Allahabad High Court
Smt. Mannawati And Others vs Zila Panchayat Shahjahanpur And Others on 18 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 1770
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on 4.12.2019
Delivered on-18.01.2020.
Court No. - 53
Case :- SECOND APPEAL No. - 989 of 2005
Appellant :- Smt. Mannawati And Others
Respondent :- Zila Panchayat Shahjahanpur And Others
Counsel for Appellant :- B.B. Jauhari
Counsel for Respondent :- Standing Counsel,Anupam Tripathi,Bashir Ahmad Khan,Harish Chandra,T.S. Dabas,Standing Counsel
Hon'ble Vivek Agarwal,J.
Heard Sri B.B. Jauhari, learned counsel for the appellants, Sri Anupam Tripathi, learned counsel for the respondent no.3 and Sri Moti Lal, learned Standing Counsel for the State.
This Second Appeal under Section 100 C.P.C. has been filed by the plaintiffs being aggrieved by judgment and decree dated 05.11.2005 passed by the Court of Additional District Judge, Court No.8, Shahjahanpur in Civil Appeal No.43 of 2001, Smt. Mannawati and others Vs. Zila Panchyat and others by which the learned Appellate Court has dismissed the appeal of the appellants and has confirmed the order of the Trial Court and the judgment and decree dated 18.07.2001 passed in original Suit No.378 of 1997 by the Additional Civil Judge, (Junior Division), Shahjahanpur dismissing the suit of the plaintiff.
Plaintiff had filed a suit alleging that plaintiff no.-1, Smt. Mannawati is the legally married wife of Ram Saran Tripathi who was an employee of the respondent no.5 and appellant nos.1/1, 1/2 and 1/3 are her children. It was alleged that Smt. Mannawati was granted maintenance against Ram Saran Tripathi under Section 125 Cr.P.C. Ram Saran Tripathi had challenged such order in revision which was registered as Criminal Revision No.69 of 1988 wherein on the basis of a compromise, revision was dismissed inasmuch as revision-petitioner Ram Saran Tripathi had agreed to pay maintenance to Mannawati-respondent. It is submitted that name of son of Mannawati, Mahesh Chandra Tripathi in High School Mark-sheet and other certificates shows Ram Saran Tripathi as his father, therefore the respondents could not have denied the benefit of family pension to Smt. Mannawati on death of Ram Saran Tripathi.
Defendant contested this claim and submitted that Reshma Devi could prove herself to be legally wedded wife of Ram Saran Tripathi. She could also prove from the document that a nomination was made in her name and, therefore, appellant-plaintiff was not entitled to claim family pension.
It is the case of of the appellant that learned courts below failed to appreciate that they had wrongly placed reliance on the nomination allegedly made in favour of Reshma Devi as there were cuttings and over-writings without being autheticated by Ram Saran Tripathi. It is also averred that two children were born out of the wedlock. Marriage was performed prior to 1956 when Hindu Marriage Act was enacted and these two children are Mahesh Chandra born in 1956 and Ramesh Chandra born in 1960 and, therefore, as per the provisions contained in Family Pension Rules, Mannawati is entitled to the family pension.
It has come on record that Ram Saran Tripathi was working as a Assistant Teacher in Junior High School, Dhakiya and was an employee of defendant no.1. He was getting pension after his retirement and, therefore, after Ram Saran Tripathi, appellant claimed that by virtue of her being a widow of Ram Saran Tripathi, she is entitled to family pension, which has not been sanctioned by the Competent Authority. It is also submitted that even if it is presumed that Rshma Devi is also a wife of Late Ram Saran Tripathi, then the fact is that plaintiff-Mannawati being first wife is entitled to family pension in terms of Rule-3 of Pension Scheme, 1965.
It is an admitted position that Ram Saran Tripathi died on 25.11.1996. Though, it is also admitted that Mannawati was earlier married to Rajaram whereas Reshma Devi was married to Ram Saran Tripathi 45 years prior to his death at village-Khandahar, Tehsil-Jalalabad, District-Shahjahanpur and, therefore, during his service period, Ram Saran Tripathi had nominated Reshma Devi for various purposes including family pension.
