Devendra S/O Bhalchandra Sapkal ... vs Smt. Lata W/O Bhalchandra Sapkal
2017 Latest Caselaw 4246 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


             CIVIL REVISION APPLICATION NO.48 OF 2016



 1]       Devendra s/o Bhalchandra Sapkal
          Aged: Adult, Occ: Business.

 2]       Govind s/o Bhalchandra Sapkal,
          Aged: Adult, Occ: Service.

          Both resident of Aasara Colony,
          Near Akot Naka, Akot.

 3]       Poonam w/o Vishal Ingale
          Aged: Adult, Occ: Home-maker.

          [Prior to marriage Ku. Poonam
          Bhalchandra Sapkal]

          R/o Near House of Rama Ingale,
          Brahman Vetal, Lonar, Tah. Lonar,
          District Buldana.            ....... APPLICANTS


                                   ...V E R S U S...


          Smt. Lata w/o Bhalchandra Sapkal
          Aged: Adult, Occ: Nil,
          R/o Narsing Colony, Near Narsingh
          Mandir, Akot, Tah. Akot,
          District Akola.                           ....... NON-APPLICANT
 -------------------------------------------------------------------------------------------
          Shri U.J. Deshpande, Advocate for Applicants.
          Shri V.B. Bhise, Advocate for Respondent.
 -------------------------------------------------------------------------------------------




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  cra48.16.J.odt                       2

          CORAM:            DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

          DATE:                th
                            10    JULY, 2017.

 ORAL JUDGMENT



 1]               By this revision the legality, validity and propriety of

the order passed by the District Judge-1, Akola in Regular Civil

Appeal No.35/2011 on 03.02.2014 is challenged. By the

impugned the learned First Appellate Court has set aside the order

passed by Civil Judge, Senior Division, Akola in M.J.C.

No.335/2009 on 17.08.2011 rejecting the application for grant of

succession certificate in favour of respondent herein and directed

to issue succession certificate in the name of present applicants

and also in the name of respondent Lata Sapkal.

2] Brief facts of the revision can be stated as follows:

Respondent herein has filed an application under

Section 372 of the Indian Succession Act, 1925 for grant of

succession certificate in respect of the service benefits and dues of

her deceased husband Bhalchandra. According to her, she was

married with Bhalchandra on 31.03.2007 and the said marriage

was also registered. Deceased Bhalchandra was serving in the

Police Department as Assistant Sub-Inspector at the time of his

death on 08.07.2009 at Akola. He has left behind the respondent

and also the present appellant Nos.1 and 2 who are his sons and

applicant No.3, the married daughter from his first wife Kalpana.

It was her case that as Police Department was not ready to give

her share in the service benefits of deceased Bhalchandra, she was

constrained to ask for the succession certificate.

3] The applicants resisted her application contending

inter alia that respondent is not in any way entitled for the

succession certificate as she is not legally wedded wife of their

father. It was submitted that their father Bhalchandra has

performed the marriage with their mother Kalpana in the year

1980, whereas the respondent had married with one Narayan

Trambak Sabale. She had two sons from Narayan Sabale, born on

12.05.1990 and 02.11.1992 respectively. After the death of her

husband Narayan Sable on 13.03.2006, all his movable and

immovable property devolved upon the respondent. Till today in

the record respondent's name is continued as the wife of Narayan

Sable and in such situation, it was contended, she cannot be

entitled to get succession certificate in respect of the service dues

of their father. Hence, they are alone entitled to get succession

certificate.

4] In support of her claim respondent examined herself;

one witness by name Rajendra Mune in whose house she was

residing on rent along with deceased Bhalchandra and one more

witness by name Ramakant Mallekar to prove that he was present

at the time of her marriage with Bhalchandra. She has, further

produced on record other documentary evidence by calling upon

one Mr. Gajanan Shriram Ingale from police head-quarter to prove

the service record of Bhalchandra. As against it, the applicant

No.1 examined himself and also lead the evidence of the brother

of the deceased namely, Ashok Sapkal and Dr. Waghela.

5] On appreciation of this evidence, the learned Trial

Court was pleased to reject the application filed by the respondent

and allowed the claim of the applicants for succession certificate.

