Bhaskar Dada Gaware And Others vs Abasaheb Bhaskar Gaware And ...
2022 Latest Caselaw 966 Bom

                                      1                       SA / 883 / 2018


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                        SECOND APPEAL NO. 883 OF 2018
                                     AND
                          CA/14409/2018 IN SA/883/2018

Bhaskar Dada Gaware and others                                 .. Appellants

       VERSUS

Abasaheb Bhaskar Gaware and others                             .. Respondents

                                       ...
                  Mr. C.V. Dharurkar, Advocate for appellants
        Mr. A.D. Sonkawade, Advocate h/f. Mr. A.V. Hon, Advocate for
                        respondents no. 1 to 3, 5 to 7
         Mr. A.S. Mirajgaonkar, Advocate for respondents no. 8 to 11
                      Respondent no. 4 served - absent
                                       ...

                                CORAM          : MANGESH S. PATIL, J.

                                RESERVED ON   : 20 JANUARY 2022
                                PRONOUNCED ON : 27 JANUARY 2022

ORDER :

This is a second appeal by the original defendants no. 1, 9

and 8 being aggrieved and dis-satisfied by the judgment of the trial

court in a suit filed by the respondent no.1 - original sole plaintiff for

general partition and separate possession of his share in the suit

properties which has subsequently been confirmed by the appellate

court partly, which has revised the shares and allotted the shares only

in some of the properties. They are aggrieved by the unanimous

findings of the courts below holding that appellant no. 2 - Chandrakala

is not the legally wedded wife of appellant no. 1 - Bhaskar and that the

appellant no. 3 is their illegitimate child and holding respondent no. 2 -

Pramila to be his legally wedded wife.

2 SA / 883 / 2018

2. I have heard the learned Advocates of both the sides on

the point of admission.

3. It would be appropriate to first of all reproduce the

genealogy of the parties.

Dada (Died 1984) - Bhagirathi (Died 2004) (wife)

Bhaskar (D.1) Narmada (D.3) Suman (D.4) Gayabai (D.5)

Chandrakala (D.9) Pramila (D.2) Suman Barde (D.13) [Held to be second wife] [Held to be First Wife] (3 rd Wife)

Pandurang Abasaheb - (Plaintiff) Mallika - (D.11) Kamal - (D.10) Nanda - (D.6) Amrapali - D.12 Ratnaprabha - (D.7)

For the sake of convenience, the parties would be

hereinafter referred to by their names.

4. Going by the pleadings of the parties, the basic issue that

was framed and decided by the trial court and confirmed by the

appellate court is, as to whether it is Chandrakala or Pramila, the

legally wedded wife of Bhaskar. So far as the paternity of Pandurang,

Kamal, Abasaheb, Nanda, Ratnaprabha, Mallika and Amrapali is

concerned, no dispute was raised about Bhaskar being their father.

5. The learned Advocate for the appellants would vehemently

submit that clinching evidence demonstrating that Chandrakala had

already married to Bhaskar in the year 1968 and was his first wife was

ignored by both the courts. The marriage between them was also

registered, albeit in the year 2013. As against this, there was no proof

3 SA / 883 / 2018

of any marriage between Bhaskar and Pramila. Inspite of such

evidence in favour of the appellants, the courts below have arrived at

an unsustainable conclusion about Pramila and not Chandrakala to be

the legally wedded wife of Bhaskar.

6. The learned Advocate would further submit that assuming

that Chandrakala is not a legally wedded wife of Bhaskar and

Pandurang is their illegitimate son, still, by virtue of provisions of

section 16(3) of the Hindu Marriage Act, 1955, he would be entitled to

claim a share in the parent's property. Now that the right and share of

such illegitimate child is a subject matter which has been referred to a

larger Bench of the Supreme Court in the matter of Revanasiddappa

and another V. Mallikarjun and others; (2011) 11 SCC 1, the right and

share to be received by not only Pandurang but even by Kamal, Mallika

and Amrapali would depend upon the outcome of the decision by the

larger Bench. Therefore, atleast to this extent, the second appeal

deserves to be admitted.

7. The learned Advocate Mr. Sonkawade h/f. Mr. Hon for

respondents submits that this being a second appeal, there are no

circumstances which would enable this Court to interfere in the

concurrent findings of facts arrived at by the courts below. They have

consistently held that Pramila is the legally wedded wife of Bhaskar

and not Chandrakala. The conclusions were arrived at by correct

appreciation of the evidence on the record. There is absolutely no

4 SA / 883 / 2018

perversity in such appreciation of the evidence and consequently, there

is no reason why this Court should now enter into that controversy.

