Madhya Pradesh High Court
Mst.Sushila Devi & Anr. vs Balram & Ors on 13 August, 2013
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Second Appeal No.789/1999
Mst. Sushila Devi w/o. Jamuna Kalar.
Vs.
Balram s/o. Indramani Jaiswal & 11 Others.
Counsel for the appellants : Mr. Virendra Verma,
Advocate
Counsel for the respondents : None.
Present : Hon'ble Mr. Justice Alok Aradhe
J U D G M E N T
(13.08.2013) This appeal is by the plaintiffs, which was admitted by a Bench of this Court on the following substantial question of law :-
" Whether plaintiff Durgawati, being daughter of deceased Krishna Kumar, has a right of inheritance even if she is daughter from void marriage ?"
2. Facts leading to filing of the appeal briefly stated are that the plaintiff No.2 is the grand-daughter of defendant No.1. The Defendants No.2 and 3 are brothers of defendant No.1, whereas the defendants No.4 to 11 are uncles of defendant No.1. The plaintiff No.1 got married at 2 S . A . No . 7 8 9 / 1 9 9 9 the age of 10 years with one Jamuna Prasad in the year 1977. After death of Jamuna Prasad, she got married to Krishna Kumar son of defendant No.1 on 20 t h May, 1980. Out of the said wedlock, plaintiff No.2 was born. Krishna Kumar expired some time in the year 1984. It was pleaded in the plaint that the defendant No.1 is the owner of the suit property mentioned in schedule A to C in which Krishna Kumar had 1/4 t h share. It was further pleaded that plaintiffs and defendants were members of joint family. However, after death of Krishna Kumar, plaintiffs were thrown out of the house. The plaintiffs thereafter filed a suit seeking the relief of declaration that they are entitled to 1/4 t h share in the suit land and for possession.
3. The defendants No.1 to 8 and defendants No.9 and 11 filed written statement, in which inter-alia it was denied that the plaintiff No.1 was neither wife of Krishna Kumar nor plaintiff No.2 is daughter of Krishna Kumar, and the plaintiffs are not members of the joint family. An objection with regard to maintainability of the suit was also taken on the ground that since there is no partition among the defendants, therefore the claim of the plaintiffs is untenable. It was also pointed that one Amravati was wife of Krishna Kumar and suit land is self acquired property of Krishna Kumar.3
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4. The trial Court vide judgment and decree dated 17.7.1995 on meticulous appreciation of evidence on record inter-alia held that the plaintiff No.1 is legally wedded wife of deceased Krishna Kumar and the plaintiff No.2 is daughter of Krishna Kumar, and the defendants led no evidence to prove that suit lands are ancestral lands of defendants. It was further held that in the lands held by the defendant No.1, deceased Krishna Kumar had 1/4 t h share, therefore, the plaintiffs are entitled to 1/4 t h share in the suit lands and the suit was within limitation. The lower appellate Court vide impugned judgment and decree dated 15.4.1999 inter-alia held that the plaintiff No.1 has failed prove that she either got married to deceased Krishna Kumar or that the plaintiff No.2 is a legitimate daughter of Krishna Kumar. It was further held that the suit lands were recorded in the names of defendant No.1 therefore, the same is self-acquired property of defendant No.1. It was further held that the plaintiffs are not entitled to 1/4 t h share of the suit lands. Accordingly, the claim of the plaintiffs was dismissed.
5. Learned counsel for the appellants submitted that the plaintiffs had proved the marriage in accordance with the custom prevalent in the community. In this 4 S . A . No . 7 8 9 / 1 9 9 9 connection, learned counsel for the appellants has invited the attention of this Court to paragraph-5 of cross- examination of defendant No.1. It was further submitted that even assuming that the plaintiff No.2 was born from void marriage, yet she was entitled to share in the suit property which was held to be self acquired property of deceased Krishna Kumar by the lower appellate Court. In support of aforesaid submissions, learned counsel for the appellant has placed reliance on the decision of Supreme Court in the case of Bharatha Matha & Anr. Vs. R. Vijaya Renganathan & Ors. , AIR 2010 SC 2685.
6. I have considered the submissions made by learned counsel for the appellants and have perused the record. It is well settled in law that custom must possess the conditions of antiquity and certainty and there has to be clear and unambiguous evidence on record in this behalf. [See : Pushpavathi Vijayaram Vs. P. Visweswar, AIR 1964 SC 118, Vinayasinhji Vs. Natwarsinhji, AIR 1988 SC 247, Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah, AIR 2001 SC 938].
