NEUTRAL CITATION
C/SA/275/2022 JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 275 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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SHANTABEN MAHESHKUMAR PATEL
Versus
JAMNABEN MAHESHKUMAR PATEL
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Appearance:
MR HIMANSHU C DESAI(6832) for the Appellant(s) No. 1,2
MR. MRUGESH A BAROT(6709) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/09/2023
ORAL JUDGMENT
1. This appeal has been filed by the appellants - original defendants against the respondents - original plaintiffs against the judgment and decree dated 22.11.2019 passed by the learned 4th Additional District Judge, Bharuch in Regular Civil Appeal No. 40 of 2013, whereby, the learned 4 th Page 1 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined Additional District Judge, Bharuch has confirmed the judgment and decree dated 29.09.1999 passed by the the learned Joint Civil Judge, (S.D.) Bharuch in Special Civil Suit No. 97 of 1996 The parties are hereinafter referred to as the plaintiffs and the defendants as they stood in the original suit for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1. That the plaintiffs filed Special Civil Suit No. 97 of 1996 for possession of the disputed suit property mainly stating that Maheshkumar Chimanlal Patel, the husband of the plaintiff No.1 and father of plaintiff Nos. 2 and 3 expired on 31.03.1996 at Village Bharan. That deceased Maheshkumar Chimanlal Patel had married the Plaintiff No.1 in the year 1977 as per the Hindu customs and during their married life, the plaintiff Nos. 2 and 3 born. That before the marriage with the plaintiff No.1, deceased Maheshkumar Chimanlal Patel had married with the defendant No.1 and out of their wedlock, they had one daughter, who is the defendant No.2. The defendant No.3 is the brother of deceased Maheshkumar Chimanlal Patel. The plaintiffs have claimed that they are the legal heirs of deceased Maheshkumar Chimanlal Patel and they have ½ share in his property and have filed the suit for Page 2 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined possession of ½ share of the property and have also prayed for permanent injunction to restrain the defendants from transferring the disputed suit property.
2.2 The defendants have filed the written statement denying that the plaintiffs are the legal heirs of deceased Maheshkumar Chimanlal Patel and the defendant No.1 has stated that the plaintiffs have no right in the disputed suit property of Maheshkumar Chimanlal Patel.
2.3 The learned Trial Court has framed issues at Exh.21 and after considering the evidence of the parties adduced on record, the learned trial Court partly allowed the suit and held that the plaintiff Nos. 2 and 3 have ¼ share each in the disputed suit property and a preliminary decree was drawn, whereby, the learned trial Court has ordered to appoint a Court Commissioner by consent of both the parties and the Court Commissioner was directed to take accounts and the assets of deceased Maheshkumar Chimanlal Patel and submit a report within two months from the date of the order.
2.4. Being aggrieved and dissatisfied with the judgment and decree passed in Special Civil Suit No. 97 of 996, the defendants filed Regular Civil Appeal No. 40 of 2013 before the learned District Judge, Ankleshwar. After framing proper issues and appreciating all the evidence adduced by both the Page 3 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined parties, the learned 4th Additional District Judge, Bharuch dismissed the appeal on 22.11.2019 and confirmed the order passed by the learned 5th Joint Civil Judge, (S.D.), Bharuch passed in Special Civil Suit No. 97 on 1996 on 29.09.1999.
2.5. Being aggrieved and dissatisfied with the order dated 22.11.2019 passed by the learned 4 th Additional District Judge, Bharuch in Regular Civil Appeal No. 40 of 2013, the appellants - original defendants have filed the present appeal.
3. Heard learned advocate Mr. Himanshu C.Desai for the appellants and learned advocate Mr. Mrugesh Barot for the respondents.
4. The appellants have framed the following substantial questions of law:
A. Whether the Ld. Addi District Judge has erred in passing the impugned Judgment order and decree contrary to the provisions of section 96 and order XLI Rule 31 of CPC?
B. Whether courts below have erred in holding that the evidence of name of deceased appearing in birth certificate is proof of paternity?
