Shri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ... on 3 July, 1998

Bombay High CourtShri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ... on 3 July, 1998Equivalent citations: 1998 (4) BomCR 356Author: J PatilBench: J Patil

ORDER J.A. Patil, J.

1. The appellants herein are the original defendants against whom the respondents-plaintiffs hadfiled the suit for declaration and injunction. The declaration sought was that the Gift Deed dated27th February 1976 executed by defendant No. 1 in favour of defendants 2 and 3 was null and voidand the injunction sought was for restraining the defendants from making any construction uponthe suit property. The trial Court decreed the suit partly but the first Appellate Court decreed it fully.Feeling aggrieved thereby, the defendants have preferred this appeal.

2. The relevant facts necessary for the decision of this appeal are in brief that according to theplaintiffs, plaintiff No. 1 Sumati was married to deceased defendant No. 1 Sagun and that plaintiffNo. 2 Bhikaji and plaintiff No. 4 Krishnabai are the son and daughter respectively of the said Sagun.It was further averred in the plaint that the suit property was purchased by plaintiff No. 2 Bhikaji inthe name of his father defendant No. 1 Sagun. According to the plaintiffs, plaintiff No. 1 Sumatibeing the wife of Sagun, had her half share in the suit property. It was alleged that despite thisposition, defendant No. 1 Sagun made a gift of the entire suit property in favour of defendant No. 2and 3 by a registered deed dated 27th February, 1976. According to the plaintiffs, defendant No. 1had no authority to make a gift of the entire suit property. They, therefore, filed a suit for declarationthat the Gift Deed dated 27th February 1976 was null and void. They further prayed for perpetualinjunction restraining the defendants from making any construction in the suit property.

3. The defendants resisted the suit under a common written statement wherein it was pointed outthat they have been living together for the last 40 years and that defendant No. 3 Kamlabai is thewife of defendant No. 1 Sagun and defendant No.2 Chandrakant is their son. The defendants denythe averment that the suit property was purchased by plaintiff No. 2 Bhikaji in the name ofdefendant No. 1 Sagun. The defendants did not admit the factum of marriage between the plaintiffNo. 1 Sumati and defendant No. 1 Sagun and called upon the plaintiffs to prove the same. Thedefendants further denied that defendant No. 1 Sagun had no right or authority to make a gift of thesuit property and contended that the Gift Deed made by him is completely legal.

4. The learned Civil Judge upon consideration of the evidence on record came to the conclusion thatboth the plaintiff No. 1 Sumati and defendant No. 3 Kamlabai were the wives of defendant No. 1Sagun. The learned Civil Judge further held that defendant No. 1 Sagun was however, not entitled tomake a gift of the entire property and at the most he could have made a gift of 1/4 of his disposableshare. In this view of the matter, the learned Civil Judge proceeded to declare the Gift Deed inquestion as null and void only to the extent of the share of the plaintiff No. 1. In substance, he heldthat the Gift Deed was valid to the extent of 1/4th share only. In appeal by the plaintiffs, the learnedAdditional District Judge decreed the suit fully and declared that the Gift Deed dated 27th February

Shri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ... on 3 July, 1998

Indian Kanoon - http://indiankanoon.org/doc/1054706/ 1

1976 is null and void. He also granted the relief of perpetual injunction as prayed for by theplaintiffs.

5. Shri A.J. Kenkre, the learned advocate for the appellants-defendants, contended before me thatboth the courts below were not right in holding that plaintiff No. 1 Sumati was a legally wedded wifeof deceased defendant No. 1 Sagun. Shri Kenkre pointed out the provisions of Article 45 in theFamily Laws and submitted that it was an error to allow the plaintiffs to lead other evidence to provethe factum of marriage between plaintiff No. 1 Sumati and deceased defendant No. 1 Sagun.According to Shri Kenkre, the only evidence by which the marriage can be proved is the certificate ofregistration of marriage. Shri Talaulikar, the learned advocate for the respondents, on the otherhand, contended that there is no specific denial by the defendants in their written statement aboutthe factum of marriage and , as such, the same must be treated as admitted. Shri Talaulikar furthersubmitted that the question about the admissibility of evidence cannot be raised for the first time ina second appeal.