7. Section 16 of the Hindu Marriage Act, 1955 has been amended by the Amendment Act No.68 of 1976. The Supreme Court in the cases of Gurnam Kaur (Smt) and 5 S . A . No . 7 8 9 / 1 9 9 9 another Vs. Puran Singh and Others , (1996) 2 SCC 567, Parayankandiyal Eravath Kanapravan Kalliani Amma Vs. K. Devi , (1996) 4 SCC 76, Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others, (2003) 1 SCC 730, Neelamma and Others Vs. Sarojamma and Others, (2006) 9 SCC 612 by interpreting the amended section 16(1) of the Hindu Marriage Act, 1955 has held that even a child, though illegitimate, has right to succeed to the property of his father. Similar view has been taken in Bharatha Matha ( supra) .
8. It is equally well settled legal position that the first appellate Court while reversing the finding of the trial Court must meet the reasonings on which the finding of the trial Court is based. [See : Santosh Hazari Vs. Purushottam Tiwari, (2001) 3 SCC 179, Nopany Investments (P) Ltd. Vs. Santokh Singh, (2008) 2 SCC 728 and Nicholas Vs. Menezes Vs. Joseph M. Menezes, (2009) 4 SCC 791]. The High Court in second appeal can interfere with findings of fact provided that findings are perverse. Re-appreciation of evidence is permissible in exceptional cases. Krishna Mohan Kul alias Nani Charan Kul and another Vs. Pratima Maity and others, (2004) 9 SCC 468. Arumaraj Devadhas Vs. K. Sundaram Nadar, (2009) 17 SCC 467.6
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9. In the backdrop of aforesaid legal position, the evidence on record may be seen. The plaintiffs had produced the marksheet Ex.P/17 of plaintiff No.2, in which she has been described to be daughter of deceased Krishna Kumar. The pass-book Ex.P/18 issued by Co- operative Service Society on 17.2.1982 describes the plaintiff No.1 as wife of deceased Krishna Kumar and Ex.P/19 is the document which contains recital that marriage between plaintiff No.1 and deceased Krishna Kumar was performed on 20.5.1980. The plaintiff has examined scribe of the aforesaid document as Jagdish Prasad (PW-2). Similarly, witness to the marriage ceremony Udaybhan has been examined as Plaintiffs' Witness No.3. It is also pertinent to mention here that the defendant No.1, who is DW-1 has admitted in paragraph-5 of his cross- examination that as per the custom prevalent in the community, to which parties being marriage can be performed by writing a document. Thus, execution of Ex.P/ 19 has duly been proved by the evidence of Jagdish Prasad (PW-2), Udaybhan (PW-3).
10. However, the trial Court has discarded the document Ex.P/19 simply on the ground that it contains signature of Krishna Kumar whereas the sale-note allegedly contains Krishna Kumar's thumb impression. It has been 7 S . A . No . 7 8 9 / 1 9 9 9 further held that no evidence has been led by the plaintiffs to prove as per custom plaintiff No.1 got married with Krishna Kumar. However, while recording the aforesaid finding, the lower appellate Court has failed to take into account the other documentary evidence on record namely Ex.P/17 and Ex.P/18 as well as testimonies of the witnesses of Jagdish Prasad (PW-2) and Udaybhan (PW-3). The lower appellate Court has also not considered the admission made by the defendant No.1 in paragraph-5 of his cross- examination that as per the custom prevalent in the community, marriage can be performed by execution of the document. Thus, the lower appellate Court in casual and cavillier manner has reversed the finding recorded by the trial Court. The finding recorded by the lower appellate Court that the plaintiff No.1 is not legally wedded wife of deceased Krishna Kumar and the plaintiff No.2 is not daughter of Krishna Kumar cannot but be said to be perverse in the state of evidence on record.
11. For the aforesaid reasons, it is held that the plaintiff No.1 is legally wedded wife of deceased Krishna Kumar and the plaintiff No.2 is daughter of deceased Krishna Kumar and they are entitled to 1/4 t h share in the suit lands. Accordingly, the substantial question of law is answered.
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12. In the result, the judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is restored. The appeal is allowed with costs.
(Alok Aradhe) Judge RC