Bombay High Court
Through Her Power Of Attorney vs Unknown on 16 December, 2009
Bench: N.D. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT
AURANGABAD
SECOND APPEAL NO. 255 OF 2007
Asma Hussain W/o Iqbal Hussain,
Age : 68 Years, Occu. : Household,
R/o Vijaynagar, Purna, Dist. Parbhani,
Alleged to be Padma W/o Lobhaji Late
Through her power of attorney,
Abdul Latif S/o Abdul Rahim,
Age : 50 Years, Occu. : Agril. & Business,
R/o Vijaynagar, Purna,
District Parbhani. -- -- APPELLANT
(Orig. Respondent)
V E R S U S
1. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan,
Age : 57 Years, Occu. : Agril. & Business,
R/o Lal Ginning Mill, Purna,
Dist. Parbhani.
2. Sayyed Ahmad Hussain S/o Ali Hasan,
Age : 60 Years, Occu. : Agril. & Business,
R/o Lal Ginning Mill Purna,
Dist. Parbhani. -- -- RESPONDENTS
(Orig. Petitioners)
WITH
SECOND APPEAL NO. 256 OF 2007
1. Ajmal Hussain S/o Iqbal Hussain,
Age : 37 Years, Occu. : Agril. & Business,
R/o Lal Ginning Mill Purna,
Dist. Parbhani.
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2. Salmabanu W/o Abdul Latif,
Age : 42 Years, Occu. : Household,
R/o Lal Ginning Mill Purna,
Dist. Parbhani.
3. Asma Hussain W/o Iqbal Hussain,
Age : 68 Years, Occu. : Household,
R/o Lal Ginning Mill Purna,
Dist. Parbhani.
Through her power of attorney,
Abdul Latif S/o Abdul Rahim,
Age : 50 Years, Occu. : Agril. & Business,
R/o Vijaynagar, Purna,
District Parbhani. -- -- APPELLANT
(Orig. Plaintiffs)
V E R S U S
1. Mannasab @ Sayyed Ahmad Hussain
S/o Ali Hasan,
Age : 62 Years, Occu. : Agril. & Business,
R/o Lal Ginning Mill Purna,
Dist. Parbhani.
2. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan,
Age : 57 Years, Occu. : Agril. & Business,
R/o Kamal Talkies, Purna,
Dist. Parbhani. -- -- RESPONDENTS
(Orig. Defendants)
WITH
SECOND APPEAL NO. 257 OF 2007
1. Asma Hussain W/o Iqbal Hussain,
Age : 68 Years, Occu. : Household,
R/o Vijay Nagar, Purna,
Dist. Parbhani.
alleged to be Padma W/o Lobhaji Late.
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2. Salmabanu W/o Abdul Latif,
Age : 42 Years, Occu. : Household,
R/o Vijay Nagar, Purna,
Dist. Parbhani.
alleged to be Manju D/o Lobhaji Late.
3. Abdul Latif S/o Abdul Rahim,
Age : 50 Years, Occu. : Agril., & Business,
R/o Vijay Nagar, Purna,
Dist. Parbhani.
4. Ajmal Hussain S/o Iqbal Hussain,
Age : 37 Years, Occu. : Agril. & Business,
R/o Vijay Nagar, Purna,
Dist. Parbhani.
alleged to be Bablu S/o Lobhaji Late. -- -- APPELLANT
(Orig. Defendants)
V E R S U S
1. Sayyed Kamal Ahmad S/o Sayyed Ali Hasan,
Age : 57 Years, Occu. : Agril. & Business,
R/o Kamal Talkies, Purna,
Dist. Parbhani.
2. Sayyed Ahmad Hussain S/o Ali Hasan,
Age : 60 Years, Occu. : Agril. & Business,
R/o Lal Ginning Mill Purna,
Dist. Parbhani. -- -- RESPONDENTS
(Orig. Plaintiffs)
Shri A. G. Godhamgaonkar, Advocate for the Appellants.
Shri S. C. Bora, Advocate holding for Shri S. G. Chapalgaonkar,
Advocate for the Respondents.
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CORAM : N. D. DESHPANDE, J.
Date on which judgment reserved : 20.11.2009.
Date on which judgment pronounced : 16.12.2009.