C. Whether the courts below have erred in holding that appellant no 1 did not initiate any legal action to challenge the second marriage Maheshkumar? of deceased?
D. Whether the courts below have erred in holding that the appellant no 1 has not produced any evidence to show that the second marriage of Deceased Maheshkumar is illegal or has ended by divorce and therefore the marriage with respondent no 1 is valid?
Page 4 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined E. Whether it is legal to infer that since no order or decree has been obtained for declaration that second marriage of the Deceased Maheshkumar with respondent no 1 is null and void, the marriage is valid?
F. Whether the courts below have erred in holding that in absence of any probate or attempt to obtain probate and not producing copy of will shall not entitle the appellant benefit of the will?
5. Learned advocate Mr. Himanshu Desai for the appellant submitted that the suit was filed by the plaintiffs for possession and the partition of the disputed suit property being agricultural land i.e. Survey Nos. 285, 282 and 209 situated at village Bharan, Taluka Ankleshwar, District Bharuch and also House No.30/1 at village Gabhan and a Tractor, Maruti Van, Licensed Gun, furniture and ornaments. The learned advocate has submitted that the impugned order is without jurisdiction, perverse and contrary to the provisions of law. That the Courts below have failed to appreciate the fact that the marriage of respondent No.1 with deceased Maheshkumar Chimanlal Patel was not a legal marriage and deceased Maheshkumar Chimanlal Patel had a wife and daughter alive and the marriage was in violation of the provisions of Section 5 of the Hindu Marriage Act. That the marriage was not performed in the presence of fire and no 'Saptapadi' was performed and no invitation card or photographs or marriage registration certificate have been produced on record. But, the learned Trial Court and the Page 5 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined learned First Appellate Court have ignored the said fact and even thought there was no evidence on record to show that deceased Maheshkumar Chimanlal Patel was residing at village Navabhatha as well as village Bharan and the defendant No.1 was not present in the last rites of deceased Maheshkumar Chimanlal Patel, the suit has been partly allowed in favour of the plaintiffs. That merely because the name of deceased Maheshkumar Chimanlal Patel was in the birth certificate of the respondent No.2, it does not prove the paternity and a ration card cannot be held as proof and hence, he has urged this Court to allow the present appeal.
6. Learned advocate Mr. Mrugesh Barot for the respondents has submitted that both the learned Courts below have properly appreciated the evidence in proper perspective and the learned Trial Court has rightly appreciated that the plaintiff No.1 had married deceased Maheshkumar Chimanlal Patel and the marriage was the second marriage and there was ample evidence to show that the plaintiff Nos. 2 and 3 are the legitimate children of deceased Maheshkumar Chimanlal Patel. That even if, the marriage is null and void under Section - 16(1) of the Hindu Marriage Act, the children of the said marriage would be legitimate and hence, the facts and the evidence have been properly appreciated by the learned Courts below. Moreover, the Page 6 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined respondents have vehemently argued that no substantial question of law has arisen for the section and has urged this Court to dismiss the appeal.