6. For the purpose of convenience I shall first deal with the contention of Shri Talaulikar that thereis no specific denial by the defendants about the factum of marriage. It may be noted that inparagraph 3 of the plaint the plaintiffs have, inter alia, averred that plaintiff No. 1 and defendant No.1 are wife and husband and that plaintiff No. 2 and plaintiff No. 4 are their son and daughterrespectively. This averment in the plaint is controverted by the defendants in paragraph 4 of theirwritten statement in the following words:-

"That the defendant does not admit the contents of para No. 3 of the plaint and the plaintiff is put tothe strict proof thereof."

The contention of Shri Talaulikar is to the effect that the factum of marriage between plaintiff No. 1Sumati and defendant No. 1 Sagun has not been specifically denied as required by the provisions ofOrder VIII, Rules 3 and 5 of the Civil Procedure Code. Rule 3 in substance lays down that it is notsufficient to deny generally the grounds alleged by the plaintiff and the defendant must dealspecifically with each allegation of fact which he does not admit. Rule 4 deals with evasive denialand states that where a defendant denies an allegation of fact in the plaint, he must not do soevasively, but answer the point of substance. Rule 5(1) deals with specific denial and it reads asfollows:-

"5. Specific denial---(1) Every allegation of fact in the plaint, if not denied specifically or bynecessary implication, or stated to be not admitted in the pleading of the defendant, shall be takento be admitted, except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwisethan by such admission." (emphasis provided) If we read the denial made by the defendants inparagraph 4 of their written statement, it will be seen that it complies with the condition laid downby Rule 5(1). It is true that they have not specifically denied the factum of marriage but it must benoted that they have specifically stated that they are not admitting the said fact. This amounts tosufficient compliance of the requirement contemplated by Rule 5(1). Consequently the submission



of Shri Talaulikar that there is no specific denial of the factum of marriage by the defendants willhave to be rejected.

7. Shri Talaulikar relied upon two decisions. The first is Kalyanpur Lime Works Ltd. v. State of Biharand another, and the second is Union of India v. Surjit Singh Atwal, . In both the cases there wasdenial of the contract in question. However, there was no specific denial about the legality orsufficiency in law of such contract. It was held that a bare denial of the contract cannot be construedas a denial of the legality or sufficiency in law of such contract. It was held that the defendant oughtto have specifically made a denial about the legality of the contract. Both these authorities will be ofno use to Shri Talaulikar to support his submission for the simple reason that in the instant case it isnot the legality of the marriage between plaintiff No. 1 Sumati and deceased defendant No. 1 Sagunwhich is in question but the very factum of their marriage which is disputed. In view of the abovediscussion, it will have to be held that there is a specific denial by the defendants about the factum ofmarriage between plaintiff No. 1 Sumati and deceased defendant No. 1 Sagun.

8. This takes me to the important question raised by Shri Kenkre about the admissibility of evidenceon which both the courts below have held the marriage in question as proved. Chapter I of theFamily Laws as applicable to the State of Goa deals with Civil Marriage and its Solemnization.Article 1 states that the marriage is a contract solemnized between two persons of different sex withthe purpose of legitimately constituting a family. Article 2 states that such a contract is purely civiland is presumed to be perpetual. Article 3 is important and it states:-

"All Portuguese shall solemnize the marriage before the respective officer of Civil Registration,under the conditions and in the manner established in Civil law, and only such marriage is valid."

Chapter VI deals with the proof of marriage. Article 45 upon which Shri Kenkre relied heavily readsas under:-

"The solemnization of the marriage contracted in the Republic, after the making of civil registrationcompulsory, shall be proved by way of certified copy of the certificate except upon proof of the lossof the same, because, in such a case, any other kind of proof is admissible."

