Bombay High Court
Usha Ganeshrao Ingale And Others vs Lalita Devidas Yewale And Others on 22 January, 2020
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.328/2019
APPELLANTS : 1. Usha Ganeshrao Ingale,
Original aged about 56 years, Occ. Nil, r/o Pala,
defendant no.1 Tq. Morshi, District Amravati.
2. Lata Mukundrao Raut,
Org. deft. No.2 aged 46 years, Occ. Household,
r/o Chikhalsawangi, Tq. Morshi,
District Amravati.
3. Vijay Namdeorao Yewale,
Orig. deft. No.6 aged about 59 years, Occ. Doctor,
r/o Borala, Tq. Chandur Bazar,
District Amravati.
...VERSUS...
RESPONDENTS: 1. Lalita Devidas Yewale,
Org. plff. No.1 aged 61 years, Occ. Household.
2. Smita Devidas Yewale
Org. plff. No.2 aged about 49 years, Occ. Household.
3. Swati Devidas Yewale,
Org. plff. no.3 aged about 35 years, Occ. Household.
4. Rupali Devidas Yewale,
aged about 44 years, Occ. Household.
Respondents 1 to 4 residents of
Gajanan Colony, Chandur Bazar,
Tq. Chandur Bazar, District Amravati.
Org. defts 3. 5. Nilesh Nilkanthrao Londhe,
aged about 29 years, Occ. -
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Org. def.4 6. Nitesh Nilkanthrao Londhe,
aged about 36 years, Occ. -
Org. deft. 5 7. Nilkanthrao Bapurao Londhe,
aged about 74 years, Occ. Nil.
Respondents 5 to 7 residents of
Yawali (Shahid), Chandur Bazar,
District Amravati.
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Mrs. R.D. Raskar, Counsel for appellants
Shri U.K. Bisen, Counsel for respondents
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CORAM : AVINASH G. GHAROTE, J.
DATE : 22/01/2020
ORAL JUDGMENT
1. Heard. Admit. Learned counsel Shri U.K. Bisen waives service of notice for the respondents. The second appeal is taken up for final disposal with the consent of the learned counsel for the parties.
2. On 18/09/2019 while issuing notice, the following substantial question of law was framed :-
"Whether the Courts below were justified in granting decree in favour of respondents/plaintiffs in the teeth of admission given in cross-examination by respondent No.1/plaintiff No.1 that another person i.e. Vasundhara, was the wife of Devidas and when there ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 3 was absence of cogent evidence to prove that, the said plaintiff No.1 Lalita was indeed the wife of the said Devidas ?"
3. The respondent nos.1 to 4, filed a suit for partition and separate possession against the present appellants, who were arrayed as defendant nos.1, 2 and 6 as well as the respondent nos.5 to 7 who were arrayed in the suit as defendant nos.3 to 5 in respect of the lands claimed to be held by one Devidas. It is stated in the plaint that the suit property originally belonged to Namdeo Ramrao Yewale who had a wife named Godabai. Namdeo Ramrao Yewale is said to have passed away on 10/6/1982 leaving behind him Devidas, defendant no.6/Vijay Namdeorao Yewale and the present appellant nos.1 and 2 (daughters) as his legal heirs. The original plaintiff no.1 - Lalita claiming herself to be the wife of Devidas from whom it is claimed that the plaintiff nos.2 to 4 were begotten, filed a suit for partition and separate possession in respect of the lands fallen to the share of Devidas.
4. The original defendant nos.1, 2 and 6 filed their written statement, and denied the marriage of Lalita with Devidas. It was ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 4 specifically pleaded in para 10 of the written statement that the plaintiff no.1 was not the legally wedded wife of late Devidas nor were the plaintiff nos.2 to 4 the daughters of Devidas. It was further stated that Devidas had solemnized marriage with Vasundhara daughter of Sadashiv Mahadeo Kitkule r/o Masod Tah. Chandur Bazar on 11/5/1980 and the marriage between Devidas and Vasundhara was not dissolved by a decree of divorce. It was thus submitted that in view of this position, the plaintiffs did not have any legal standing to institute the suit itself as they being unrelated to Devidas could not claim any share in the suit properties left behind by Namdeo, the father of Devidas. Before the Trial Court, the plaintiff examined herself at Exh.20. In her cross-examination, she categorically admitted that Vasundhara was the wife of Devidas and she had no knowledge whether the marriage was dissolved or not. She denied that the marriage between Devidas and Vasundhara had taken place on 11/5/1980. It was further admitted by her in the cross-examination that the entire property held by Namdeo was ancestral, inasmuch as Namdeo had five brothers and after demise of their father, there was a partition between Namdeo and his five brothers. It was further admitted by her that there was a further ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 5 partition between Namdeo, Devidas and Vijay by way of a registered document. The plaintiff no.1- Lalita was the sole witness examined on behalf of the plaintiffs.
