Azamatibi and Others vs Akhtyarbi and Others

N.W. Sambre, J—This appeal is directed against the judgment and decree dated 27th November, 1986, passed by Joint District Judge, Aurangabad, in Regular Civil Appeal No. 57 of 1982, thereby confirming the judgment and decree dated 6th February, 1982, passed by Civil Judge Junior Division, Paithan, in Regular Civil Suit No. 29 of 1977.

In Regular Civil Suit No. 29 of 1977, the appellants/plaintiffs had sought a decree for declaration and injunction. It is claimed by the appellants/plaintiffs that they are entitled for declaration of ownership of 12 annas 6 pai share in land bearing survey No. 3, Gat No. 7, locally known as "3 Bighe", ad measuring 2 Acres and 26 Gunthas, assessed at Rs. 2.81 ps., along with three mango trees and right of water in the well. The plaintiffs claimed further declaration of same share in the house of 10 khan, boundaries whereof are described in the plaint. It is the case of plaintiff No. 1 that after the death of her husband Vazir Patel, who was owner and in possession of the suit field and suit house, the plaintiffs became owner of the same being legal heiress of Vazir Patel.

The aforesaid claim of the plaintiffs was objected to by the defendants by filing joint written statement at Exh. 79. The suit instituted by the plaintiffs herein came to be dismissed by Civil Judge Junior Division, Paithan, by judgment dated 6th February, 1982, which was further confirmed by the Joint District Judge, Aurangabad, in Regular Civil Appeal No. 57 of 1982. As such, present Second Appeal.

Mr. Bhandari, learned Counsel appearing on behalf of the appellants, has invited my attention to the factual matrix of the case. According to him, as appellant No. 1/plaintiff No. 1 was wife of Vazir Patel and there is no dispute that the suit property was owned by Vazir Patel, she becomes successor to the said property by virtue of her legal heirship.

The said claim was resisted by the defendants, as according to them, plaintiffs No. 2 and 3, who claim to be daughters born to plaintiff No. 1, were from the first husband of plaintiff No. 1, namely, Dagadu. According to them, defendant No. 1, who is wife of one Rammu, was born to plaintiff No. 1 out of illicit relationship between Vazir Patel and plaintiff No. 1.

The substantial question of law sought to be raised by the learned Counsel appearing on behalf of the appellants/plaintiffs is, whether both the Courts below have committed an error in not accepting the claim of the plaintiff No. 1 for share in the suit property, in view of her status as wife of Vazir Patel and for appellants No. 2 and 3 as daughters of Vazir Patel.

In the wake of the claims put-forth by the respective parties to the suit, the learned Trial Court framed issues at Exh. 30 and recorded findings thereon, as under:--

The learned Trial Court has noticed that since the issues framed are inter-related, the same are discussed and decided together.

The learned Trial Court has taken into account the evidence of plaintiff No. 1 Azmatbi at Exh. 45, P.W.2 Sk. Gulab at Exh. 46 and P.W.3 Sk. Gafoor at Exh. 47.

The learned Trial Court has taken note of the fact that plaintiff No. 1 herself has admitted that plaintiffs No. 2 and 3 are her daughters, who were born from her first husband Dagadu Patel of village Karkin. According to the learned Trial Court, having regard to the said fact, plaintiffs No. 2 and 3 are not having any concern at all with the suit property.

The learned Trial Court, having regard to the evidence of P.W.1-plaintiff No. 1; evidence of P.W.2 Sk. Gulab at Exh. 46 and evidence of P.W.3 Sk. Gaffar at Exh. 47, has noticed that plaintiff No. 1 has failed to prove her marriage with Vazir Patel. According to the learned Trial Court, plaintiff No. 1 has not placed on record siyanama to prove her marriage and even if it is claimed that her marriage was performed by Kazi Abdul Wahed, said Kazi was not examined as witness to prove her marriage with late Vazir Patel. The Trial Court has also taken into account the evidence given by P.W.2 Sk. Gulab, who has initially stated that plaintiff No. 1 was not related to Vazir Patel though later on, on suggestion, he has stated about the marriage of plaintiff No. 1 with Vazir Patel.