J U D G M E N T :
1. These are three second appeals directed against a
common judgment and order dated 15th January, 2007, passed by
the learned Principal District Judge, Parbhani in two Regular Civil
Appeals No. 168/2000 and 169/2000 and one more Regular Civil
Appeal No. 89/2003 decided by a separate judgment on the same
day, all arising out of three civil proceedings between the same
parties in respect of the estate of deceased named one Iqbal Hussain,
who died on 28.04.1991, resident of Lal Jinning Compound at
Purna, District Parbhani.
02. In all these three proceedings before the Trial Court and
the First Appellate Court below, parties had agreed by a pursis for
recording evidence in common, and for reading the same in all these
proceedings for deciding their respective claims in the counter suits
and appeals as well. Consequently, the dispute being one referring
the estate of Iqubal Hussain and the same involves common question
of law and facts resulted in a common decision of similar issues and
points raised throughout in proceedings. So also before this Court
in Second Appeals.
03. The appellant namely Asma Hussain firstly applied, for
succession certificate as widow and legal heir of deceased Iqbal
Hussain, then jointly with her son namely appellant Ajmal Hussain
and married daughter Salmabanu, all appellants filed suit for
declaration and injunction as legal heirs, so as to claim to the
property both movable and immovable of the deceased which
includes suit property namely survey No. 16, 16/1, 16/2, 17/1 and
17/2 situated at Purna, District Parbhani, within the limits of Purna
Town and also sanctioned layout of survey No. 16.
04. Heard arguments of both the sides at length. The
substantial questions of law as formulated for consideration are as
under :
i. As to the paternity of two children born namely Ajmal
Hussain and Salma Banu.
ii. As to the conduct of the deceased Iqbal Hussain
acknowledging the marriage and as such ratification of
the same.
iii. As to the provisions of Mohammedan Law as to
marriage and applying those whether Asma @ Padma
Hussain can be said to have married Iqbal Hussain.
05. Admittedly, both the respondents and one Nissar Ahmed
who is non resident Indian (London based) are real brothers of
deceased Iqubal Hussain. However, he is not party to any of the
proceedings and appears to be disinterested in the litigation between
the two parties namely present appellants on one side and
respondent brothers duo on other. Deceased Iqubal Hussain had
married to Ayeshabegum who died in the year 1985, pre-deceased
Iqubal Hussain. Iqubal Hussain was a Member of Legislative
Assembly as well as elected President of Municipal Council, Purna
and was a social and political figure. There was dacoity on
20.06.1985 in the house of deceased Iqubal Hussain at Lal Jinning
Compound, Purna and in the said dacoity Iqubal Hussain and his
wife Ayeshabegum were severely beaten by the miscreants.
Ayeshabegus succumbed to the injuries and Iqubal Hussain narroly
escaped from the death. Since, then he was not keeping good
health, suffered paralytic attack and become indisposed. He died on
28.04.1991 in Government Hospital at Parbhani due to prolonged
illness.
06. According to the respondents duo, they being real
brothers of Iqbal Hussain, they succeeded to the estate of deceased
Iqbal Hussain who died issueless. Therefore, on 21.09.1991, the
respondents duo brothers filed a civil suit bearing Special Civil Suit
No. 287/1991 in the Court of Civil Judge Senior Division, Parbhani,
against these four appellants, for declaration that defendant No. 1
Padma is unconcerned with the family of the plaintiffs not being the
wife of late Iqbal Hussain, that defendant No. 2 Manju and
defendant No. 4 Bablu her daughter and son are not related in any
capacity with the family of the plaintiffs and more particularly with
the late Iqbal Hussain as alleged wife, daughter and son respectively,
and for perpetual injunction restraining them from dealing with
immovable property including the suit property left by the deceased
Iqbal Hussain. A declaration was also sought in respect of will dated
03.01.1987 of Iqbal Hussain as false, fabricated and bogus document
for allowing false and bogus claim of the estate of the deceased,
fraudulently obtained by them. The said civil suit of the respondents
bearing Special Civil Suit No. 287 of 1991 was renumbered as
Regular Civil Suit No. 25 of 1997.
07.
The appellants on 03.10.1991 filed a Regular Civil Suit
No. 303 of 1991 in the Court of Civil Judge Senior Division, Parbhani
against the respondents No. 1 and 2 the brothers of Iqbal Hussain for
declaration that appellants Ajmal Hussain and Salmabano are the
legitimate son and daughter and Asma Hussain is the legally wedded
wife of deceased Iqbal Hussain and also prayed for perpetual
injunction restraining the defendants/respondents not to interfere or
cause any damage to the property left by the deceased Iqbal Hussain
referring to the suit property situated at Purna, Taluka and District
Parbhani. They also applied for temporary injunction
simultaneously.