5. The defendant no.1, on behalf of the defendant no.6 - Vijay, entered into the witness box at Exh.54 and deposed that the deceased Devidas was married on 11/5/1980 with Vasundhara as per Hindu rites. He further deposed that the marriage between them was not dissolved and there were no issues to Devidas from Vasundhara. He further deposed that there was no relationship between Devidas and Lalita as husband and wife or for that matter, the plaintiff nos.2 to 4 were not the children of Devidas and Lalita and as such they had no right to institute the suit. The Police Patil of village Borala, Tq. Chandur Bazar, District Amravati, namely, Keshav Trimbakrao was examined as P.W.-4. He also deposed that Devidas was married with Vasundhara daughter of Sadashiv Mahadeo Kitkule in the year 1980. She resided with Devidas for some time, however, as the relation between them was not cordial, she had gone away. He further deposed that the marriage between Devidas and Vasundhara was not dissolved. In the cross-examination, he admits that he had not seen Vasundhara. The defendant no.5 had ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 6 also examined Nilkanth Bonde at Exh.42, the husband of Chitralekha, daughter of Namdeo. He, however, pleaded ignorance about marriage of Devidas with Vasundhara. He, however, denied the suggestion that Lalita was not married to Devidas.
6. The learned Trial Court, based upon such evidence, decreed the suit filed by the original plaintiff by judgment and decree dated 26/6/2009, and held that Devidas had 1/5th share in the suit properties, out of which the plaintiffs would have 1/4th share. It is further held that the defendant nos.2 and 6 had 1/5th share in the suit properties and defendant nos.3, 4 and 5 had 1/3rd share out of 1/5th share. He further directed a precept to be issued under Section 56 of the Code of Civil Procedure for partition of the agricultural properties. The learned Appellate Court on appeal by the original defendant nos.1, 2 and 6, by its judgment dated 18/8/2018 upheld the finding of the Trial Court that the plaintiff no.1 - Lalita was the wife of deceased Devidas and the plaintiff nos.2 to 4 were her children from Devidas, based upon which the entitlement to the share, as directed by the Trial Court, was upheld and the appeal was dismissed, however, at the same time, the judgment and decree as passed by the Trial Court was modified ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 7 holding that the plaintiffs jointly had 18/45 shares, defendant no.6 - Vijay had 18/45 share and the defendant nos.1 and 2 had 1/15th share each, the defendant nos.3 and 4 had jointly 1/15th share. The present second appeal is against the aforesaid findings by the Courts below.
7. Learned Counsel for the appellants in light of the substantial question of law, as framed on 18/9/2019, submits that both the Courts below, had erred in ignoring the admission of the plaintiff no.1 - Lalita to the effect that Devidas was married with Vasundhara as elicited in her cross-examination. She further submits that even otherwise plaintiff no.1- Lalita had not proved the factum of marriage with Devidas. She submits that the pleadings in this regard are absolutely vague and bereft of any details. She further points out that neither the date of the marriage nor the place, nor the method/ceremony by which it was performed, nor in whose presence it was performed has been pleaded in the plaint. She further submits that the evidence of Lalita on this point is equally bereft of any details. It is her contention that the plaintiffs having come to the Court with a specific case that the plaintiff no.1 claiming to be the legally wedded wife of Devidas from whom she claims the ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 8 plaintiff nos.2 to 4 were born, it was necessary for the plaintiffs to give specific details as to factum of marriage between Lalita and Devidas and also to prove the same. According to her, all these details are totally absent from the pleadings as well as the evidence, in light of which the finding rendered by the Courts below that Lalita was the legally wedded wife of Devidas and the plaintiff nos.2 to 4 were her children could not be factually and legally sustained. She further submits that the pleading and proof was further specifically required in law, in light of denial of the relationship and status of plaintiff vis-a-vis Devidas, by the defendant nos.1 and 2 who were the sisters of Devidas and so also by the defendant no.6 who was the brother of Devidas. She therefore submits that the requirement of law, to satisfy the findings as rendered by the Courts below is totally absent and the findings regarding the factum of marriage between Devidas and Lalita/plaintiff no.1 and those regarding the parentage of the plaintiff nos.2 to 4 being without any evidence, have been incorrectly rendered by the Courts below, and therefore, need to be set aside. She further submits that the evidence of D.W.1 for the defendant no.5, namely, the husband of Chitralekha was that of an enimical person, in the light of the fact ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 9 that he has admitted in his cross-examination that his relation with his father-in-law Namdeo was not cordial. She further submits that the original defendant nos.3, 4 and 5 were in collusion with the plaintiffs, which could be seen from the fact that before the First Appellate Court as well as in this Court, they are represented by the same counsel. She thus submits that the impugned judgment and decree as passed by both the Courts below must be quashed and set aside. Learned counsel places reliance upon Union of India Vs Moksh Builders and Financiers Ltd. and others , reported in AIR 1977 Supreme Court 409, Thiru John Vs The Returning Officer and others, reported in AIR 1977 Supreme Court 1724 in support of her contention as to admission given by plaintiff no.1/Lalita and A. Raghavamma and another Vs A. Chenchamma and another , reported in AIR 1964 Supreme Court 136 as to the distinction between burden of proof and onus of proof.
