Shri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ...

on 3 July, 1998

Bombay High Court

Shri Chandrakant Harmalkar & ... vs Smt. Sumati Sagun Harmalkar Since ... on 3 July, 1998
Equivalent citations: 1998 (4) BomCR 356
Author: J Patil
Bench: J Patil
ORDER J.A. Patil, J.
1. The appellants herein are the original defendants against whom the respondents-plaintiffs had
filed the suit for declaration and injunction. The declaration sought was that the Gift Deed dated
27th February 1976 executed by defendant No. 1 in favour of defendants 2 and 3 was null and void
and the injunction sought was for restraining the defendants from making any construction upon
the 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 the
plaintiffs, plaintiff No. 1 Sumati was married to deceased defendant No. 1 Sagun and that plaintiff
No. 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 in
the name of his father defendant No. 1 Sagun. According to the plaintiffs, plaintiff No. 1 Sumati
being the wife of Sagun, had her half share in the suit property. It was alleged that despite this
position, defendant No. 1 Sagun made a gift of the entire suit property in favour of defendant No. 2
and 3 by a registered deed dated 27th February, 1976. According to the plaintiffs, defendant No. 1
had no authority to make a gift of the entire suit property. They, therefore, filed a suit for declaration
that the Gift Deed dated 27th February 1976 was null and void. They further prayed for perpetual
injunction 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 out
that they have been living together for the last 40 years and that defendant No. 3 Kamlabai is the
wife of defendant No. 1 Sagun and defendant No.2 Chandrakant is their son. The defendants deny
the averment that the suit property was purchased by plaintiff No. 2 Bhikaji in the name of
defendant No. 1 Sagun. The defendants did not admit the factum of marriage between the plaintiff
No. 1 Sumati and defendant No. 1 Sagun and called upon the plaintiffs to prove the same. The
defendants further denied that defendant No. 1 Sagun had no right or authority to make a gift of the
suit 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 that
both the plaintiff No. 1 Sumati and defendant No. 3 Kamlabai were the wives of defendant No. 1
Sagun. The learned Civil Judge further held that defendant No. 1 Sagun was however, not entitled to
make a gift of the entire property and at the most he could have made a gift of 1/4 of his disposable
share. In this view of the matter, the learned Civil Judge proceeded to declare the Gift Deed in
question as null and void only to the extent of the share of the plaintiff No. 1. In substance, he held
that the Gift Deed was valid to the extent of 1/4th share only. In appeal by the plaintiffs, the learned
Additional District Judge decreed the suit fully and declared that the Gift Deed dated 27th February
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1976 is null and void. He also granted the relief of perpetual injunction as prayed for by the
plaintiffs.
5. Shri A.J. Kenkre, the learned advocate for the appellants-defendants, contended before me that
both the courts below were not right in holding that plaintiff No. 1 Sumati was a legally wedded wife
of deceased defendant No. 1 Sagun. Shri Kenkre pointed out the provisions of Article 45 in the
Family Laws and submitted that it was an error to allow the plaintiffs to lead other evidence to prove
the 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 of
registration of marriage. Shri Talaulikar, the learned advocate for the respondents, on the other
hand, contended that there is no specific denial by the defendants in their written statement about
the factum of marriage and , as such, the same must be treated as admitted. Shri Talaulikar further
submitted that the question about the admissibility of evidence cannot be raised for the first time in
a second appeal.
6. For the purpose of convenience I shall first deal with the contention of Shri Talaulikar that there
is no specific denial by the defendants about the factum of marriage. It may be noted that in
paragraph 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 daughter
respectively. This averment in the plaint is controverted by the defendants in paragraph 4 of their
written 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 to
the strict proof thereof."
The contention of Shri Talaulikar is to the effect that the factum of marriage between plaintiff No. 1
Sumati and defendant No. 1 Sagun has not been specifically denied as required by the provisions of
Order VIII, Rules 3 and 5 of the Civil Procedure Code. Rule 3 in substance lays down that it is not
sufficient to deny generally the grounds alleged by the plaintiff and the defendant must deal
specifically with each allegation of fact which he does not admit. Rule 4 deals with evasive denial
and states that where a defendant denies an allegation of fact in the plaint, he must not do so
evasively, but answer the point of substance. Rule 5(1) deals with specific denial and it reads as
follows:"5. Specific denial---(1) Every allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken
to 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 otherwise
than by such admission."