It is the plaintiffs' case that there was marriage between plaintiff No. 1 Sumati and deceaseddefendant No. 1 Sagun. It is, however, not their case that the said marriage was registered asrequired by the provisions of the Family Laws or other laws. In fact plaintiff No. 1 Sumati hasadmitted this fact in her evidence. Article 45 quoted above in substance states that solemnization ofmarriage shall be proved only by production of certified copy of the registration of the marriage. Inthe instant case, since the marriage was not admittedly registered, there is no question of producingany certificate of marriage. Article 45 further provides that other kind of proof in respect of themarriage will be admissible upon the proof of loss of such certificate. However, as the marriage inquestion was not registered, there could not be any certificate regarding the registration of marriageand consequently no question of proving the loss of it arises. The question is whether in such a caseit could be said that Article 45 does not permit leading of any other evidence to prove the factum ofmarriage. In my considered opinion, it is not so. Where no certificate of marriage is obtained, no



question of producing it or proving its loss arises. That does not, however, mean that the concernedparty desirous of proving the factum of marriage is rendered helpless. A careful perusal of Article 45itself shows that other kind of proof is admissible, though upon proof of loss of the marriageregistration certificate. It cannot be said that the object of Article 45 is to prevent the parties fromleading evidence in respect of the factum of marriage. Its object is to give conclusiveness to themarriage registration certificate for the purpose of proving the solemnization of marriage. Thisbeing the position, it is absolutely necessary to interpret the said provision in a more liberal andfavourable manner. It is true that under Family Laws, marriage is a civil contract. But, it cannot beignored that it has a social background and it confers a social status of husband and wife upon theparties and has also the effect of legitimizing their children. Having regard to this position, it wouldbe unjust and improper to interpret Article 45 in a restricted manner to the detriment of any partymaking it impossible to prove the facturn of the marriage when the same is disputed or denied. I,therefore, hold that Article 45 does not preclude production of other kind of evidence to prove thefactum of marriage.

8A. In this connection reference may be made to an unreported decision of our High CourtKamalakant Panduranga Chibde and others v. Sushila Panduranga Chibde and others, in FirstAppeal No. 107/1988 decided by a Division Bench comprising of Pendse and Couto, JJ., on 20thDecember 1988. In that case the facts were that one Pandurang had married to plaintiff No. 1Sushila in 1950 and the said marriage was solemnized according to Hindu religious rites in thevillage Sakirval in Sawantwadi Taluka which formed part of the then Bombay State. The saidmarriage was not registered with the Registrar of Marriage as at that time registration of marriagewas not compulsory and Hindu Marriage Act had not come into existence. However, the partiesbeing residents of Goa, the marriage was required to be registered within 3 months as per thePortuguese law which was applicable. In the suit filed by the said Sushila and others, a question asto the validity of her marriage with Pandurang was raised and it was contended that since themarriage was not registered with Registrar of Marriages, the same was not legally valid. The trialJudge held that mere nonregistration of marriage would not invalidate the same. Before the DivisionBench the same question was agitated by referring to a decision of the Supreme Court of Portugalwherein it was held that the marriage solemnized in a foreign country before the foreign authoritywill have effect when it is transcribed in the civil register maintained by the Portuguese authorities.The Division Bench disapproved such a view as it was found to be opposed to public policy. It washeld that failure to register the marriage within the stipulated period cannot lead to the conclusionthat the marriage itself is null and void. It was held that such an interpretation would lead toatrocious result. It was observed:-

"We are bound by the Constitution to determine the rights of the parties in accordance with justiceand fair play and in accordance with the law prevalent in this country. It revolts our conscience tohold that the marriage of plaintiff No. 1 with Pandurang performed in the year 1950 should betreated as void and non-existent only because it is not registered. In case the contention is acceptedit would lead to mockery of justice and therefore we refuse to do so."