8. Shri Bisen, the learned Counsel for the respondents, at the outset, submits that the defendant nos.3, 4 and 5 in the Trial Court itself had filed their written statement, admitting the claim of the plaintiffs and as such their interests were not adversarial to the plaintiffs and nothing can be made out from the fact that before the ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 10 First Appellate Court as well as in this Court they are being represented by the same Counsel. He further supports the findings as rendered by the Courts below regarding the factum of marriage of Devidas with Lalita. He submits that the factum of marriage can be demonstrated from the fact that the plaintiff no.1/Lalita had been appointed in place of Devidas, who was serving in Public Health Centre, Talwel of Zilla Parishad, Amravati, on compassionate ground. He further submits that after the demise of Devidas the name of the plaintiff was recorded in the 7/12 extract in respect of the suit properties in the year 2002 and also prior thereto which was not objected by the defendant nos.1, 2 and 6 in spite of being aware of the same. He submits that these two incidents are sufficient to demonstrate that Devidas had married Lalita and that the plaintiff nos.2 to 4 were children from Devidas.
9. Perusal of the judgment of the Trial Court demonstrates that though in para 12 to 19 the Court has discussed the claim of Lalita/plaintiff no.1 about having married to Devidas, however, the admission elicited from Lalita has been totally ignored. The evidence of defendant no.6 as well as of Keshav Trimbak Ingole (D.W.4) at Ex.74 regarding factum of marriage between Devidas and ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 11 Vasundhara has also been ignored. The entire basis of recording a finding regarding the marriage between Devidas and plaintiff no.1 is the admission of defendant nos.3, 4 and 5 as is reflected from para 19 of the judgment. The Trial Court has further drawn an adverse inference against the defendant nos.1, 2 and 6 on the ground that it was their duty to examine Vasundhara, which they had not done. The negative burden sought to be placed upon the defendant nos.1, 2 and 6 in this regard clearly is not justified, in light of the settled position of law that it was for the plaintiffs who had approached the Court to plead and prove the factum of marriage between the plaintiff no.1 and Devidas. In fact a perusal of the plaint demonstrates that neither the date of marriage, the place of marriage, the ceremonies of marriage, in whose presence the marriage took place, who had performed the marriage, has been stated therein. In light of the denial of the factum of marriage by the defendant nos.1, 2 and 6 in the written statement, it was necessary for the plaintiff no.1 to place on record the material or evidence either in the form of documentary evidence or by examining witness to substantiate her contention that plaintiff no.1 and Devidas were married. However, except for the bland statement in the plaint there ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 12 is absolutely nothing on record. The contention of learned Counsel for the respondents that plaintiff no.1/Lalita has been granted compassionate appointment in place of Devidas is also absent from the plaint as well as the evidence of Lalita/plaintiff no.1. Nothing has been placed on record to substantiate this before the Trial Court enabling the Trial Court to arrive at such a finding.
10. Shri Bisen, the learned Counsel for the respondents invites my attention to para 19 of the judgment of the Trial Court to contend that the documents in relation to the appointment of plaintiff no.1 in place of Devidas on compassionate ground were placed on record and considered by the Trial Court to arrive at the finding regarding marriage between Devidas and plaintiff no.1/Lalita. A perusal of para no.19 demonstrates, that the documents referred to herein are Article D-1, D-2 and D-3. It is a trite position of law that document marked as an Article before the Trial Court is one which is not proved in law. Therefore, in absence of proof of such a document, neither the plaintiffs nor the Trial Court could have placed reliance upon the same, to hold anything regarding the factum of marriage between plaintiff no.1/Lalita and Devidas.