The Courts below framed several issues including whether Mannawati is widow of Ram Saran Tripathi, whether the suit is barred by provisions contained in Section 80 C.P.C., whether the suit is barred by provisions contained in Section 38/41 of the Specific Relief Act or is barred by provisions contained in Order-7, Rule-11 C.P.C. etc. and after appreciating evidence which has come on record found that plaintiff-Mannawati has maintained herself to be wife of Rajaram as can be seen from the documents available on record, which reveals that in the voter list, name of Mannawati is shown as wife of Rajaram.
This Voter List is of the year 1993 wherein name of Krishna Devi is shown to be wife of Mahesh Chand whereas that of the plaintiff-Mannawati as wife of Rajaram. Similarly, in the Passbook issued by Shahjahanpur Sadhan Sahkari Samiti Ltd., Mannawati has been shown as widow of Rajaram.
Similarly, in the certificate issued by Rajya Sahkari Bhoomi Vikas Bank Ltd. Mannawati has been shown as widow of Rajaram. Therefore, merely on the basis of a case contested under Section 125 Cr.P.C., appellant-plaintiff is not entitled to claim herself to be wife of Ram Saran Tripathi.
At this stage, learned counsel for the appellant has placed reliance on the judgment of Supreme Court in case of Ranganath Parmeshwar Panditrao Mali and another Vs. Eknath Gajanan Kulkarni and another as reported in AIR 1996 SC 1290 wherein, it has been held that if a couple is living together, then there will be a presumption of marriage under Section 112 of the Evidence Act, and the finding of the High Court that such presumption would arise only when factum of marriage is proved is not proper.
Similarly, reliance has been placed on the judgment of Supreme Court in case of Chowdegowda @ Dorji (dead) and others Vs. C. Nagaraju and others as reported in AIR 1996 SC 3485 wherein, it has been held that if a couple lived together as husband and wife and appellant came to be born from wedlock, presumption of valid marriage exists and appellant being born legitimately can be drawn.
Reliance has also been placed on the judgment of Supreme Court in case of Tulsa and others Vs. Durghatiya and others as reported in 2008 AIR (SC) 1193 wherein, it has been held that the person who seeks to deprive the relationship has to prove that no marriage had taken place.
Placing reliance on such judgments, it is submitted that by virtue of name of Ram Saran Tripathi being mentioned as father to Mahesh is sufficient to prove marriage of Mannawati to said Ram Saran Tripathi and, therefore, she is entitled to the family pension, which has been wrongly denied by the Courts below.
Learned counsel for the respondent No.3 submits that benefit of these judgments as cited by learned counsel for the appellants could not be derived by the appellants because they are distinguishable on their own facts. It is submitted that there is no explanation as to how name of Sri Rajaram is recorded at various places as the husband of Mannawati, therefore, in absence of therebeing any explanation for recording the name of Sri Rajaram as husband of Mannawati or Smt. Mannawati as widow of Rajaram and there being specific nomination in the official service record of the deceased, in favour of the respondent no.3, appellant is not entitled to take any benefit. Appeal deserves to be dismissed and be dismissed.
Learned counsel for the State also submits that there are concurrent findings of fact which cannot be distrubed in the Second Appeal.
It is apparent that this appeal was filed in the year 2005. On 16.12.2005, Office was directed to summon the lower court record from the Trial Court and it was noted that before admitting such appeal, record is necessary. Thereafter, this appeal was listed on 08.03.2018. When co-ordinate Bench recorded that record is not appended with the file of the second appeal, then on 15.03.2018 when matter was directed to be put up on 16.03.2018. On 16.03.2018, time was sought by the learned counsel for the appellant to study the matter and place before the Court, Service Rules. Thereafter, matter was listed on 17.05.2018, 12.07.2018 and 18.09.2018 but there is no order of admission of appeal.
In the meanwhile, it appears that appeal was dismissed and was restored vide order dated 23.04.2019. On 17.09.2019, this appeal was admitted on the following two substantial questions of law:-
"(i) Whether courts below acted wrongly and illegally in discarding the evidence produced by and on behalf of plaintiff-appellant and relying on inadmissible evidence produced by and on behalf of defendant-respondent no.3 Reshma Devi.
(ii) Whether appellant has proved to be wife/widow of Ram Saran Tripathi and findings of courts below are self-contradictory as well as perverse too."