6] Being aggrieved, the respondent herein preferred an

appeal before the District Court and the District Court has

reversed the finding recorded by the Trial Court and held both the

parties entitled for the succession certificate to get the service

dues of deceased Bhalchandra.

7] This judgment and order of the Trial Court of First

Appellate Court is challenged in this revision by learned counsel

for applicants by submitting that there is absolutely no evidence

on record to prove that respondent was the legally wedded wife of

deceased. Her pleadings are conspicuously silent as to when,

where and in which manner she got married with deceased

Bhalchandra. The registration certificate of the alleged marriage

cannot be a proof of the legality and validity of marriage.

Moreover the date of the marriage mentioned in the registration

certificate is also not correct. It is urged, that in evidence before

the Court also, respondent has not given any particulars about the

performance of the requisite ceremonies for proving the legality

and validity of the marriage. Admittedly, her name was also not

appearing in the nomination form filled in by deceased. In such

circumstances, on the face of it also, when respondent has failed

to prove her claim for succession certificate, the First Appellate

Court has committed an error in reversing the order passed by the

Trial Court of rejecting her application and the claim. It is urged

that the order passed by the Trial Court was on appreciation of

oral and documentary evidence on record in a proper and just

manner and it was not correct on the part of the First Appellate

Court to set aside those findings of the learned Trial Court and

allowed the appeal preferred by the respondent.

8] Per contra, learned counsel for the respondent has

supported the order of the First Appellate Court and further

submitted that within the limited scope of revisional jurisdiction,

this Court should be slow in inteferring into the order, as the view

taken by the First Appellate Court is also a possible and proper

view.

9] In the light of these submissions advanced by learned

counsel for both the parties, the only point arising for my

consideration is whether the impugned order passed by the First

Appellate Court is just, legal and proper?

10] Facts of this case are not in the realm of dispute. It is

admitted that Bhalchandra has first married with Kalpana and had

three children from Kalpana, namely, the applicant Nos.1 to 3.

Kalpana died on 24.03.1999. It is also not disputed by the

respondent also that first she was married with Narayan Sable and

she had two sons from him. Narayan Sable died on 13.03.2006

and thereafter she has claimed his property.

11] In backdrop of these factual aspects, the case of

respondent is that she was residing with deceased Bhalchandra as

his wife and their marriage was also solemnized on 31.12.2007.

Their marriage was also registered and she has produced that

registration certificate. It is her case that her name also came to be

added in the wedding invitation card of applicant No.3 Poonam,

as the wife of deceased. According to her case, therefore, she is

also entitled to get succession right in the service dues of her

husband along with his children from the first wife Kalpana.

12] As against it, the case of the applicants is that the

marriage has to be proved by evidence of performance of the

requisite ceremonies like 'Kanyadan' and 'Saptapadi'.

Mere production of the marriage certificate is not sufficient to

prove the legality and validity of marriage, especially in the facts

of the present case as there is dispute relating to the date of the

marriage mentioned in the certificate. It is urged that in the

application filed by the respondent she has not at all given the

details as to when she got married with deceased, at which place

and by which way? Though the factum of her marriage with

deceased Bhalchandra was specifically denied in the reply filed by

the applicants, she has not amended her application to give those

details. In evidence before the Court she has admitted the fact that

she does not know the name of the priest who has performed her

marriage and she has also not given the details of the marriage in

her application.

13] Thus, according to learned counsel for the applicants

mere proof of respondent residing with deceased or mere

production of the registration certificate cannot be sufficient to

confer the status of husband and wife. To substantiate this

submission, learned counsel for the applicants has relied upon the

judgment of the Apex Court in the case of Surjit Kaur vs. Garja

Singh and others (1994) I SCC 407, wherein it was held that, "the

bare fact of a man and a woman living as husband and wife does

not, at any rate, normally give them the status of husband and

wife even though they may hold themselves out before society as

husband wife and the society treats them as husband and wife."