7. The Apex Court in the case of Revansiddappa & Anr. V.
Mallikarjun & Ors. passed in Civil Appeal No. 2844 of 2011, has observed as under:
K. Conclusion
54. We now formulate our conclusions in the following terms:
(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (i) such a child is born before or after the commencement of Amending Act 1976; (ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;
(ii) In terms of sub-section (2) of Section 16 where a voidable marriage has been annulled by a decree of nullity under Section 12, a child 'begotten or conceived' before the decree has been made, is deemed to be their legitimate child notwithstanding the decree, if the child would have been legitimate to the parties to the marriage if a decree of dissolution had been passed instead of a decree of nullity;
(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub- section (2) to a child born from a voidable marriage which has been annulled, the legislature has stipulated in subsection (3) of Section 16 that such a child will have rights to or in the property of the parents and not in the property of any other person;
(iv) While construing the provisions of Section 3(1)(j) of the HSA 1956 including the proviso, the legitimacy which is conferred by Section 16 of the HMA 1955 on a child born from a void or, as the case may be, voidable marriage has to be read into the provisions of the HSA 1956. In other words, a child who is legitimate under sub-section (1) or sub-section (2) of Section 16 of the HMA would, for the purposes of Section 3(1)(j) of the HSA 1956, fall within Page 7 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined the ambit of the explanation 'related by legitimate kinship' and cannot be regarded as an 'illegitimate child' for the purposes of the proviso;
8. I have given my thoughtful consideration to the submissions made by the learned advocate for the appellants - original defendants. It appears that it is not in dispute that the appellant No.1 is the wife of deceased Maheshkumar Chimanlal Patel and the appellant No. 2 is the daughter of deceased Maheshkumar Chimanlal Patel. As per the say of the respondent No.1, deceased Maheshkumar Chimanlal Patel had got married to her and out of their wedlock, two children i.e. respondent Nos. 2 and 3 born. In all, the evidence adduced before the learned Trial Court, the plaintiffs have proved that the plaintiff Nos. 2 and 3 are the biological son and daughter of deceased Maheshkumar Chimanlal Patel and as the defendant Nos. 1 and 2 are the legally wedded wife and the daughter of deceased Maheshkumar Chimanlal Patel, the learned trial Court has preliminary decreed the suit and passed the order for appointment of the Court Commissioner.
9. It is not in dispute that the learned trial Court and the First Appellate Court, on appreciation of evidence, have recorded concurrent findings of facts as the same are on the basis of appreciation of evidence.
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10. It would be fruitful to mention here that Section 100 of the Code of Civil Procedure relates to the Second Appeal and sub- section (3) provides that in an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal and sub-section (4) provides that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Second Appeal is not totally debarred but it is admissible provided such a Second Appeal involves a substantial question of law and/or out of the judgement and decree of the courts below any substantial question of law arises. Thus, Second Appeal is required to be admitted only if the same involves substantial question of law.
11. In the present case, the appellants have formulated the proposed substantial questions of law. The proposed questions of law framed in the present Second Appeal are, in fact, not the substantial questions of law but the same are questions of facts. In exercise of powers conferred under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal. It is pertinent to note that the scope of Second Appeal under section 100 is Page 9 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. The High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record but when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate court of appeal. It is by now well settled by a catena of decisions of this Court as well as of the Honourable Apex Court and the practice has become fairly crystallized, this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done. It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case.
12. It is well settled by diverse decisions of this Court that the High Court in second appeal is entitled to interfere with the concurrent findings of fact if the said concurrent findings of fact are based on non- consideration of an important piece of evidence in the nature of admission of one of the party to the Page 10 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined suit, which is overlooked by the two courts below. It is equally well settled that under section 100 of the Code of Civil Procedure, High Court cannot interfere with concurrent findings of facts of the courts below without insufficient and just reasons. It is also required to be noted that in second appeal, the High Court is also not entitled to set aside concurrent findings of fact by giving its own findings contrary to the evidence on record.
13. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281, the Hon'ble Apex Court has observed and held as under :-
"10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC.
11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence."
14. Considering the submissions made and the decision referred to above and after examining findings of both the courts below on the issue raised in the suit and upon examination of Page 11 of 12 Downloaded on : Tue Sep 26 20:45:32 IST 2023 NEUTRAL CITATION C/SA/275/2022 JUDGMENT DATED: 25/09/2023 undefined the judgment and orders of both the courts below, this Court is of the considered opinion that the learned advocate for the appellants - original defendants are unable to point out any infirmity, perversity or impropriety in the concurrent findings of the fact recorded by both the courts below. Not only that the learned advocate for the appellants is unable to show that finding recorded by the courts below is without any evidence or there is any illegality in the findings. Under the circumstances, this Second Appeal is devoid of any substantial question of law. Both the courts below have rightly decided the issue between the parties in the right perspective. As stated above, no substantial question of law arises in the present Second Appeal. The defendants have failed to prove their case before the learned trial court as well as the learned Appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage.
Sd/-
(S. V. PINTO,J) F.S.KAZI....
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