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Bimla Bai Vs. Shankerlal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 76 of 1957
Judge
Reported inAIR1959MP8
ActsHindu Law; Contract Act, 1872 - Sections 17, 18 and 19
AppellantBimla Bai
RespondentShankerlal and ors.
Appellant AdvocateR.S. Dabir and ;A.D. Deoras, Advs.
Respondent AdvocateG.M. Kekre, Adv.
DispositionAppeal allowed
Cases ReferredRedgrays v. Hurd
Excerpt:
- - 3. he further held that the plaintiff's father had failed to make the necessary enquiries regarding the status of shankarlal. 6. in my opinion the findings of the learned additional district judge are unwarranted and are based on a misapprehension both of law as well as of facts. the learned additional district judge failed to see that her evidence on the point stood unrebutted and there was no adequate reason for disbelieving it. at any rate, the statement of kundanlal that shankarlal was his son, would only be a half-truth and it is well established that a partial statement verbally accurate may be as false a statement in effect as if the fact had been misstated altogether......hkwyksad hkkjro'ksza hkjr[k.ms vk;kprsadns'ks veqd{ka=s hkkxhjf;k veqd hkkxs veqd lacrljs jkslw;sz veqdk;us veqd _rksveqd ekls veqd i{ks veqd cklj veqd u{k=s veqd jkf'kflrs lw;sz veqd jkf'kfl/krspunzs veqd jkf'kflfkrs nsoxqjks 'ks'ks'kq ;fkklfkkuaflfkrs'kqlrlq&izgs'kq ,oa xzgxq.kfo'ks'k.kfof'k'ka ;ka 'kqhkiq.;frfkks] veqd xks=% lriuhd% 'krxq.khrt;ksfr'vksekfr jktleqy& izkfir dkeksge veqd xk=l;keqd izojl;keqd 'kk[kuksdqdosnk/;kf;ukseqd ukez% izik=k;] veqdxks=l;keqd 'kkf[kukseqd onk/;kf;ukseqdukeu% iks=k;] veqd xks=l;keqd izojl;keqd 'kkf[kukeqd ukeu% iks=k;] veqd xks=l;keqdizojl;keqd 'kkf[kukeqd osnk/;kf;ukseqd 'kez.k% iq=k;] veqd xks=e;keqdizkjl;keqd 'kkf[kukeqd izojl;keqd 'kkf[kuksuqd osnf/;kf;ukseqd ukez% iq=he~aabfr f=% ifbr;k vk;q'er fo'.kqlo:fi.k du;kf;zus veqd xks=k;keqdizojk;veqd.....
Judgment:

T.P. Naik, J.

1. This is a second appeal by the plaintiff whose suit for a declaration that her marriage with defendant-respondent Shankarlal was null and void has been dismissed by the lower appellate Court. The marriage is being sought to be set aside on the ground of fraud. The trial Court found the allegations proved and decreed her suit. The lower appellate Court however found that there was no misrepresentation amounting to fraud as alleged which could warrant the setting aside of the marriage in question.

2. The facts which are not in dispute may shortly be stated as follows : The plaintiff Bimla Devi and the defendant Shankarlal went through a ceremony of marriage according to Hindu rites at Jabalpur on 28-2-1952. The plaintiff is the legitimate daughter of one Munnalal Dube, a Kanvakubja Brahmin, while the defendant Shankarlal is the illegitimate son of the defendant-respondent Kundanlal, also a Kanyakubja Brahmin, but born of an adulterous intercourse with a Kurmi woman defendant-respondent Godawaribai. The said Godawaribai had left her husband and came in the exclusive keeping of Kundanlal whose mistress she has been ever since. The defendant-respondent Shankarlal is thus an illegitimate son of the defendant-respondent Kundanlal.

3. The plaintiff's case as disclosed in paragraph 5 of the plaint inter alia was :

'That before and at the time of celebration of your petitioner's said pretended marriage, the respondent Nos. 1, 2 and 3 defrauded your petitioner by declaring that the respondent No. 1 is Brahmin by caste and son born out of wedded Brahmin wife of respondent No. 3 and that respondent No. 2 is Brahmin by caste and wedded wife of respondent No. 3, but in fact respondent No. 1 is Shudra (Kurmi) by caste. He is born of respondent No. 2 who is Kurmi by caste from a person other than respondent No. 3 and an illegitimate to (sic) by birth and that respondent No. 2 is a keep of respondent No. 3.'