On the basis of such substantial questions of law, judgments produced on behalf of the appellant are taken into consideration, then it is apparent that law laid down in case of Ranganath Parmeshwar Panditrao Mali and another (supra) referring to the provisions contained in Section 112 of the Evidence Act has held that when record proves that two persons were staying together as husband and wife for continuous and long period more so when said fact was admitted by adversary, then there is a presumption of valid marriage. Under such facts and circumstances, it has been held that sons be gotten by wife from husband from such marriage or legal heirs have claimed over property of husband and would succeed to said property.
Provisions of Section 112 of the Evidence Act deals with aspect of birth during marriage to be conclusive prove of legitimacy. The law presumes strongly in favour of legitimacy of offspring.
In the present case, plaintiff has not discharged the burden that when her marriage with Ram Saran Tripathi was solemnized on which date. Plaintiff Mannawati admitted her marrige to Rajaram but then improvised saying that since Rajaram died, she had contracted marriage with Ram Saran Tripathi. Date of death of Rajaram could not be proved so also the date of marriage could not be proved. It is even not proved that it was Ram Saran Tripathi who got Ramesh Chandra admitted in the school and gave him his name by filling the necessary documents to that effect. In absence of such burden being discharged by the plaintiff, legitimacy of a child could not have been read into as legitimacy of the marriage. Especially, there is another circumstance, which distinguishes the present case namely evidence which has come on record that Mannawati was staying in the house of Rajaram and not in the house of Ram Saran Tripathi.
Similarly, judgment in case of Chowdegowda @ Dorji (dead) and others (supra), facts are different. In that case, father had described the appellant as son born to his first wife and, therefore, court held that the factum of marriage between father and his wife was difficult to prove at a distance of 40 years and taking note of the fact that, however, the lived together as husband and wife, presumption was drawn that appellant was born from such marriage and was born legitimately.
Similarly, in case of Tulsa and others (supra), such presumption has been drawn by the respective courts on the basis of long living together of the persons concerned under those facts and circumstances of that case.
In the present case, there is no admission of any relevant person and there being a difference between a presumption and legal fiction, it cannot be said that these judgments apply to the facts and circumstances of the case especially when the plethora of evidence is available on record to show that in fact Mannawati was aunt to Ram Saran Tripathi and she has admitted that she is widow of Rajaram who was Tau of Ram Saran Tripathi. This evidence itself is sufficient for Ram Saran Tripathi could not have entered into marriage with Mannawati as such relationship is one of prohibited degree.
As far as first substantial question of law is concerned, it is apparent that plaintiff Mannawati has admitted in her examination-in-chief that her first marrage had taken place with Rajaram and at that time her age was 13 years. She admitted that after 2-3 years of her marriage with Rajaram, Rajaram died. One son was born from said wedlock, who died at the age of 10 years. Her second marriage was solemnized with Ram Saran Tripathi and when such marriage had taken place Ram Saran Tripathi was a bachelor. She has also mentioned that there were two witnesses to their marriage namely one Pandit and a Kallu Nai and both have died.
From said wedlock with Ram Saran Tripathi, two daughters and two sons were born names of sons are Mahesh and Ramesh whereas daughters died when they were young. Mahesh also died when he was 32 years of age. His widow is available at home. Plaintiff Mannawati has not filed copy of death Certificates of either Rajaram or her son who was born from Rajaram.
This witness has deposed that she is the first wife and Ram Saran Tripathi had asked him to show mercy to him otherwise he will lose his job, therefore she had not made any complaint to the police authorities when Ram Saran Tripathi had entered into wedlock with Reshma Devi. She has admitted that she had given notice after three months of filing of the suit. She has admitted that after 50 years of her marriage, she filed a case claiming maintenance. Because, Ram Saran Tripathi had beaten her, therefore, she had filed a case. She has also admitted that she has 70 bigha of agricultural land in her name and she had not taken any loan on such agricultural property. She has also admitted that she is a member of the society. She admitted that she was given a book showing the membership of the society and she further admitted that in such book of the society, name of her husband is shown as Rajaram, then said that Ram Saran Tripathi had made her his wife. She admits that in the ''Lagan' receipts of the agriculture land, name of her husband is mentioned as Rajaram. In her cross-examination as was conducted by defendant nos.1 and 2, she admitted her age to be 60-65 years. She also admitted that Reshma Devi is 10-15 years younger to her. She said that Reshma Devi's marriage was performed after her marriage, however there is no proof of her marriage on record. P.W.-2, Smt. Sita Devi has deposed that plaintiff is related to her and is mother-in-law through relation. P.W.-2 has admitted that Ram Saran Tripathi had given his name to the children of Mannawati to save her from defamation. She further admits that when marriage of Mannawati took place, she had (P.W.-2) not come out of her house as she was not permitted to do so. She also admits that she is from Shahjahanpur. She could not give any details about occupation of Ram Saran Tripathi. P.W.-3, Ramesh Chandra has admitted that Reshma Devi is staying in the house of Ram Saran Tripathi.