As there is no dispute that the parties are governed by Mahomedan Law, the marriage is a contract and same is always reduced into writing. In the absence of production of siyanama, the learned Trial Court has drawn an inference that the marriage was not proved and as such, inferred that plaintiff No. 1, at the most, could get status of keep of late Vazir Patel. The learned Trial Court has also noted about the falsity of version of the plaintiff. The learned Trial Court has taken note of the statement of plaintiff No. 1 that when she married with Dagadu Patel, no siyanama was executed, whereas siyanama about the marriage of plaintiff No. 1 with Dagadu Patel was produced at Exh. 58 along with the translated copy, which reflects payment of mehar of Rs. 125/-. The Court below has disbelieved the testimony of P.W.2 Sk. Gulab, having regard to the fact that he was convicted in some criminal cases at the behest of defendant No. 3 and has observed that with a view to take revenge against defendant No. 3, he has entered into the witness box to support the case of the plaintiffs.

The learned Trial Court has taken into account the siyanama Exh. 60 about marriage of defendant No. 1 with Rammu, who was born to plaintiff No. 1 from Vazir Patel. The said fact is not in dispute. The translated copy of the said siyanama was placed on record at Exh. 60/A. From the said siyanama, it is reflected that the mehar of Rs. 250/- was fixed and the suit property, i.e. field and house was also part of mehar.

So far as the said document of siyanama at Exh. 60/A is concerned, the same was proved as it came from proper custody and was accordingly exhibited. No evidence in rebuttal thereof was brought on record to disprove the said document Exh. 60/A. In that view of the matter, the learned Trial Court has disbelieved the testimony of plaintiff No. 1 and her witnesses and as such, dismissed the suit.

In appeal, the learned Joint District Judge, determined the points for consideration and recorded findings thereon, as under:--

The learned Lower Appellate Court, having regard to the claim put-forth before it, has re-assessed the entire evidence, so also the findings recorded by the Trial Court. The learned Lower Appellate Court has considered and negated the statement of plaintiff No. 1 in her testimony that no mehar was fixed at the time of marriage and Kazi Abdul Wahed was present at the time of her marriage with Vazir Patel. Such negation of the statement was having regard to the evidence of her own witness, namely, P.W.2 Sk. Gulab examined at Exh. 46, as according to him, no kazi was present to perform the marriage. He has also deposed that he cannot state about any relationship between late Vazir Patel and plaintiff No. 1. The said witness Sk. Gulab, who was examined, has stated that plaintiff No. 1 was not related to Vazir Patel. The learned Lower Appellate Court has also taken into account the falsity of statement made by plaintiff No. 1 in her deposition that no siyanama was executed about her marriage with Dagadu, which, in fact, was produced on record by the defendants. The learned Lower Appellate Court has also taken into account the siyanama Exh. 60 executed in favour of defendant No. 1, wherein an amount of Rs. 200/- along with suit property was mentioned towards mehar.

The learned Lower Appellate Court has also taken into account the continuous co-habitation of Vazir Patel with Azmatbi and also considered the contentions qua presumption to that effect. The learned Lower Appellate Court, as such, has inferred that the Trial Court has rightly disbelieved the evidence of the plaintiffs and her witnesses and has inferred that there was no marriage between plaintiff No. 1 Azmatbi and Vazir Patel, as the said fact was not proved. The Lower Appellate Court has also taken into account that plaintiffs No. 2 and 3 were born to plaintiff No. 1 from her late husband Dagadu Patel. Defendant No. 1 Akhtarbi, who is wife of late Rammu, was examined at Exh. 59 and witness Syed Sultan, her father, at Exh. 61 and Sk. Shafi at Exh. 62 and they supported the case of defendant No. 1. The siyanama which was placed on record at Exh. 60, was a certified copy obtained from the office of Marathwada Wakf Board.