The defendants in their written statement generally denied the said allegations. They averred :

^^---------------- ;g ekU; ugha gS fd izfrokhla[;k 1 'kwnz gSA og czk.k dk ;kus izfroknh la[;k 3 dk iq= gS ijarq izfroknhla[;k 1 dk tUe izfroknh la[;k 2 tks tkfr dk dqehZ gS& gqvk gS tks izfroknhla[;k 3 dh vkSjr gS] dqehZ dh x.kuk {kf=;ksa esa dh tkrh gS 'kwnzks esa ugha dhtkrhA**

^^okn ifjPNn la[;k 5 ekU; ugha gS vkSj ml ij ;gdguk gS fd nksuksa i{k ds izk.kh x lksp ysus ij 'kknh djuk fuf'p; fd;k FkkA**

4. The trial Court believed the evidence of the plaintiff's witnesses and came to the conclusion that it was satisfactorily established that the defendant-respondent Kundanlal and his brother Imratlal had falsely represented to Munnalal that they were pure Brahmins and that Shankarlal was the son of Kundanlal, that he (Shankarlal) was also a Brahmin and that he had no mistress in his keeping. The defendant's evidence to the contrary that he had informed them the true position was not believed.

It also found that at the time of the marriage, the defendant-respondent Shankarlal falsely represented that he was a pure Brahmin. It further found that the mariage had never been consummated.

5. On appeal, the learned Additional District Judge reversed these findings. He held that the plaintiffs evidence was to be eleminated completely as no misrepresentation could have been made to her as the marriage negotiations were carried on between her father and brother on the one hand and Kundanlal and his brother on the other hand at the shop of Kasturchand, where admittedly she was not present. As for the evidence of P.W. 2 Munnalal, P.W. 3 Ganeshprasad and P. W. 4 Poonamchand, he held that there was no misrepresentation in Kundanlal's admission that he was a pure Brahmin, and that Shankarlal was his son as no specific question as to the status of Shankarlal were put to him and the statements were true as far as they went.

He disbelieved the evidence of Ganeshprasad (P.W. 3) in so far as he stated that Kundanlal had denied that he had kept a mistress on the ground that there could be no occasion for this enquiry and no reason had been advanced by Ganeshprasad (P.W. 3) for putting such a question to defendant No. 3. He further held that the plaintiff's father had failed to make the necessary enquiries regarding the status of Shankarlal.

It was not very difficult for him to make the necessary enquiries on this point and this showed that either he knew everything or that he was too eager to get the plaintiff married to the defendant-respondent Shankarlal without caring to know the true facts.

6. In my opinion the findings of the learned Additional District Judge are unwarranted and are based on a misapprehension both of law as well as of facts.

7. It is not disputed that a Hindu marriage brought about by force or fraud is altogether invalid. (See Mulla's Hindu Law, llth edition, page 536). The marriage in the instant case can therefore be set aside if it is established that it was brought about by fraud. The fraud alleged in this case consists of a false representation of fact made knowingly, that the defendant-respondent Shankarlal was a Brahmin boy and was the son of Kundanlal, born of a wedded Brahmin wife.

8. The allegation in the plaint was that the said misrepresentation was made both before and at the marriage. So far as the misrepresentation at the marriage ceremony is concerned, the plaintiff was quite a competent witness. The learned Additional District Judge failed to see that her evidence on the point stood unrebutted and there was no adequate reason for disbelieving it. At a Hindu marriage one of the most essential ceremonies is called 'Kanyyadan' when the father of the bride makes the gift of his daughter to the bridegroom.

The prescribed form of declaration which has to be read or repeated by the father of the bride at the said ceremony provides that in describing the donee, the bridegroom to whom the gift of the bride is being made, he specifically describes him with reference to his three ancestors. This will be apparent from the following text taken from the Paraskar Grihya Sutra. Kanda 1. Kandika 8. as incorporated in Vivaha Purvanga Vidhi by Kashinnth Pandaya, pages 25-26 :