However, there is admission of the plaintiff that in her society papers and revenue papers name of her husband is mentioned as Rajaram. No reason has been assigned as to why name of Rajaram is continuing in such documents when Rajaram had died prior to 1956 as per her own averments and she had married Ram Saran Tripathi.
D.W.-2, Mahesh Chandra S/o Rikkhi Lal Clerk in the O/o District Basic Education Officer, Shahjahanpur clearly deposed that on Pension Application, photo of Ram Saran Tripathi and Reshma Devi is affixed, duly certified by the, then, Deputy Inspector of Schools, which D.W.-2 duly identified. Ram Saran Tripathi had made nomination during his life time and in his own handwriting. In Pension Payment Order (PPO), name of nominee is not mentioned. There is no effective rebuttal to such deposition.
In view of such facts, first substantial question of law can be answered that courts below have not acted wrongly or illegally and they have not discarded the evidence produced and on behalf of the plaintiff-appellant inasmuch as there is admission of the plaintiff that in revenue records and in society book her husband is mentioned as Rajaram. Thus, in view of such facts, cannot be said that the court below has relied on any inadmissible evidence so to give any benefit to the defendants and cause any prejudice to the plaintiff.
Appellant could not prove that she is wife/widow of Ram Saran Tripathi because even on the documents on which, she has placed reliance like certificate of Mahesh or Ramesh in which, there is no mention of her name as a mother to show that she is mother of Mahesh Chandra Tripathi. She has not produced any Ration Card or Voter List to show that she is wife of Ram Saran Trpathi.
On the contrary, in the order dated 07.07.1989 passed by Special Judge/Additional Sessions Judge in the matter of evidence, learned Additional Sessions Judge has clearly mentioned that it does not consider it necessary to enter into the legality of the marriage of the revisionist with the opposite party, because they came to terms and filed a compromise paper no.18/A before me today in which, he took a liability to pay a monthly maintenance allowance to the opposite party @ 250/- w.e.f. first day of this month. Therefore, that order passed by the Court of Additional Sessions Judge, also does not confer and conform that Courts at that relevant point of time accepted her to be the legally wedded wife of Ram Saran Tripathi.
Therefore, onus was on the plaintiff-appellant to have prove her marriage to Ram Saran Tripathi by leading cogent evidence as to under what facts and circumstances, she continued to use name of her husband as Rajaram. Whether she was entitled to inherit to the State of Rajaram after her re-marriage. In the document exhibited as Ext.5 and 6, there is no cutting in the name of Reshma Devi as wife. In fact, Ram Saran Tripathi had mentioned his own name as a person entitled to family pension and he had cut his own name and mentioned name of Reshma Devi because Ram Saran Tripathi could not have claimed family pension. In Ext.-8 name of Reshma Devi is clearly mentioned as a nominee and there is no cutting cutting or over-writing on such document, therefore, contention of the appellant that there was cutting and over-writing on the nomination forms.
In view of such facts, both the substantial questions of law are required to be answered against the appellant as appellant has failed to prove herself to be wife/widow of Ram Saran Trpathi and there is no contradiction in the findings of the courts below. Further, they are neither contradictory nor perverse as can be seen from the material available on record, which has been minutely scrutinized by me with the assistance of the learned counsel for the parties.
In view of such facts, the Courts below have not committed any error in appreciating the evidence.
Thus, the second appeal deserves to fail and is dismissed as the appellant has failed to substantiate the two substantial questions of law framed in this second appeal.
Parties to bear their own cost.
Order Date :-18.01.2020 Ashutosh