In the light of the analysis of the entire evidence, in my opinion, the substantial question of law sought to be raised by the learned Counsel appearing on behalf of the appellants, has to be answered in negative. The appeal, though was admitted on the issue of grounds No. (III) and (VI), i.e. the evidence of defendant No. 1 admitting status of plaintiff No. 1 as her mother-in-law and the continuous co-habitation of plaintiff No. 1 with Vazir Patel and a presumption to that effect, yet there cannot be a presumption of marriage when plaintiff No. 1 herself has come out with a case that she married to Vazir Patel in presence of a kazi and two witnesses. The foregoing discussion reflects that the so-called story of marriage with Vazir Patel put-forth by plaintiff No. 1 was not proved.

Reliance placed by learned Counsel appearing on behalf of the appellants on the judgment of the Apex Court, in the matter of Mohd. Amin and Others Vs. Vakil Ahmed and Others, AIR 1952 SC 358 : (1952) 1 SCR 1133 , in my opinion, in the facts of the instant case, has hardly any application as the findings recorded by the Apex Court in the said case, deal with status of children and not that of wife/keep.

Paragraph 16 of the said judgment is worth referring, which reads thus:--

"The contention of the defendants 1 to 5 in regard to the lawful wedlock between plaintiff 5 and Haji and the legitimacy of plaintiffs 1 to 4 was equally untenable. The plaintiffs had no doubt to prove that plaintiff 5 was the lawfully wedded wife and plaintiffs 1 to 4 were the legitimate children of Haji. Both the Courts found that the factum of the marriage was not proved and the plaintiffs had, therefore, of necessity to fall back upon the presumption of marriage arising in Mahomedan law. If that presumption of marriage arose, there would be no difficulty in establishing the status of plaintiffs 1 to 4 as the legitimate children of Haji because they were admittedly born by plaintiff 5 to Haji. The presumption of marriage arises in Mahomedan law in the absence of direct proof from a prolonged and continual cohabitation as husband and wife. It will be apposite in this connection to refer to a passage from the judgment of their Lordships of the Privy Council in Khajah Hidayut Oollah v. Rai Jan Khanurn, 3 Moo.Ind.App.295 (P.C.) at p.317 . Their Lordships there quoted a passage from Macnaghten''s Principles of Mahomedan Law:--

"The Mahomedan lawyers carry this disinclination (that is against bastardizing) much further; they consider it the legitimate of reasoning to infer the existence of marriage from the proof of cohabitation......... None but children who are in the strictest sense of the word spurious are considered incapable of inheriting the estate of their putative father. The evidence of persons who would, in other cases, be considered incompetent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, the law will rather do so than bastardize the issue, and whether a marriage be simply voidable or void ab initio the offspring of it will be deemed legitimate...... This I apprehend, with all due deference, is carrying the doctrine to an extent unwarranted by law; for where children are not born of women proved to be married to their father, or of female slaves to their fathers, some kind of evidence (however slight) is requisite to form a presumption of matrimony........ The mere fact of casual concubinage is not sufficient to establish legitimacy; and "if there be proved to have existed any insurmountable obstacle to the marriage of their putative father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes."

Their Lordships deduced from this passage the principle that where a child had been born to a father of a mother where there had been not a mere casual concubinage, but a more permanent connection, and where there was no insurmountable obstacle to such a marriage, then according to the Mahomedan law, the presumption was in favour of such marriage having taken place."

The issue as regards plaintiffs No. 2 and 3 being uterine sisters is concerned, having regard to the admission given by the appellant No. 1-plaintiff No. 1 that plaintiffs No. 2 and 3 were born out of her marriage with Dagadu, in Mahomedan Law, they are also not entitled for any relief.

In the light of above, the Second Appeal fails and the same stands rejected with no order as to costs.