^^----------fo'.kqfo'.kqfo'.kq% Jhe}~xcrrks egkiq:'kL; vkK;k izorZekuL;v| czEg.kksfU f}rh; izgjk/ksZ Jh osr/kkjkgdYis oSoLreUoUrjs v'Vfo'kree;qx dfy;qx pfyizFkepj.kks tEcq}his Hkwyksad Hkkjro'ksZa Hkjr[k.Ms vk;kprSadns'ks veqd{ka=s HkkxhjF;k veqd Hkkxs veqd lacRljs Jkslw;sZ veqdk;us veqd _rkSveqd ekls veqd i{ks veqd cklj veqd u{k=s veqd jkf'kfLrs lw;sZ veqd jkf'kfL/krspUnzs veqd jkf'kfLFkrs nsoxqjkS 'ks'ks'kq ;FkkLFkkuafLFkrs'kqlRlq&

izgs'kq ,oa xzgxq.kfo'ks'k.kfof'k'kA ;ka 'kqHkiq.;frFkkS] veqd xks=% lRiuhd% 'krxq.khrT;ksfr'Vksekfr jktleQy& izkfIr dkeksge veqd xk=L;keqd izojL;keqd 'kk[kuksdqdosnk/;kf;ukseqd ukez% izik=k;] veqdxks=L;keqd 'kkf[kukseqd onk/;kf;ukseqdukEu% ikS=k;] veqd xks=L;keqd izojL;keqd 'kkf[kukeqd ukEu% ikS=k;] veqd xks=L;keqdizojL;keqd 'kkf[kukeqd osnk/;kf;ukseqd 'keZ.k% iq=k;] veqd xks=E;keqdizkjL;keqd 'kkf[kukeqd izojL;keqd 'kkf[kuksuqd osnf/;kf;ukseqd ukez% iq=he~AAbfr f=% ifBR;k vk;q'er fo'.kqLo:fi.k dU;kf;Zus veqd xks=k;keqdizojk;veqd ukezsojk; vk;q'erk Jh :i.kh ojkfFkZuhe~ veqd ukEuhfeeka dU;ka ;qLukrka;Fkk'kDR;ya rka iwftrka olz;qx;qrke~ iztkifrnSoR;ka nsokfXuxq:&czk.klf;?kkSlg/kekZpj.kk; irzkRosu rqH;a lEiznnsA---**

It is further significant that before this is done, the parties to the marriage have to make a public declaration as to who their ancestors were and what their xks=] izoj etc. are by themselves reciting or asking the officiating priest to recite these facts in the ceremony Known as --xk=ksPpkj** or ^^'kk[kksPpkj-** The text of this is :

^^------ 'kqDy;tqosZnkUrxZrek/;fUnuh; 'kk[kk/;kf;u%dkR;k;rlw=L; veqd xs=L;keqd izojL;keqd uez% iziks=%AA 'kqDy ;tqosZnk 'kj.kaizi|s LofLr lEikns'kw Hk;kso`Zf)% oj dU;;keZ>yekLrka oj psTthoh Hkorkr~dU;k p lkfo=h HkorqA bfroji{ks izFke% 'kk[kksPpkj----A**

This recital is for the purpose of making known to everybody by a solemn ritualistic declaration the truthfulness and authenticity of the matters so declared regarding the genealogy of the parties concerned. It is true that usually the officiating priest recites this on instructions from his client, but in my opinion the parties concerned cannot absolve themselves of any responsibility for any false recitals therein. This solemn declaration is a general notice to the other side of the origin of his descent up to three generations so that if the facts are not what the parties considered were the facts, they may back out of it while there was yet time. It is further significant that lest there be a mistake, the Shastras enjoin that this recital shall be repeated three times each, first on behalf of the bridegroom and then on behalf of the bride. See also uojRu fookg i)fr izDj.k ' -- Published by Laxmin Venkateshwar Press, 5th edition; and 'kksM'k laLdkj fof/k Ch. 14 fookg laLdkj PP. 259 260.

9. It cannot be disputed that Shankarlal was only a 'Dasiputra' viz., the illegitimate son of a Hindu Brahmin by a 'Dasi' who was only entitled to maintenance and not to any share of inheritance as the son. (Mitakshara, Ch, 1, Section 12. V-3. See also Mulla's Hindu Law, llth edition, para 551) It is also clear from the evidence of the plaintiff Bimla (P.W. 1) that Shankarlal and his mother were not admitted in the worship of the family deity nor were they permitted to interdine with the other members of the family. Caste being a matter of caste consciousness, I am of opinion that Shankarlal was not treated as a member of the caste of his father.

It cannot therefore be denied that if the defendant-respondent Shankarlal claimed to be the son of Kundanlal and a Brahmin of the same caste as his father, he was making a claim which was false to his knowledge. Further, the expressions son, grandson, great-grandson used herein have been used in the sense of legitimate sons, whether natural or adopted. The Hindu Law-givers no doubt described several kinds of sons, regarding whose description or order there was no unanimity amongst the ancient sages, but we 'need not concern ourselves with regard to them as the only 'sons' now possessing any legal status are the legitimate natural and adopted sons. (See Gour's Hindu Code, 4th edition, pages 160-61).

