Godabai Vithoba Mohite And ... vs Laxman Vithoba Mohite And Another
2021 Latest Caselaw 16607 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        918 SECOND APPEAL NO.418 OF 2020


                    GODABAI VITHOBA MOHITE AND ANOTHER
                                       VERSUS
                    LAXMAN VITHOBA MOHITE AND ANOTHER
                                          ...
                       Mr. S.Y. Mahajan, Advocate for appellants
            Mr. Shoyab Shaikh, Advocate for respondent Nos.1 and 2
                                          ...

                                   CORAM :      SMT. VIBHA KANKANWADI, J.

                                   DATE :       01st DECEMBER, 2021


PER COURT :



1              Present appellants are the original plaintiffs, who had filed suit

for partition and separate possession. They are challenging the Judgment

and Decree passed by the First Appellate Court in this Second Appeal.

2 The present appellants-original plaintiffs filed Regular Civil Suit

No.270/2003 before learned Civil Judge Senior Division, Paranda, Dist.

Osmanabad. The said suit came to be decreed on 24.02.2014. It was held

that the plaintiffs have 5/16th share each in the suit properties. It was also

held that the defendant No.1 is having 5/16 th share and defendant No.2 is

2 SA_418_2020

having 1/16th share. The said Judgment and Decree was then challenged by

the original defendants by filing Regular Civil Appeal No.441/2014. The

appeal came to be partly allowed, thereby setting aside the Judgment and

Decree passed by the Trial Court to the extent of grant of share to the

plaintiff No.1 and then modifying the decree. It was then held that the

plaintiff No.2 is having 1/4th share in the share of deceased Vithoba,

defendant No.1 is having 1/2 share and also 1/4th share out of share of

deceased Vithoba and then it was held that the defendant No.2 is having

1/4th share in the share of deceased Vithoba. It is to be noted that the

present respondents have not challenged the said Judgment and Decree as on

today.

3 Heard learned Advocate Mr. S.Y. Mahajan for appellants and

learned Advocate Mr. Shoyab Shaikh for respondent Nos.1 and 2.

4 It has been submitted on behalf of appellants-plaintiffs that the

learned Trial Judge had appreciated the evidence properly and had come to

the conclusion that the suit property is the Joint Hindu Family property of the

plaintiffs and defendants. Plaintiff No.1 was the legally wedded wife of

deceased Vithoba and their marriage was taken place in the year 1973. It

was also held that plaintiffs have proved that the first wife of Vithoba had

expired about 32 years prior to the suit. It was submitted that Vithoba was

3 SA_418_2020

the common ancestor died on 28.01.1996. He had wife by name Yamunabai,

who expired, as per the case of plaintiff, in the year 1971 and thereafter

Vithoba married plaintiff No.1 in the year 1973. Defendants are the children

born to Yamunabai from Vithoba, whereas plaintiff No.2 is born to plaintiff

No.1 from Vithoba. The crucial point was, whether the plaintiffs had proved

that plaintiff No.1 is the legally wedded wife of Vithoba and in order to prove

the same, she had entered the witness box and told about the ceremonies.

Further, she had also examined PW 3 Babasaheb Jagtap, who was the Bank

Manager and in Bank a joint account in the name of plaintiff No.1 and

defendant No.1 was opened. It shows that even at that time defendant No.1

had accepted plaintiff No.1 as the wife of Vithoba. In order to prove the

death of Yamunabai in all three death certificates were produced on record,

which were at Exhs.140, 144 and 148. The learned Trial Judge has discarded

these documents, on the ground that those are issued by the same authority

but in different forms and a well assigned reasons have been given to discard

these documents. In Exh.144, it is stated that date of death of Yamunabai is

21.07.1983, however, it is said that it was registered on 19.07.1983. That

means, the registration was in advance. However, later on it appears that in

Exhs.140 and 148, it was corrected or different contents were given in

respect of date of death and registration date. Date of death is shown as

19.07.1983 and the registration date is given as 27.08.1983. However, the

4 SA_418_2020

certificate Exh.159 issued by Block Development Officer, Panchayat Samiti,

Paranda shows that there was no entry about death in the month of July and

August, 1983 from village Pandharewadi, Tq. Paranda, Dist. Osmanabad. If

there was no entry at all, then how the death certificates came to be issued

was a question and, therefore, the learned Trial Judge branding it as

'doubtful documents' discarded them. However, the First Appellate Court

relied those documents contending that they are the public documents. This

perversity needs to be set at right in this Second Appeal. The learned

Advocate appearing for the appellants also pointed out that though

defendant No.1 gave affidavit-in-chief, did not remain present for the cross-

examination and, therefore, his evidence cannot be considered at all and

thereafter the defendant No.2 entered the witness box. Her evidence cannot

prove that Yamunabai expired in the year 1983, as she has stated that

Yamunabai expired after drought, which had occurred in the year 1973.