8. I have carefully considered the rival submissions and

perused the papers including the judgments cited at the Bar.

9. So far as the issue regarding legitimacy of appellant -

Pandurang and his other siblings is concerned, as has been mentioned

earlier, both the courts below have consistently held Pramila to be the

legally wedded wife of Bhaskar. The claim of the appellants that

Chandrakala is his legally wedded wife has been turned down.

10. The appellants led evidence in the form of certificate of

registration of marriage between Bhaskar and Chandrakala. However,

admittedly, such a record was brought into existence for the first time

during pendency of the suit before the trial court. Though they claimed

that the marriage had taken place in the year 1968, no reason is

forthcoming in the evidence to demonstrate as to why at no earlier

point of time, steps were taken for registration of the marriage. Not only

this but even during cross-examination, Bhaskar (DW-1) specifically

admitted that he had taken such steps just to help him in the suit and

he had acted at the insistence of appellant - Pandurang who is an

advocate. Meaning thereby, this piece of evidence which has been

clearly created during the pendency of the suit for a specific purpose,

has met the treatment it deserved, at the hands of the courts below,

who have refused to rely upon it.

5 SA / 883 / 2018

11. So far as the other evidence is concerned, except the

highly interested statement of Bhaskar (D.W. 1) no other evidence was

led before the trial court to substantiate the factum of any marriage

between him and Chandrakala. On the contrary, during his cross-

examination, he specifically admitted that he solemnized marriage with

Pramila.

12. True it is that the appellants were simultaneously relying

upon the fact that Bhaskar and Chandrakala have been living together

for years together and even begotten couple of children i.e. Pandurang

and Kamal and the society accepted them as husband and wife.

However, during his cross-examination, he specifically admitted the

fact that he was having illicit relations with number of women. The

villagers were calling him names for having such illicit relations not only

with Suman but also with Chandrakala. If such is the state-of-affairs,

this admission would clinchingly demonstrate that the society was not

ready to accept Bhaskar and Chandrakala to be a man and his wife so

that any presumption could have been deduced by such conduct.

13. Though not in so many words, both the courts below have

rightly understood the effect of such admission while reaching a

concurrent conclusion about Chandrakala being not the legally wedded

wife of Bhaskar. Since this is a finding of fact recorded on the basis of

the evidence discussed herein-above, this Court cannot venture into

6 SA / 883 / 2018

the arena in view of the inherent limitation on its powers under section

100 of the Code of Civil Procedure.

14. The question that now survives is, assuming that

Pandurang and Kamal who are children born to Chandrakala from

Bhaskar and Mallika and Amrapali who are the daughters of Suman

born from him, being illegitimate children, what rights do they have in

view of section 16(3) of the Hindu Marriage Act, 1955.

15. Suffice for the purpose to observe that deviating from the

earlier views in the matter of Jinia Keotin and others V. Kumar Sitaram

Manjhi and others; (2003) 1 SCC 730 and Bharatha Matha and another

V. R. Vijaya Renganathan and others; (2010) 11 SCC 483, in the matter

of Revanasiddappa and another V. Mallikarjun and others (supra), the

issue as to the rights of the illegitimate child under section 16(3) of the

Hindu Marriage Act, 1955 only to have a share in the parent's property

and not the ancestral property, has been referred to a larger Bench of

the Supreme Court which decision is still awaited.

16. Needless to state that depending upon the decision of the

larger Bench, there would be a fluctuation of shares of all these

illegitimate children of Bhaskar. Therefore, to this limited extent and

not in respect of the concurrent findings regarding Chandrakala being

not the legally wedded wife of Bhaskar, this Appeal deserves to be

admitted on the following substantial question :

                                    7                          SA / 883 / 2018



        (I)    Whether in the facts and circumstances, by virtue of

section 16(3) of the Hindu Marriage Act, 1955, Pandurang,

Kamal, Mallika and Amrapali can claim a share in the suit

properties which are held to be ancestral and joint family

properties ? If yes, what is their share ?

17. In view of such admission of the second appeal, the

execution and operation of the judgment and decree under challenge

shall stand stayed till decision of the Second Appeal. Simultaneously,

even the appellants shall not create any third party interest in the suit

properties till final disposal of the second appeal.

18. Civil Application no.14409 of 2018 is disposed of.

[ MANGESH S. PATIL ] JUDGE arp/