It was held that prima facie, the expression 'whoever marries' must

mean validly married and whose marriage is valid one. By placing

reliance on the judgment of this Court in the case of Shubhangi

Krishna Patil vs. Rupali Krishnant Bachhe (Patil) and another

2010(1) Mh.L.J. 253; it is urged that, without proof of the

customary ceremony, the marriage cannot be proved by

production of the registration certificate. It is also urged that in

the instant case, at the most the evidence is only of deceased and

respondent residing together, but without the proof of the

performance of the proper ceremonies their marriage cannot be

proved. Therefore, status of "validly married" cannot be conferred

on the respondent as despite opportunity given to her she has

failed to prove the performance of the ceremonies or even the

name of the priest who has performed those ceremonies.

14] Learned counsel for the applicants has then submitted

that in the instant case even the nomination form filled in by

deceased was in the name of his first wife Kalpana and the

children from her i.e. present applicants. Therefore, applicants

alone are entitled to get certificate. It is submitted that if

Bhalchandra had really married with the respondent, he would

have made the necessary changes in the nomination form, which

he has not done.

15] Per contra, learned counsel for the respondent has

relied upon the judgment of the Apex Court in Vidyadhari and

Ors. v. Sukhrana Bai and Ors. AIR 2008 SC 1420 to submit that in

this authority though the claimant was not legally wedded wife,

but as she had stayed for long time as wife of the deceased and

was also the mother of his four children, she was held entitled to

succession certificate.

16] Learned counsel for petitioners has however, tried to

distinguish the facts of this judgment by pointing out that in that

case she was made the nominee by the deceased, and therefore

having regard to this fact, it was held that she is entitled to grant

of succession certificate.

17] Learned counsel for the respondent has then placed

reliance on the judgment of Chanmunia vs. Virendra Kumar Singh

Kushwaha and another (2011) 1 SCC 141 to submit that proof of

long cohabitation without valid marriage can raise the strong

presumption of the marriage and can entitle the lady to get all the

rights of the legally wedded wife. Learned counsel for petitioners

has distinguished this judgment by submitting that the issue raised

for consideration in this judgment pertains to the entitlement of a

woman for maintenance under Section 125 of the Code of

Criminal Procedure. Moreover, in this judgment Apex Court has

referred this issue to be decided by larger Bench. According to

learned counsel for respondent, Section 125 of the Code of

Criminal Procedure refers to a legally wedded wife and despite

that it was held that long cohabitation can confer such marital

status, in the present case, Section 372 of the Indian Succession

Act does not require for a 'wife' to be "legally wedded wife" to get

the succession certificate.

18] Reliance is placed by learned counsel for petitioners

on the judgment of this Court in the case of Smt. Lata w/o Eknath

Patil vs. Kum. Tanuja d/o Eknath Patil 2009(2) ALL MR 331 to

submit that even in the case of alleged 'Gandharva Vivah' it was

held that there was no proof about the 'legal marriage' and hence,

such lady cannot be entitled to get succession certificate.

19] Thus perusal of all these judgments relied upon by

learned counsel for both the parties makes it clear that ultimately

each case depends upon the facts and circumstances of that case

and there cannot be any hard and fast format or a strait jacket

formula to decide whether succession certificate should be issued

particular case or not, in favour of a lady who claims to be the

legally wedded wife.

20] Herein the case there is definitely a certificate of

registration of the marriage, which is issued in respect of the

marriage between the respondent and deceased Bhalchandra.

As per the said registration certificate, the marriage was

performed on 31.03.2007. It is also a matter of record that in the

invitation card of Bhalchandra's daughter, Poonam, who is

applicant No.3 herein the name of the respondent was mentioned

as invitee, in her capacity, as the wife of Bhalchandra. There is

also the evidence of two witnesses by name Rajendra Mune and

Ramakant Mallekar proving that they had seen that deceased

Bhalchandra and respondent were residing and cohabiting

together as husband and wife. The witness Rajendra Mune, in

whose house they were residing on rent along with applicant No.3

Poonam, has deposed about the same. He has further stated that

his parents were present for the wedding of Bhalchandra with

respondent. Further, there is evidence of witness Ramakant

Mallekar who has stated that he had occasion to go the house of

the deceased and he was introduced by deceased with respondent

as his wife. He has further stated that after deceased was admitted

in the hospital and succumbed to death, it was respondent, who

has performed the funeral rights and at that time he was present.

Thus, as rightly submitted by learned counsel for the respondent,

there is sufficient evidence on record of long cohabitation between

deceased and, respondent as husband and wife.