08. Shortly thereafter on 11.11.1991 appellant No. 1 Asma
Hussain made an application registered as Misc. Case No. 69/1991
for grant of succession certificate in respect of bank account,
National Saving Certificate, pension amount of deceased Iqbal
Hussain who died on 28.04.1991 in the capacity as widow of Iqbal
Hussain and only names of her daughter Salmabano and her son
Ajmal Hussain who are the present appellants No. 2 and 4 were
shown as near relatives of the deceased in para 3 and referring to the
debts and securities of deceased Iqbal Hussain in the said application
before the Civil Judge Senior Division, Parbhani, without mentioning
the names of three brothers including the present respondents duo
who had filed the above mentioned civil suit for declaration and
injunction.
09. Both the civil suits are thus, in the nature of counter
claims or can be termed as cross suits filed by the parties against
each other to claim the estate of deceased Iqbal Hussain, more
particularly to the suit property. As such, the pleadings of the parties
though separately filed by them in the suits are not two different
cases, but one and the same. All material facts and contentions
raised by them remained the same throughout in all the three
proceedings. Therefore, they chose to lead evidence in common and
referred all oral and documentary evidence recorded therein for
reliance by filing pursis to that effect for just decision and disposal of
these proceedings.
10. So far second appeal No. 255 of 2007 is concerned, the issue is
limited to a challenge to an order under Section 383 of the Indian
Succession of Act of revocation of succession certificate granted in
the name of appellant Asma Hussain in Miscellaneous Case No. 69 of
1991. I have gone through said impugned order, it is observed that
it was not necessary to discuss the evidence recorded in these two
cross suits for declarations and injunction between the parties which
are substantive suits and the entire discussion was focused on the
sole ground of suppression of material facts by the appellants.
However, there is some reference made to the oral testimony of
Abdul Latif Power of Attorney Holder of appellant Asma Hussain.
The application for revocation of succession certificate made by the
brother of the deceased Iqbal Hussain which is in-confirmity with the
stand taken and the grounds raised by them for revocation of the
impugned succession certificate before the Lower Court. The
appellant/applicant Asma Hussain neither gave evidence in person
before the Court nor before the Commission throughout the
proceeding. The relations of the respondents as real brothers of
deceased Iqbal Hussain were known to the appellant and she had
apprehension of challenge by them as legal heirs i. e. to the estate of
the deceased Iqbal Hussain. Now doubt, she is guilty of suppression
of material facts and i. e. sufficient ground for revocation of
impugned succession certificate under Section 383 of the Indian
Succession Act, in the light of the evidence and other two
proceedings. The said impugned order of the First Appellate Court is
upheld.
11. Now coming to the claims of the appellants in the two cross
suits by the two appeals and the substantial questions of law
mentioned above, learned counsel Shri P. G. Godhamgaon for the
appellants relied on the provisions of Mohammedan Law application
to paternity of two children namely Ajmal Hussain and Salmabanu,
referring to the conduct of the deceased Iqbal Hussain
acknowledging the marriage and ratification of the same in the
absence of direct proof of marriage by them for presumption of
paternity and of the marriage under Rule 69, much emphasis was
given on these rules on four points :
(a) Consumption of marriage (presumed from valid retirement),
[Rule 69 (ii)(a)]
(b) A continuous and a prolonged cohabitation [Rule 69 (ii)(d)]
(c) Acknowledgment of marriage [Rule 69 (ii)(b)]
(d) Acknowledgment of the paternity of a child [Rule 69 (ii)(c)]
Thus the doctrine of acknowledgment or ikrar for confirming a
status of legitimacy of a child whether a son or daughter.
Acknowledgment of paternity by father or mother [Rule 144
(i) and (ii)] were pressed in service in the course of arguments. As
such, acknowledgment of paternity of a child may be made either by
the father or mother and generally made by the father was the bone
of contention of arguments advanced by the learned counsel for the
appellants. Maternity is a fact and paternity is an inference accepted
universally. He went on arguing that acknowledgment may be
expressed or implied [Rule 144(i)] and no need of proof of express
acknowledgment in muslim and any Mohammedan if the child is
having openly treated as such. So very treatment and conduct
leading to such an inference amounts to acknowledgment in Law.