(emphasis provided) If we read the denial made by the defendants in
paragraph 4 of their written statement, it will be seen that it complies with the condition laid down
by Rule 5(1). It is true that they have not specifically denied the factum of marriage but it must be
noted that they have specifically stated that they are not admitting the said fact. This amounts to
sufficient compliance of the requirement contemplated by Rule 5(1). Consequently the submission
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of Shri Talaulikar that there is no specific denial of the factum of marriage by the defendants will
have to be rejected.
7. Shri Talaulikar relied upon two decisions. The first is Kalyanpur Lime Works Ltd. v. State of Bihar
and another, and the second is Union of India v. Surjit Singh Atwal, . In both the cases there was
denial of the contract in question. However, there was no specific denial about the legality or
sufficiency in law of such contract. It was held that a bare denial of the contract cannot be construed
as a denial of the legality or sufficiency in law of such contract. It was held that the defendant ought
to have specifically made a denial about the legality of the contract. Both these authorities will be of
no use to Shri Talaulikar to support his submission for the simple reason that in the instant case it is
not the legality of the marriage between plaintiff No. 1 Sumati and deceased defendant No. 1 Sagun
which is in question but the very factum of their marriage which is disputed. In view of the above
discussion, it will have to be held that there is a specific denial by the defendants about the factum of
marriage 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 evidence
on which both the courts below have held the marriage in question as proved. Chapter I of the
Family 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 with
the purpose of legitimately constituting a family. Article 2 states that such a contract is purely civil
and 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 reads
as under:"The solemnization of the marriage contracted in the Republic, after the making of civil registration
compulsory, shall be proved by way of certified copy of the certificate except upon proof of the loss
of 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 deceased
defendant No. 1 Sagun. It is, however, not their case that the said marriage was registered as
required by the provisions of the Family Laws or other laws. In fact plaintiff No. 1 Sumati has
admitted this fact in her evidence. Article 45 quoted above in substance states that solemnization of
marriage shall be proved only by production of certified copy of the registration of the marriage. In
the instant case, since the marriage was not admittedly registered, there is no question of producing
any certificate of marriage. Article 45 further provides that other kind of proof in respect of the
marriage will be admissible upon the proof of loss of such certificate. However, as the marriage in
question was not registered, there could not be any certificate regarding the registration of marriage
and consequently no question of proving the loss of it arises. The question is whether in such a case
it could be said that Article 45 does not permit leading of any other evidence to prove the factum of
marriage. In my considered opinion, it is not so. Where no certificate of marriage is obtained, no
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question of producing it or proving its loss arises. That does not, however, mean that the concerned
party desirous of proving the factum of marriage is rendered helpless. A careful perusal of Article 45
itself shows that other kind of proof is admissible, though upon proof of loss of the marriage
registration certificate. It cannot be said that the object of Article 45 is to prevent the parties from
leading evidence in respect of the factum of marriage. Its object is to give conclusiveness to the
marriage registration certificate for the purpose of proving the solemnization of marriage. This
being the position, it is absolutely necessary to interpret the said provision in a more liberal and
favourable manner. It is true that under Family Laws, marriage is a civil contract. But, it cannot be
ignored that it has a social background and it confers a social status of husband and wife upon the
parties and has also the effect of legitimizing their children. Having regard to this position, it would
be unjust and improper to interpret Article 45 in a restricted manner to the detriment of any party
making 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 the
factum of marriage.
