1. There was a certain Basegowda, who lived in the District of Chikmagalur until his death which took place in the year 1962. He had two wives, the first of them being Bhadramma, who isplaintiff 1, through whom he had a daughter Eramma, who is plaintiff 2. The second is Saraswathamma, who is defendant 1, through whom he got a son Nagesha, who is defendant 2. This second appeal arises out of a suit brought by Bhadramma and her daughter Eramma for a declaration that they were exclusively entitled to all the properties of Basegowda and for an injunction restraining the defendants from disturbing their enjoyment and possession thereof. They also sought a decree for certain other reliefs to which it is not necessary to advert.
2. This suit was resisted by defendants 1 and 2 on the plea that each of them was entitled to a 4th share in the properties of Basegowda as his second Wife and son respectively. It was asserted by defendants that the marriage of Basegowda with defendant 1 was solemnised in March 1955 before the Hindu Marriage Act which prohibited bigamy commenced to operate on May 18, 1955. The principal ground on which the plaintiffs repudiated the right asserted by defendants was that the marriage between Basegowda and defendant 1 took place in January 1956 after the Hindu Marriage Act came into force and that it was therefore a void marriage since it was solemnised during the subsistence of the first marriage and during the life-time of plaintiff 1 who was the first wife.The Munsiff reached the conclusion that the marriage between the Basegowda and defendant 1 took place in March 1955 and was therefore a good marriage. So, he negatived the exclusive claim asserted on behalf of the plaintiffs to the properties of Basegowda and made a decree for partition. He made a declaration that the two plaintiffs were each entitled to a 4th share and that each of the two defendants were similarly entitled to a 4th share in the properties of Basegowda. He directed a partition accordingly.
3. From this decree, the plaintiffs appealed and the Civil Judge allowed it. He was of the opinion that the marriage of Basegowda with defendant 1 was an invalid and void marriage since, it, according to his finding was solemnised in January 1956. So, in modification of the decree made by the Munsiff, he made a decree in favour of the plaintiffs as prayed for by them.
4. The defendants appeal.
5. Mr. Puttaswami contended that the decree made by the Civil Judge is unsupportable for the reason that he depended in support of his decree entirely upon a document Exh. P-6 which was produced by the plaintiffs on December 20, 1963. after the recording of the evidence had been completed on December 17, 1963 and the case had been posted forarguments to December 20, 1963. He also maintained that the Civil Judge overlooked the omission on the part of the plaintiffs to produce any proof in support of their contention that Ex. P-6 was a genuine document and he also made a severe criticism that the Civil Judge entirely missed the importance of the admission made by the plaintiffs' witness P.W. 2 who gave evidence that the second marriage of Basegowda was celebrated in March 1955,
6. Although there was a plea by the defendants that Bhadramma was not the legally wedded wife of Basegowda, Mr. Puttaswami appearing for the defendants made no attempts to sustain any such plea which was rightly negatived by the Courts below. So the important question which has to be decided is whether the finding of the Civil Judge that the second marriage of Basegowda was in January 1956, is open to any acceptable criticism, and in my opinion, it is,
7. The Civil Judge's judgment is remarkable for the contradictions in which it abounds. Exh. P-6 purports to be a marriage invitation issued in the context of Basegowda's second marriage and it states that the marriage would be celebrated on January 23, 1956. It is a printed invitation and the first plaintiff, who examined herself as P.W. 1 gave no evidence as to the date of the marriage when she was examined on December 17, 1963. She did not even state that the second marriage was celebrated after the Hindu Marriage Act came into force. She said nothing about the date of the marriage, After completion of the recording of the evidence on December 17, 1963, the case was posted for arguments to December 20, 1903. and it was on that date that the plaintiffs made an application for permission to produce further evidence which was granted by the Munsiff. It was at that stage that the 1st plaintiff examined herself further to produce Exh. P-6.
8. Not unnaturally the Munsiff attached no importance to Exh. P-6 which was produced at that very late stage, and he rightly pointed out that although the first plaintiff stated that at least three persons who were present at the wedding were still alive, none of them was called to Rive evidence. The Printer of Exh. P-6 was not called and the first plaintiff gave no explanation for the omission on her part to produce Exh. P-6 at the earliest stage.