12. It is interesting to note that both the parties relied on a
decision of Privy Council reported in AIR 1922 PC 159 Sayyed
Habibur Rahman Choudhary and another V. Sayyed Saltaf Ali
Choudhary and others.
13. Shri Godhamgaonkar, learned counsel for the appellants
submitted that since a muslim marriage with mutual consent and
proposal and acceptance need not be in any particular form. No
religious ceremony is required for validity of marriage. The marriage
can be presumed from the fact of an acknowledgement by the man
of the woman as his wife and it can be in the absence of direct proof
from
i. Prolonged and continual cohabitation as husband and
wife or
ii. The fact of acknowledgment of the man of the paternity
of the child born to the woman, provided all the conditions of a valid
acknowledgment are fulfilled, or
iii. The fact of the acknowledgment by the man of the
woman as his wife. Reliance was placed on the ratio
"Although according to Mohammedan law ikrar or
acknowledgment in general stands upon much the same footing as
an admission as defined in the Evidence Act, acknowledgment of
parentage and other matters of personal status stand upon higher
footing than matters of evidence and form a part of the substantive
Mohammedan law".
Much emphasis was given on the point that, "Whether
legitimacy cannot be established by direct proof of such a marriage
acknowledgment is recognized as Mohammedan law as a means
whereby marriage of parents or legitimate decent may be established
as a matter of substantive law.
"Acknowledgment has only the effect of legitimization where
either the fact of the marriage or its exact time with reference to
legitimacy of child's birth is a matter of uncertainty".
The acceptance in a contract of marriage may also be made in
any form, the acceptance should however be unconditional.
14. The presence of kazi at the time of contract between the
parties can be dispensed with no formalities by way of religious rites
are at all necessary, marriage moreover a civil contract and no priest
or kazi is necessary for its performance. Ceremony of social nature
may be performed, though not essential. A valid marriage may be
proved directly by production of some document. If the parties to
the marriage having no legal, physical and moral impediments to
sexual intercourse, retire into privacy, they are said to be valid
retirement. He quoted instances from record and documents for
presumption of marriage from cohabitation and presumption of
validity. It was further argued that a marriage between a Hindu and
Hindu woman not already married, her marriage with Mohemmadan
is void and issue is not illegitimate.
15. Admittedly, neither appellant Asma Hussain nor her children
appellants Ajmal Hussain and Salmabano step in the witness box
and, therefore, certain circumstances of marriage and paternity are
thus become relevant and those were canvased by Shri
Godhamgaonkar, learned counsel for the appellants and according to
him, those have been established and duly proved on record. So the
case of the paternity of the children is to be independently weighed
and its bearing would be on the issue of marriage of Asma Hussain
by indirect evidence. It was pointed out that there is documentary
evidence of marriage called siyanama between Asma Hussain and
Iqbal Hussain which took place at Secundrabad in the year 1962.
The said document being of 30 years old document requires
consideration without formal proof. The siyanama discloses that
Asma Hussain as muslim.
16. The appellants also relied on siyanama of marriage of
Abdullatif with Salmabano dated 02.05.1987. The same is signed by
deceased Iqubal Hussain as father of Salmabano. Thus the paternity
of Salmabano should not be doubted.
17. The appellant Asma Hussain is receiving M. L. A. pension afte
demise of Iqubal Hussain. The nomination of Asma Hussain as
nominee in the bank account of deceased Iqubal Hussain in various
banks, joint account in the District Central Co-operative Bank, legal
nomination is shown of Asma Hussain, joint account in District
Central Co-operative Bank account No. 10303, joint locker No. 20
and 5 in Parbhani District Central Co-operative Bank, Purna branch
and authority letter allowing Asma Hussain to operate the bank
account with District Central Co-operative Bank Parbhani were also
relied by the appellants. In addition to it certain National Savings
Certificates purchased by the deceased Iqubal Hussain, appellant
Asma Hussain is shown as nominee. The return of property in a
criminal case was also ordered for handing over to Asma Hussain by
an order of Judicial Magistrate First Class, Vasmat. Some letters
written by Nissar Ahmad, the brother of deceased admitting the
relationship of Asma Hussain with deceased Iqubal Hussain also
relied by the appellants. Ajmal Hussain was admitted in school by
Iqubal Hussain and all these pieces of evidence were referred for
reliance in support of their claim.