8A. In this connection reference may be made to an unreported decision of our High Court
Kamalakant Panduranga Chibde and others v. Sushila Panduranga Chibde and others, in First
Appeal No. 107/1988 decided by a Division Bench comprising of Pendse and Couto, JJ., on 20th
December 1988. In that case the facts were that one Pandurang had married to plaintiff No. 1
Sushila in 1950 and the said marriage was solemnized according to Hindu religious rites in the
village Sakirval in Sawantwadi Taluka which formed part of the then Bombay State. The said
marriage was not registered with the Registrar of Marriage as at that time registration of marriage
was not compulsory and Hindu Marriage Act had not come into existence. However, the parties
being residents of Goa, the marriage was required to be registered within 3 months as per the
Portuguese law which was applicable. In the suit filed by the said Sushila and others, a question as
to the validity of her marriage with Pandurang was raised and it was contended that since the
marriage was not registered with Registrar of Marriages, the same was not legally valid. The trial
Judge held that mere nonregistration of marriage would not invalidate the same. Before the Division
Bench the same question was agitated by referring to a decision of the Supreme Court of Portugal
wherein it was held that the marriage solemnized in a foreign country before the foreign authority
will 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 was
held that failure to register the marriage within the stipulated period cannot lead to the conclusion
that the marriage itself is null and void. It was held that such an interpretation would lead to
atrocious result. It was observed:"We are bound by the Constitution to determine the rights of the parties in accordance with justice
and fair play and in accordance with the law prevalent in this country. It revolts our conscience to
hold that the marriage of plaintiff No. 1 with Pandurang performed in the year 1950 should be
treated as void and non-existent only because it is not registered. In case the contention is accepted
it 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 Letters
Patent Appeal No. 30/1985 decided on 26th March 1987 wherein also the contention that unless the
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marriage was registered, it was not open for the Court to consider it as a valid marriage, was
rejected. It was held that registration is not a sine qua non of a valid marriage. I think that the ratio
of the above referred decisions will have to be followed by me and consequently the interpretation
which I have put on Article 45 is found to be consistent with the view taken by both the Division
Benches of this Court. The result is that, in the peculiar circumstances of the case, it was permissible
for the plaintiffs to lead/evidence other than the one contemplated by Article 45 to prove the factum
of 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. 1
Sumati about her marriage with deceased defendant No. 1 Sagun, there is other evidence also. The
evidence on record shows that both of them lived together for quite some time and that they were
regarded as husband and wife. Thus, the long co-habitation between the two raises a presumption of
marriage between them. It is well settled that when the parties live together as husband and wife for
a long time and when they are treated by the society as such, there is a presumption of marriage in
their favour, Badri Prasad v. Deputy Director of Consolidation and others, . Not only that but there
is evidence on record to show that deceased Sagun himself admitted and treated plaintiff No. 1
Sumati as his wife. The learned Additional District Judge has referred to the Sale Deed dated 19th
March 1953 under which Sagun and Sumati sold one of their properties. In the said Sale Deed
Sumati is described as the wife of Sagun. In view of this evidence, it will have to be held that the
conclusion of the learned Additional District Judge about the marriage between plaintiff No. 1
Sumati and deceased defendant No. Sagun is absolutely proper and correct and the same cannot be
interfered with in this appeal.
10. This brings me to the last question about the validity of the Gift Deed made by deceased
defendant No. 1 Sagun in favour of defendant Nos. 2 and 3. The learned Additional District Judge
has rightly negatived the plaintiffs' contention that deceased defendant No. 1 Sagun was only a
benamidar of the suit property. He has correctly held that Sagun was a joint owner of the suit
property 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 her
husband Sagun. It is also not disputed before me that being owner of half share, Sagun was entitled
to dispose of half of his half share, that is, 1/4th share in the suit property. However, under the Gift
Deed, he transferred the entire suit property to defendants 2 and 3 which was not legal. But, at any
rate, there was no bar preventing him to transfer under a gift his 1/4th share in the suit property to
the defendants 2 and 3, whom he regarded as his son and daughter respectively. The learned
Additional District Judge has, however, not considered this position and proceeded to declare the
entire Gift Deed as null and void. The trial Court was, however, right in declaring the Gift valid to
the extent of 1/4th share of deceased defendant No. 1 Sagun's share. To this extent the decree passed
by 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 Additional
District Judge, Panaji, in Regular Civil Appeal No. 33/1989 is hereby set aside to the extent of the
relief of declaration granted by him and it is substituted by a declaration that the Gift Deed dated
27th February, 1976 executed by deceased defendant No. 1 Sagun Harmalkar in favour of defendant
Nos. 2 and 3 is valid only to the extent of his undivided 1/4th share in the suit property and void in
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respect of the remaining 3/4th undivided share in the suit property. The rest of the Judgment and
Decree passed by the learned Additional District Judge is hereby confirmed. In the circumstances of
the case, parties are directed to bear their respective costs.
12. Appeal allowed partly.

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