appellate court, the present appeal by special leave is
directed.
The
learned counsel for the appellants contended that the lower appellate court as
well as the High Court committed serious error by not relying upon the
presumption of a valid marriage when admittedly Panditrao and Shevantabai lived
together for long years as husband and wife and said fact was admitted by the
defendants. He further contended that non-consideration of this admission by
the defendant vitiate the ultimate conclusion on the question of relationship
between Panditrao and Shevantabai.
Accordingly
he contended that the said conclusion is liable to be reversed and consequently
the plaintiffs in Regular Civil Suit No. 200 of 1985 must be held to be legal
heirs of Panditrao and Shevantabai. The learned counsel appearing for the
respondents on the other hand contended that the lower appellate court as well
as the High Court having considered and recorded that there was no valid
marriage between Panditrao and Shevantabai, it would not be proper for this
Court to exercise power under Article 136 of the Constitution to interfere with
the conclusion arrived at by the two courts below and therefore the judgment
and decree of the two courts below are immune from interference.
In
view of the rival stand of the parties the first question that arises for
consideration is whether merely because the factum of marriage has not been
established, was it open for the lower appellate court as well as the High
Court to set aside the finding of the Trial Judge, which finding was based on
not only arising out of the legality of a presumption from the fact of living
together as husband and wife but also the admission of defendant no. 1 that Shevantabai
was residing with Pandit in the Wada in village for long years and the
plaintiff no. 1 is son of Shevantabai? It is no doubt true that a finding
arrived at on a question of fact by the lower appellate court or the High Court
is not ordinarily interfered with by this Court under Article 136 of the
Constitution. But if such finding is recorded by non consideration of some
vital piece of evidence or admission of the adversary, then this Court will be
fully justified in interfering with the finding in question. In the case in
hand, the consistent evidence being that Panditrao and Shevantabai were living
together for long years as husband and wife and plaintiff no. 1 is their son
and the defendant also admitted the aforesaid fact but contended that there had
been no valid marriage between Panditrao and Shevantabai, a legal presumption
does arise, though the presumption is rebuttable and this presumption has not
been rebutted by the defendant. It has been held by this Court in the case of
S.P.S. Balasubramanyam vs. Surutayan, (1994) 1 SCC 460 that if a man and woman
live together for long years as husband and wife then a presumption arises in
law of legality of marriage existing between the two. But the presumption is rebuttable.
The High Court, committed an error of law in recording a finding that the
presumption would arise only if the factum of marriage is proved. We are afraid
if factum of marriage is proved, the question of raising presumption does not
arise. The lower appellate court on the other hand has merely entered into the
arena of conjecture and surmises by interfering with the finding of the Trial
Judge without considering the relevant and material evidence on the point. In
this view of the matter findings arrived at by the lower appellate court as
well as by the High Court on the question of relationship of Panditrao and Shevantabai
cannot be sustained in law. In our considered opinion a legal presumption
arises on the admitted fact that they were living together as husband and wife
and the said presumption has not been rebutted. We would accordingly set aside
the findings of the High Court as well as the findings of the Additional
District Judge on this score and restore the finding of the Trial Judge on this
core and hold that Shevantabai was the wife of Panditrao and plaintiffs having
been begotten by Shevantabai from Panditrao are the legal heirs over the property
of Panditrao and would succeed to the said property.
The
next question arises for consideration is whether prayer for injunction granted
by the Trial Court in favour of the plaintiffs would have been reversed by the
lower appellate court? We find from the judgment of the lower appellate court
that instead of considering the evidence and the consequential finding of
possession in favour of the plaintiff by the Trial Court the lower Appellate
Court merely reversed the judgment once coming to the conclusion that the
plaintiffs are not the legal heirs of Panditrao. In fact there is no
consideration of evidence of possession by the lower Appellate Court or by the
High Court. In that view of the matter it would not be proper for this Court to
finally conclude the question and on the other hand it would be proper to remit
the matter to the lower Appellate Court.
In the
aforesaid circumstances the judgment and decree of the High Court as well as
those of the Additional District Judge, Ahmednagar are set aside. Question of Shevantabai
being the wife of Panditrao and the plaintiffs are legal heirs of Panditrao is
concluded and would not be reopened.
But
the lower appellate court would re-consider the evidence and the findings on
the question of possession to decide the relief of injunction.
The
appeals are allowed with the aforesaid directions.
The
two impugned Second Appeal Nos. 209/94 and 210/94 are remitted back to the
lower Appellate Court for decision of the appeals in accordance with law,
bearing in mind the observations made above, after giving opportunity of
hearing. Parties to bear their own costs.
Back
Pages: 1 2