When the learned Trial Judge had concluded that plaintiff No.1 was the

legally wedded wife of deceased Vithoba and their marriage had taken place

in the year 1973, the First Appellate Court had not even cared to frame a

specific point to that effect. The Judgment of the First Appellate Court does

not comply with Order 41 Rule 31 of the Code of Civil Procedure and,

therefore, it needs to be set aside and the findings given by the Trial Court

deserves to be restored and benefit has to be given to plaintiff No.2 of the

5 SA_418_2020

decision of the Three Judge Bench of the Hon'ble Supreme Court in Vineeta

Sharma vs. Rakesh Sharma and others, AIR 2020 SC 3717. He, therefore,

claims that substantial questions of law are arising in this case.

5 Per contra, the learned Advocate appearing for the respondents

supported the reasons given by the learned First Appellate Court and

submitted that no substantial questions of law are arising in this case. First

Appellate Court has rightly relied on the public documents i.e. the death

certificates of Yamunabai, which gave her date of death as 19.07.1983.

Those documents were wrongly discarded by the learned Trial Judge. If

Yamunabai had expired in the year 1983, then the alleged marriage of

plaintiff No.1 with Vithoba cannot be said to be legal. Further, the basic

ceremonies, which ought to have been proved by the plaintiff No.1 to prove

the legal marriage, have not been stated and proved. For many facts she has

claimed ignorance, and she was not even aware about when the daughter

was born to her, what was her age at the time of marriage or that of Vithoba,

when the defendant No.2 got married etc. The paternity of Vithoba in

respect of plaintiff No.2 was challenged by the defendants and, therefore, a

strong evidence was required to prove that plaintiff No.1 had legal marriage

with Vithoba. The testimony of defendant No.2 was sufficient to state as to

when Yamunabai expired and the oral partition that had taken place between

6 SA_418_2020

Laxman and Vithoba in the year 1990. After death of Vithoba those

properties had also devolved on the defendants. These factors have been

properly considered by the First Appellate Court.

6 At the outset, it can be seen that as regards vital issues are

concerned, both the Courts are not concurring with each other. The Trial

Court has held that the marriage between plaintiff No.1 and deceased

Vithoba was legal. It was on the basis of the conclusion drawn that

Yamunabai had expired somewhere around 1971 and thereafter plaintiff

No.1's marriage had taken place with Vithoba in 1973. Those documents,

which were discarded by the learned Trial Judge, have been relied by the

First Appellate Court and it appears that the First Appellate Court had not

whispered about Exh.159, which was the certificate issued by the Block

Development Officer, Panchayat Samiti, Paranda. Whether the said certificate

is admissible and what would be its effect on the three death certificates.

Two of which stating that she expired on 19.07.1983 and one stating that she

expired on 21.07.1983, are required to be considered. It can also be seen

from the fact that defendant No.1 failed to face the cross-examination and

then the joint account documents were produced and proved through PW 3,

the Bank Manager. Knowledge of defendant No.1 that plaintiff No.1 is

claiming herself to be the wife of Vithoba can be seen from these bank

7 SA_418_2020

documents. What would be the effect of these documents is then required to

be seen. So also, whether the alleged oral partition between Vithoba and

Laxman could have been protected after Section 6 of the Hindu Succession

Act (as amended in 2005) will have to be considered. The First Appellate

Court has granted shares to plaintiff No.2 and defendant No.2, who are the

daughters of Vithoba from the share of Vithoba. That means, he accepted

that oral partition, but there is absolutely no discussion about the same. No

doubt, as regards plaintiff No.2 is concerned, it is said that she being the

illegitimate daughter of Vithoba can inherit only from the share of Vithoba.

On this point also the reference is now pending before the Hon'ble Supreme

Court in Revansiddappa and another vs. Mallikarjun and others, (2011) 11

SCC 1. Under these circumstances, the case is made out for admitting the

Second Appeal, as it is giving rise to the substantial questions of law, as

contemplated under Section 100 of the Code of Civil Procedure, 1908.

7 Second Appeal stands admitted. Following are the substantial

questions of law :

1 Whether plaintiff No.1 was the legally wedded wife of deceased Vithoba ?

2 Whether the defendants had proved alleged oral partition between Vithoba and defendant No.1 Laxman ?

                                            8                                      SA_418_2020



          3        Whether the First Appellate Court was justified in relying

upon the documents i.e. the death certificates, which were discarded by the learned Trial Judge ?

4 Whether the Judgment of the First Appellate Court adheres to the requirements of Order 41 Rule 31 of the Code of Civil Procedure, 1908 ?

5 Whether the plaintiffs were entitled to share in the suit properties ? If yes, how much is the share ?

8 Issue notice to the respondents. Learned Advocate Mr. Shoyab

Shaikh waives notice for respondent Nos.1 and 2.

9                Call Record and Proceedings.




                                                ( Smt. Vibha Kankanwadi, J. )




agd