Sunita Wd/O Madhukar Jadhav vs Rekhabai Madhukar Jadhav And ...
2022 Latest Caselaw 11461 Bom

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

                   CIVIL REVISION APPLICATION NO. 45 OF 2019

 Sunita wd/o Madhukar Jadhav Vs. Rekhabai Madhukar Jadhav & Anr.

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. B.N. Mohta, Advocate for the applicant
                                  Mr. N.R. Tekade, Advocate for respondents



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 11th NOVEMBER, 2022.

Heard Mr. Motha, learned counsel for applicant the and Mr. Tekade, learned counsel for non- applicants.

2. The revision challenges the order dated 12/6/2018 passed by the Civil Judge (Sr. Dn.) Amravati in RMJC No. 278/2017, whereby the application u/s 372 of the Indian Succession Act filed by the non-applicants for grant of succession certificate has been allowed and the subsequent judgment dated 24/1/2019 passed by the learned Appellate Court, dismissing the appeal.

3. It is contended by Mr.Mohta, learned counsel for applicant that both the Courts have erred in holding the non-applicant No.1 to be the legally wedded wife and the non-applicant No.2 to be the daughter of the deceased Madhukar inspite of the fact that, there is no material on record, to indicate the marriage between 2 31-cra-45-19.odt

them. It is submitted that though Sunil Jadhav, as the brother of the deceased Mahdukar has been examined by the non-applicants as PW 2. His evidence, does not indicate any marriage having been performed between the non-applicant No.1 and deceased Madhukar at any point of time and therefore, the impugned judgments, which are based upon the evidence of PW 2 and the documents such as Ration card, Adhar card according to him is not sustainable in law to demonstrate the marriage between non-applicant No.1 and Madhukar and are required to be quashed and set aside. He further submits, that the applicant has duly placed on record the marriage certificate at Exh.34, which has been duly proved by the evidence of DW 2 Shailendra and so also has also placed on record vide Exhs. 35 to 39 documents such as Election Card, Adhar Card, PAN Card, Gas connection card, bank pass book which would indicate that she is the lawfully wedded wife of the deceased Madukar.

4. Mr. Tekade, learned counsel for the non- applicants submits that the evidence of PW 2 Sunil Jadhav, coupled with the documents placed on record is sufficient to demonstrate the factum of marriage. That apart, he submits that even otherwise, since the paternity of the non-applicant No.2 is reflected from the documents, such as the Adhar Card, Ration card, the same cannot be denied and has been rightly upheld by the Courts below. He submits that even otherwise, even if the marriage held to be not proved, the non-applicant 3 31-cra-45-19.odt

No.2, would be entitled to a certificate in view of the fact that she is the child born to the non-applicant No.1 from Madhukar and thus would have a right in the properties of Madhukar.

5. The entire position, depends upon the evidence of Sunil Jadhav, the brother of the deceased. A perusal of his evidence at Exh.13, would indicate that it does not make any mention as to the date of the marriage, the venue of the marriage, whether he was present in the marriage or any other details, regarding the marriage, alleged to have been performed between the non-applicant No.1 and deceased Madhukar. The entire evidence, is devoid of any such material to indicate performance of any such marriage between the deceased Madhukar and non-applicant no.1. Thus, the evidence of Sunil Jadhav, PW2, does not indicate any performance of marriage between the deceased Madhukar and non- applicant No.1. There is no other evidence whatsoever on record to indicate the performance of any rites or ceremonies relating to the marriage claimed to have been solemnized between the deceased Madhukar and non- applicant No.1. The mere entries, in the ration card or the Adhar card by itself, cannot be construed to be demonstrative of the factum of marriage having been performed.

6. As against this, the applicant has placed on record the certificate of marriage at Exh.34, which indicates the marriage having been performed between the deceased Madhukar and the present applicant on 4 31-cra-45-19.odt

07/7/2002, which has been duly entered in the records of the Buddhist Society of India. (page 20). This certificate has been duly proved, by the evidence of DW 2 Shailendra Jadhav, who has entered into the witness box at Exh.41 and has categorically stated that marriage was performed in his presence. The applicant, has also placed on record documents such as Adhar card, PAN card, election card, etc. in support of the marriage. However, the clinching piece of evidence is Exh.34 (marriage certificate) and evidence of DW2-Shailendra at Exh.41, which demonstrates the factum of marriage having been performed between the applicant and the deceased Madhukar.

7. The Courts below have not appreciated the evidence of DW 2 -Shaliendra and Exh.34 in the proper perspective and has merely relied upon the evidence of PW 2 Sunil Jadhav to hold the existence of marriage between deceased Madukar and the non-applicant No.1, which has discussed above, is not spelt out from his evidence. That being the position, the impugned order of the Trial Court and the judgment of the Appellate Court insofar as it grants succession certificate to non-applicant No. 1 cannot be sustained.

8. Insofar as the non-applicant No. 2 is concerned, the documents on record, namely the Adhar card and ration card indicate Madhukar to be her father, in view of which though her paternity may be disputed, however, the documents indicate otherwise and therefore, she would be entitled to claim herself as a 5 31-cra-45-19.odt

legal heir of deceased Madhukar

9. In view of the above, the order dated 12/6/2018 by the Trial Court and the judgment dated 24/1/2019 by the Appellate Court are hereby partly quashed and set aside insofar as they grant succession certificate to non-applicant No.1 Rekha and it is held that, the applicant Sunita Jadhav and non-applicant No.2 Kavita Madhukar Jadhav would be entitled to the certificate. The application is accordingly partly allowed and the impugned order and judgment hereby stand modified in terms of above. No costs.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:14.11.2022 10:43