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Linga Mallik Vs. Ajodhya Mallikani and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 432 of 1969
Judge
Reported inAIR1974Ori107
ActsEvidence Act, 1872 - Sections 35, 101 and 114; Hindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 66(1)
AppellantLinga Mallik
RespondentAjodhya Mallikani and anr.
Appellant AdvocateB.K. Behura, Adv.
Respondent AdvocateB.K. Pal and ;B. Pal, Advs.
DispositionAppeal dismissed
Cases ReferredGirijananandini Devi v. Bijendra Narain Choudhury
Excerpt:
.....favour of the marriage applies to the forms and the ceremonies necessary to constitute it a valid marriaae. which is summarised in placitum (d) where a person alleges that a property purchased at a court auction was purchased on his behalf or on behalf of some one through whom he claims, the suit is clearly barred......that the plaintiff is not the wife of satya; that ganda mallik and his sons had partitioned the joint family properties and were in possession of their respective shares therein; that tilottama the first wife of late satya mallik instituted titlesuit no. 18 of 1954 claiming maintenance against them and obtained a decree in execution of which the entire share of satya in the disputed properties was sold in public auction; that in the said auction one parama barik purchased satya's share and remained in possession thereof till 1960 and that he sold the same in favour of defendant no. 1 for a consideration of rs. 300/- and that after the said purchase defendant no. 1 became the absolute owner of the share which satya had in the disputed properties. in the circumstances, the plaintiff is.....
Judgment:

B.K. Patra, J.

1. This is an appeal by the defendant against a confirming judgment of the Additional Subordinate Judge, Bolangir. One Ganda Mallik since deceased was the admitted owner of the suit land and he died leaving behind him his wife Badani (defendant No. 2) and two sons Satya and Linga. The plaintiff Ajodhya Mallikani claims to be the married second wife of Satya. Her case is that after the death of Ganda, his widow and his two sons continued to remain in joint mess and in such state of jointness Satya died. She. therefore, filed a suit for partition of the disputed lands measuring 7.999 acres into three equal shares and for allotment of one such share to her. The defendants pleaded inter alia that the plaintiff is not the wife of Satya; that Ganda Mallik and his sons had partitioned the joint family properties and were in possession of their respective shares therein; that Tilottama the first wife of late Satya Mallik instituted TitleSuit No. 18 of 1954 claiming maintenance against them and obtained a decree in execution of which the entire share of Satya in the disputed properties was sold in public auction; that in the said auction one Parama Barik purchased Satya's share and remained in possession thereof till 1960 and that he sold the same in favour of defendant No. 1 for a consideration of Rs. 300/- and that after the said purchase defendant No. 1 became the absolute owner of the share which Satya had in the disputed properties. In the circumstances, the plaintiff is not entitled to any relief.

2. The trial Court held that the plaintiff is the legally married second wife of late Satya that there was no previous partition either between Ganda and his sons or between Satya and his brother defendant No. 1, that the purchase by Parama of Satva's share in the disputed property in Court auction, was Benami for the joint family and that consequently Satya's share in the joint familv was intact by the time of his death and the plaintiff would therefore be entitled to a one-third share. On these findings he passed a decree fox partition as prayed for by the plaintiff. All these findings were upheld in appeal by the learned Additional Subordinate Judge. Hence this appeal by defendant No. 1 Linga Malick.

3. The concurrent finding of the Courts below that the plaintiff is the married wife of Satya is assailed on two grounds, namely, that in arriving at the finding that a marriage between the plaintiff and Satya did take place, the Courts below were considerablv influenced by Ext. 1 which is an entrv in the Voter's list describing the plaintiff as Satya's wife and secondly even if a ceremony of marriage had taken place as found by the Courts below, it cannot be valid unless it is proved that the necessary ceremonies to constitute a valid marriage had been gone through and in the absence of any such evidence, the Courts below were not justified in holding that the plaintiff is the married wife of Satya. The electoral roll is a public document and has been prepared by a public servant in discharge of his official duty. The entrv therein showing that the plaintiff is the wife of Satya is a relevant fact in this suit. A Full Bench of this Court in Kirtan Sahu v. Thakur Sahu. (1972) 38 Cut LT 82 = (AIR 1972 Orissa 1581 (FB) has held that an electoral roll being a public document is admissible in evidence and it is not necessary to prove the source of information on the basis whereof the facts stated in the roll were recorded, nor is it necessary that the person who prepared the electoral roll has to be examined inCourt to prove the electoral roll. As a public document it is admissible under the provisions of Section 35 of the Evidence Act. No. exception can, therefore, be taken to the admission of Exhibit 1 in evidence, That apart, there is sufficient evidence on record which had been accepted by the Courts below to arrive at the conclusion that the plaintiff was married to Satva.