21] As regards the legality of the marriage, admittedly at

the time Bhalchandra married with respondent, his first wife

Kalpana was not alive as she has died on 24.03.1999 itself.

Similarly, respondent's first husband Narayan Sable had also died

on 13.03.2006, and therefore, none of the spouses of either

deceased or respondent was living at the time of their marriage

on 31.03.2007.

22] Now, whether the marriage was performed as per the

rights and customs of Hindu religion, on this aspect it is true that

there is no pleading about the performance of particular religious

ceremonies, but these were the matters of the evidence. In the

application she has stated the fact that she was wife of deceased

Bhalchandra. Both the Courts, Trial Court and the First Appellate

Court have in this respect rightly held that the absence of material

particulars in the pleading is not sufficient to discard her evidence

as those particulars were the matter of evidence and only the facts

are to be pleaded and not the evidence. Respondent has stated

that in her evidence that she got married with Bhalchandra in one

temple. Her own relatives were present for the marriage.

However, the relatives of the deceased were not present. It may be

true that she is not remembering the name of the priest and the

manner in which the ceremonies took place, but her evidence

shows that marriage had taken place. Then there is also the

evidence of the witness Ramakant Mallekar who was present for

the said wedding. If at all anything remains, then there is

marriage registration certificate, which reveals that the marriage

was registered and as stated above deceased Bhalchandra had

given the respondent status of his wife, by entering her name in

the invitation card of his daughter, as invitee. It is also brought on

record that she was residing with Bhalchandra and has performed

funeral and other rights after his death, she has also got the dues

of Bhalchandra from L.I.C. and the funeral expenses from the

Police department.

23] In the above said backdrop, marriage registration

certificate needs to be looked into, as it is challenged on the

ground that the date of marriage mentioned in the registration

certificate is different. However, respondent has tried to explain

the said fact by deposing that the marriage certificate was in the

custody of Bhalchandra and hence, she was not aware about the

date mentioned in it as 31.03.1990 though actually it was

31.03.2007. Learned First Appellate Court has considered that

how the date of 31.03.1990 can be a wrongly mentioned date,

because if married had really taken place on 31.03.1990, then

there was no explanation why the registration thereof was done

after so many years.

24] The registration certificate is however, disbelieved by

the Trial Court on the count that Bhalchandra was admitted in the

Hospital of Dr. Waghela for blood pressure and other cardiac

problem upto 30.03.2007, and therefore, it was highly improbable

that his marriage with respondent will take place immediately on

the next date on 31.03.2007. The First Appellate Court has

considered this aspect also in para 16 of this judgment. The First

Appellate Court has held that after realizing his health problem,

there is nothing unnatural in Bhalchandra performing the

marriage with respondent immediately after his discharge from

the Hospital, as otherwise also she was also cohabiting and

residing with the respondent since long. The First Appellate Court

has also considered the evidence that on 31.03.2007 Bhalchandra

was not on duty though he was discharged from the Hospital on

30.03.2007 itself. The First Appellate Court therefore, accepted

the case of respondent that her marriage has taken place with

deceased on 31.03.2007, as reflected in the registration certificate.

25] Thus, after considering the entire evidence on record

in its proper perspective if the First Appellate Court has taken a

possible view, then as per the settled position of law as the scope

of revisional jurisdiction of this Court is limited and confined only

to decide whether the view taken by the First Appellate Court is a

just, legal and a possible view of the matter, this Court cannot

substitute its opinion in the place of the view taken by the First

Appellate Court, merely because it can also be a possible view.

In exercise of the revisional powers, it is not permissible for this

Court to go into the findings of fact recorded by the Lower Court.

The jurisdiction of this Court in revision is only to the extent of

correction of errors relating to exercise or non-exercise of

jurisdiction or some illegality or material irregularity affecting

prejudicially rights of parties.

26] In this case, the First Appellate Court has also

considered and given the weightage to the rights of the applicants

also in the service benefits of the deceased and has directed to

issue the succession certificate in the name of respondent as well

as in the name of applicants also.

27] Considering this entire evidence on record, it cannot

be said that the First Appellate Court has exercised its discretion

in an illegal or perverse way, so as to warrant interference therein.

The revision therefore, holds no merits. Hence, stands dismissed.

JUDGE

NSN