In so far as the defendant-respondent Kundanlal held the defendant-respondent Shankarlal out as his 'son', he was in my opinion making a fraudulent misrepresentation. I am therefore of opinion that a fraudulent misrepresentation was made at the time of the marriage in describing the defendant-respondent Shankarlal as a son of Kundanlal.

10. It is not disputed that the declaration that Shankarlal was the son of Kundanlal was made to the father of the bride at the time of the marriage negotiations also. The learned Additional District Judge has held that such a declaration did not amount to a misrepresentation. Here again, I do not agree.

11. When parties were negotiating the marriage, the enquiries were necessarily directed to find out the status of Shankarlal and his family. The questions therefore whether Kundanlal was a pure Brahmin, whether he was received in the caste without objection, were necessary and pertinent and Kundanlal could have cleared the point by disclosing the facts regarding the descent of Shankarlal. Indeed, in the written statement their plea is that the true facts were in fact disclosed to the plaintiff's father and that he accepted to give his daughter in marriage with the full knowledge of all the facts.

Here I am examining the implications of the evidence of Munnalal (P.W. 2) and Ganeshprasad (P.W. 3), when the learned Additional District Judge says that the bald statements attributed to Kundanlal by them to the effect that he was a 'Khandani Brahmin' (vide the evidence of Munnalal P.W. 2) and that they (Kundanlal and his people) are invited in the caste functions, partake in the caste dinners and that Shankarlal is his (Kundanlal's) son', (Vide the evidence of Ganeshprasad P.W. 3) were true as far as they went and could not amount to fraudulent misrepresentation.

When a person speaks of another as his son, in my opinion, he holds him out as his legitimate natural or adopted son. It could not possibly include an illegitimate son. At any rate, the statement of Kundanlal that Shankarlal was his son, would only be a half-truth and it is well established that a partial statement verbally accurate may be as false a statement in effect as if the fact had been misstated altogether. Discussing the law on the subject, Lord Cairns in Peek v. Gurney, 1873-6 HL 377 at p. 403 (A), said :

'There must, in my opinion, be some active misstatement of fact, or, at all events, such a partial and fragmentary statement of fact, as that the withholding of that which is not stated makes that which is stated absolutely false.'

Half truths are often times worse than lies. If Kundanlal so stated the purity of his caste and straightforwardness of his relationship to Shankarlal as to induce the father of the plaintiff not to make any further enquiry as to facts, which, if discovered, might have affected his judgment, his conduct cannot be said to be anything but fraudulent.

12. The consideration that Munnalal had not made adequate enquiries and was thus negligent, would not help the defendants because as held by Jessel M. R. in Redgrays v. Hurd 1881-20 Ch D 1 at p. 14 (B) :

'the effect of false representation is not got rid of and the ground that the person to whom it was made has been guilty of negligence.'

13. Apart from these considerations, there is the further fact as evidenced by the testimony of Ganeshprasad (P.W. 3), which testimony had rightly been accepted by the trial Court, that Kundanlal had categorically denied that he had a mistress when a straight question was put to him on the point. The learned Additional District Judge discarded this evidence on the ground that there was no occasion for such a question, but it is notorious that when marriage negotiations are going on, such enquiries are often made even on suspicion because the prospective union of the two families itself furnishes an occasion for these enquiries.

14. It cannot be disputed that these fraudulent misrepresentations did in fact induce the plaintiff and her father to agree to the solemnisation of the marriage. In the first place, the very fact of the material misrepresentation having been made with a view to induce Munnalal and the plaintiff to agree to the celebration of the marriage between the plaintiff and Shankarlal, raises an inference that they (the plaintiff and her father) were actually induced by it and secondly Munnalal (P.W. 2) specifically says that had the true facts been known to him, he would not have given his daughter in marriage to the defendant-respondent Shankarlal. Similarly, the plaintiff Bimla (P.W. 1) also says that if she had known that Shankarlal was a Shudra born of a Kurmi mother, she would have not married him.

15. Under the circumstances, I hold that there was misrepresentation which amounted to fraud and consequently the marriage in question which was induced by it is liable to be set aside.

16. The appeal is therefore allowed. The decree of the lower appellate Court is hereby setaside and that of the trial Court declaring the marriage in question as null and void is herebyrestored. Costs shall be borne by the defendant-respondents throughout.


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