18. I have gone through the impugned judgments of both the
Courts below carefully. The learned First Appellate Court records
his findings on three points which would certainly cover the real
dispute between the parties and the discussion made therein is very
important for it is the final Court of facts. It refers to both the
counter suits where evidence was recorded in common as the issues
were identical question of fact and law. The appellant Asma Hussain
was residing in the same residential house and compound, however,
it was not considered as living in relationship or cohabitation as
husband and wife. Non examination of appellant Asma Hussain was
considered fatal to the claim of marriage. The evidence of general
power of attorney holder namely Abdul Latif S/o Abdul Rahim
cannot be considered as evidence on all relevant issues. Asma
Hussain was working as a maid servant and residing in a separate
room at Lal Jinning Compound and voters list figured her by name
Padma Lobnaji Late prepared in the year 1984. It is admitted that
Asma's real name is Padma, who was residing in Lal Jinning
Compound and thus, there is no evidence for continuous
cohabitation with the deceased Iqubal Hussain.
19. The document Siyanama about the marriage was also held not
proved and was not considered for any presumptive value and
rightly so in the light of non examination of Asma Hussain for
discarding her status as wife of Iqubal Hussain in any form
recognized by the Mohammedan Law. Both the Courts below which
are fact finding Courts had discussed oral testimony of all the
witnesses and every piece of documentary evidence admissible and
inadmissible, in order to find out the real relationship of the
appellants with the deceased Iqubal Hussain. Mere assertion of a
claim to a status or character to prove the relationship with the
deceased for certain claim to the estate of the deceased requires
some evidence, even for raising presumption when the fact in issue is
being tried in respect of dead person. The relationship is such as
matrimony and paternity is a matter of belief and, therefore, mere
probabilities would not be sufficient, but the issue has to be
answered in terms of preponderance of probabilities in the absence
of direct evidence or substantive proof when the matter is hotly
contested on the point of falsity of the claim. It is true that civil
proceedings are unlike criminal trial "Standard of proof is
preponderance of probabilities and not beyond the reasonable
doubt". The process would be as simple as weeding out the
improbabilities and impossibilities and then weighing the
probabilities to know the preponderance of probabilities lies in
whose favour. It is observed by the Apex Court in the judgment
reported in AIR 1975 Supreme Court 1534 Dr. N. G. Dastane vs.
Mrs. S. N. Dastane.
"The normal rule which governs civil proceedings
is that a fact can be said to be established if it is
proved by a preponderance of probabilities. This
is for the reason that under the Evidence Act,
section 3, a fact is said to be proved when the
court either believes it to exist or considers its
existence so probable that a prudent man ought,
under the circumstances of the particular case, to
act upon the supposition that it exists. The belief
regarding the existence of a fact may thus be
founded on a balance of probabilities. A prudent
man faced with conflicting probabilities
concerning a fact-situation will act on the
supposition that the fact exists, if on weighing
the various probabilities he finds that the
preponderance is in favour of the existence of the
particular fact. As a prudent man, so the court
applies this test for finding whether a fact in
issue can be said to be proved. The first step in
this process is to fix the probabilities, the second
to weigh them, though the two may often
intermingle. The impossible is weeded out at the
first stage, the improbable at the second. Within
the wide range of probabilities the court has
often a difficult choice to make but it is this
choice which ultimately determines where. the
preponderance of probabilities lies. Important
issues like those which affect the status of parties
demand a closer scrutiny than those like the loan
on a promissory note "the nature and gravity of
an issue necessarily determines the manner of
attaining reasonable satisfaction of the truth of
the issue"
20. The nomination papers submitted and the bank accounts, so
also the Fix Deposit Receipts in the name of Asma Hussain of the
relevant period were also taken into consideration by the fact finding
Courts and did not find it sufficient for raising presumption. Various
authorities also have been discussed which were relied by the parties
and no re-appreciation of evidence would be permissible by this
Court.
21. Thus upon consideration of record and after hearing both the
sides at length, the present second appeals are devoid of merits and
deserves to be dismissed. All three appeals stand dismissed with
costs and disposed of accordingly by this common judgment.
[ N. D. DESHPANDE, J.]
bsb/Dec. 09