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11. The question of drawing any adverse inference against defendant nos.1, 2 and 6, for not having examined Vasundhara does not arise for the reason, that the factum of marriage between Vasundhara and Devidas stands admitted by Lalita in cross- examination. That apart, when plaintiffs came with a specific case of marriage between Devidas and Lalita the burden was upon them to prove the factum of marriage. Not a single witness has been examined by the plaintiff, except for examining the plaintiff no.1 in this regard, whose evidence also is bereft of any details whatsoever. Thus, there was absolutely no material on record for the Courts below to have arrived at the finding that the plaintiff no.1 was the legally wedded wife of Devidas or for that matter the defendant nos.2 to 4 were the daughters of Devidas. Even there is nothing on record to demonstrate that Devidas and Lalita/plaintiff no.1 had long cohabitation, so that any presumption as to marriage could be arrived at. The reliance, therefore, by the learned Counsel for the respondents on the judgment of the Hon'ble Supreme Court in the case of Tulsa and others Vs Durghatiya and others , reported in 2008 (4) SCC 520 is clearly misplaced. The judgment of the Hon'ble Supreme Court in the case of Vidyadhari and others Vs Sukhrana ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 14 Bai and others, reported in 2008 (2) SCC 238, relied upon by the learned Counsel for the respondents to contend that where the legally wedded wife was living separately and the husband contracted second marriage and begot children therefrom, the marriage would be void but the children through the second wife would be legitimate, is also of no assistance to the plea, as canvassed by the learned Counsel for the reason that the factum of marriage between plaintiff no.1 and Devidas or for that matter, the plea that the plaintiff nos.2 to 4 were children begotten from Devidas, has not been established, by any material, pleading or evidence on record. It would be pertinent to point out that the parentage of the plaintiff nos.2 to 4 could have been established by the plaintiffs by placing on record the documents relating to their birth certificates, school certificates etc., however, there is not a single document in this regard on record, neither, the mention of any such document is reflected in the evidence of plaintiff no.1 - Lalita.
12. In A. Raghavamma (Supra) the Hon'ble Apex Court has held that there is an essential distinction between burden of proof and onus of proof ; burden of proof lies upon the person who has to ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 15 prove a fact and it never shifts, but the onus of proof shifts. In the present case when the plaintiffs came to the Court with a case that Devidas was the husband of Lalita/plaintiff no.1 and the father of plaintiff nos.2 to 4, the burden to prove the same was clearly upon the plaintiffs, which they failed to discharge as the record demonstrates.
13. The reliance upon the mutation entry in favour of Lalita/plaintiff no.1, in absence of establishing on record that such an entry was made after due notice to the defendants, would not be of any assistance to the plaintiffs.
14. Admission as defined in Section 17 of the Evidence Act is always considered as the best piece of evidence. In Moksh Builders and Financiers Ltd. (Supra), the Hon'ble Apex Court holds thus :-
"It has been held by this Court in Bharat Singh v. Bhagirathi, (1996) 1 SCR 606 = (AIR 1966 SC 405) that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions."::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 :::
sa328.19.odt 16 Further in Thiru John (Supra), the Hon'ble Apex Court has held thus :-
"It is well settled that a party's admission as defined in Secs 17 to 20 fulfilling the requirement of Section 21, Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established".
The law as laid down in the above two decisions, in my humble opinion, in light of the admission given by the plaintiff no.1/ Lalita squarely covers the present case and the reliance placed by learned counsel for the appellants thereupon is fully justified.
15. In that light of the matter, considering the pleadings and evidence on record, the findings as rendered by the Courts below that plaintiff no.1 was the wife of Devidas or for that matter plaintiff nos.2 to 4 were children begotten from Devidas, being without any evidence, documentary or otherwise, cannot be sustained in law. The impugned judgment and decree of the Trial ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 ::: sa328.19.odt 17 Court dated 26/6/2009 as passed in Regular Civil Suit No.51/2005 and that of the District Judge, Achalpur in Regular Civil Appeal No.86/2009, dated 18/8/2018, in light of the above findings, thus, being without evidence and in ignorance of the admission, are therefore quashed and set aside. The suit as filed by the plaintiffs stands dismissed.
The second appeal is allowed and disposed of accordingly. No order as to costs.
JUDGE Wadkar, P.S. ::: Uploaded on - 20/02/2020 ::: Downloaded on - 17/03/2020 21:04:27 :::