9. So, the Munsiff rightly discarded Exh. P-6 and in the earlier part of his judgment the Civil Judge also felt inclined to say that not much reliance could be placed on it. But, in another part of his judgment, he reversed his own reasoning and arrived at a contrary conclusion that Exh. P-6 had been sufficiently proved. It is difficult to understand how hafound it possible to say so. The finding which he reached in the earlier part of the judgment was in my opinion a correct conclusion and it is astonishing to find that he departed from that conclusion when he arrived in another part of his judgment where he adverted to the criticisms levelled against Exhibit P-6 in another context.
10. So, the finding of the Civil Judge that Exh. P-6 was proved is clearly contrary to law.
11. P.W. 2 who was examined by the plaintiffs gave evidence that the second marriage of Basegowda was in March 1955 and although more than one attempt was made to treat this witness as a hostile witness, that endeavour did not succeed since the Munsiff was very clear in his mind that there were no grounds for thinking that the witness has turned hostile. As I can see from the deposition of P.W. 2, no attempt at all was made for laying the foundation for the theory that P.W. 2 had become hostile to the case. A witness cannot be treated as hostile merely because his evidence is favourable to the other side, and the fact that the witness has become hostile has to be established by eliciting information such as could give an indication of hostility. But, no such attempt was made by the plaintiffs when P.W. 2 was in the box.
12. It appears from the discussion in the judgment of the Civil Judge that he did not correctly comprehend the evidence given by P.W. 2. He thought that P.W.2's evidence was that the second marriage of Basegowda 'could' have taken place in March 1955, while on the contrary the clear evidence given by P.W. 2 was that that marriage did take place in March 1955. The Civil Judge stated that he would not believe P.W. 2, but gave no reason for reaching that conclusion. It was not possible for him to say so after permission for treating the witness as hostile had been refused by the Munsiff unless the Civil Judge himself came to the conclusion that he had turned hostile.
13. The Civil Judge next placed dependence upon the evidence given by P.Ws. 3 and 4, but their evidence could not assist the conclusion reached by him. All that they stated was that they saw defendant 1 in their own villages in the year 1956. Both these witnesses belong to places other than those to which Basegowda belonged and the marriage according to the defence case was in the District of South Kanara and the fact that these two witnesses saw defendant 1 in their own villages in January 1956 does not necessarily mean that the marriage was also in the year 1956.
14. The next infirmity in the ratiocination adopted by the Civil Judge was that he made entirely wrong arithmetic. Inher evidence defendant 1 stated when she was examined on December 17, 1963, that her marriage took place nine years before she was examined and that the second defendant had completed seven years of age when she was examined. She added that the second defendant was born a year after the marriage. On the basis of this chronology of events, the Civil Judge stated that the second marriage of Basegowda must have been celebrated in the year 1956.
15. It is clear that the Civil Judge got mixed up when he made this arithmetic. If the marriage was celebrated nine years before 1963 it means the marriage was in the year 1954 and if defendant 2 was born seven years before she gave evidence, it should follow that he was born in 19136 and if he was born a year after the marriage, it means that the marriage was in the year 1955. It was, therefore, impossible for the Civil Judge on the basis of these dates to reach a conclusion that the marriage was in the year 1956 and it is astonishing that he found it possible to say so.
16. There is also something in Exh. P-4 an application presented by the plaintiff in the maintenance suit which she brought against her husband Basegowda, which supports the defendants' allegation that the first defendant's marriage was a good marriage. In Exh. P-4 she referred to defendant 1 as the second wife of Basegowda, and there was no impeachment of that marriage on the ground that it was solemnised after the Hindu Marriage Act came into force. What is of further importance is that plaintiff 1 stated in that application that the right to claim separate maintenance from her husband accrued to her by reason of the second marriage between Basegowda and defendant 1. That right would not have accrued to her if the marriage was a void marriage since under the provisions of Hindu Adoptions and Maintenance Act that right to separate maintenance would accrue only if the second marriage was a good marriage, and there was a clear recognition of the validity of that marriage from the pleading which the plaintiff incorporates in Exh. P-4.
17. So, it is clear that the decree of the Civil Judge which is clearly contrary to law, cannot be sustained, and I allow this appeal, set aside that decree and restore that of the Munsiff.
18. In the circumstances each parry will bear his or her own costs on all the three Courts.
19. Appeal allowed.