It may be pointed out that in the said decision the Division Bench referred to a decision in LettersPatent Appeal No. 30/1985 decided on 26th March 1987 wherein also the contention that unless the



marriage was registered, it was not open for the Court to consider it as a valid marriage, wasrejected. It was held that registration is not a sine qua non of a valid marriage. I think that the ratioof the above referred decisions will have to be followed by me and consequently the interpretationwhich I have put on Article 45 is found to be consistent with the view taken by both the DivisionBenches of this Court. The result is that, in the peculiar circumstances of the case, it was permissiblefor the plaintiffs to lead/evidence other than the one contemplated by Article 45 to prove the factumof marriage between plaintiff. No. 1 Sumati and deceased defendant No. 1 Sagun.

9. The learned Additional District Judge has pointed out that besides the evidence of plaintiff No. 1Sumati about her marriage with deceased defendant No. 1 Sagun, there is other evidence also. Theevidence on record shows that both of them lived together for quite some time and that they wereregarded as husband and wife. Thus, the long co-habitation between the two raises a presumption ofmarriage between them. It is well settled that when the parties live together as husband and wife fora long time and when they are treated by the society as such, there is a presumption of marriage intheir favour, Badri Prasad v. Deputy Director of Consolidation and others, . Not only that but thereis evidence on record to show that deceased Sagun himself admitted and treated plaintiff No. 1Sumati as his wife. The learned Additional District Judge has referred to the Sale Deed dated 19thMarch 1953 under which Sagun and Sumati sold one of their properties. In the said Sale DeedSumati is described as the wife of Sagun. In view of this evidence, it will have to be held that theconclusion of the learned Additional District Judge about the marriage between plaintiff No. 1Sumati and deceased defendant No. Sagun is absolutely proper and correct and the same cannot beinterfered with in this appeal.

10. This brings me to the last question about the validity of the Gift Deed made by deceaseddefendant No. 1 Sagun in favour of defendant Nos. 2 and 3. The learned Additional District Judgehas rightly negatived the plaintiffs' contention that deceased defendant No. 1 Sagun was only abenamidar of the suit property. He has correctly held that Sagun was a joint owner of the suitproperty alongwith plaintiff No. 1 Sumati. It is not disputed before me that by virtue of her marriage,plaintiff No. 1 Sumati had half share in the suit property while remaining half belonged to herhusband Sagun. It is also not disputed before me that being owner of half share, Sagun was entitledto dispose of half of his half share, that is, 1/4th share in the suit property. However, under the GiftDeed, he transferred the entire suit property to defendants 2 and 3 which was not legal. But, at anyrate, there was no bar preventing him to transfer under a gift his 1/4th share in the suit property tothe defendants 2 and 3, whom he regarded as his son and daughter respectively. The learnedAdditional District Judge has, however, not considered this position and proceeded to declare theentire Gift Deed as null and void. The trial Court was, however, right in declaring the Gift valid tothe extent of 1/4th share of deceased defendant No. 1 Sagun's share. To this extent the decree passedby the learned Additional District Judge will have to be modified.

11. In the result, the appeal is partly allowed. The Judgment and Decree passed by the AdditionalDistrict Judge, Panaji, in Regular Civil Appeal No. 33/1989 is hereby set aside to the extent of therelief of declaration granted by him and it is substituted by a declaration that the Gift Deed dated27th February, 1976 executed by deceased defendant No. 1 Sagun Harmalkar in favour of defendantNos. 2 and 3 is valid only to the extent of his undivided 1/4th share in the suit property and void in



respect of the remaining 3/4th undivided share in the suit property. The rest of the Judgment andDecree passed by the learned Additional District Judge is hereby confirmed. In the circumstances ofthe case, parties are directed to bear their respective costs.

12. Appeal allowed partly.




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Shri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ... on 3 July, 1998