4. It is next contended by Mr. Behura appearing for the appellant that even if it is held that a marriage in fact had taken place, no evidence has been let in on the plaintiff's side to show that the various ceremonies to constitute a valid marriage had been gone through and that consequently the plaintiff has failed to establish that she was validly. married to Satya. Doubtless the two essential elements to constitute a valid marriage under the Hindu Law according to the Shastras are the Panigrahana and Saptapadi. The form of marriage prescribed by the Shastras can be modified by custom or long established usage. Three witnesses, viz., P. W. 3 the plaintiff and two other witnesses P. Ws., 1 and 2 had deposed about the marriage. Out of them it is only P. W. 1 who has spoken about the ceremonies observed at that time. He said that no Brahmin or barber had officiated in the marriaae. According to him. Satya and the plaintiff were made to sit on the altar some rice were sprinkled on their heads by a person known as Gani some mango leaves and turmeric were tied to their hands and legs and then they were made to move around the altar seven times. With this the marriage ceremony was over.

5. It is well established that where a marriage in fact has been performed, it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witnesses to the marriage should prove all the details which taken together constitute a valid marriage under the Hindu Law. This position of law has been established since a very long time and the Privy Council in Mouji Lal v. Chandrabati Kumari, (1911) ILR 38 Cal 700 (PC) has held that where a ceremony of marriage undoubtedly took place, the strong presumption in favour of the marriage applies to the forms and the ceremonies necessary to constitute it a valid marriaae.

6. There is the concurrent finding of the Court below that the marriage had actually taken place and P. W. 1 has givenevidence about the ceremonies that were observed at the time of marriage. It can, therefore, be presumed that all the legal formalities and the necessarv ceremonies of marriage had taken place. Defendant No. 1 who is challenging the validity of marriage has not rebutted the presumption by any evidence on his side. The finding that the plaintiff is the married wife of Satya cannot therefore be disturbed.

7. The finding of the Courts below that there was no previous partition as alleged by the defendants is not assailed before me. It is also not disputed that Satya's first wife Tilottama obtained a decree for maintenance against Satya in execution of the decree, 1.82 acres out of the family properties were attached and brought to sale and that one Parama Barik was the purchaser at the Court auction. Exhibit E is the warrant of attachment and Exhibit H is the sale certificate granted to Parama Barik. Ext. B is the warrant of delivery of possession of the lands to Parama. In respect, of these very lands purchased by Parama in Court auction on 17-1-1959. he executed a sale deed Exhibit G in favour of defendant No. 1 on 12-5-1960. The plaintiff's case Is that these 1.82 acres of land brought to sale in execution of the maintenance decree were actually purchased with joint familv funds Benami in the name of Parama and that thereafter with a view to defeat the right of plaintiff in these properties defendant No. 1 obtained a sale deed In respect thereof from Parama and that no consideration had been paid thereon and that in the circumstances the 1.82 acres of land in respect of which defendant no. 1 obtained the sale deed Ext G from Parama must be deemed to be a part of the joint family Properties. Two objections are raised in respect of this claim made by the plaintiff. Firstly it is argued that Section 66 of the Civil Procedure Code is a bar to the maintainability of the claim made by the plaintiff and secondly even if such claim is not dismissed on the ground of maintainability, there is no evidence to show that It is the joint familv which had purchased the 1.82 acres of land benami in the name of Parama. Section 66 of the Civil Procedure Code reads--

'66. (1) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2) Nothing in this section shall bar a suit to obtain a declaration that the nameof any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.'

This section enacts an exception to the general rule applicable to benami transactions. A benami transaction is not per se illegal, and unless brought about for fraudulent purpose and the fraud is carried out the Courts as a general rule give effect to real title as against the benami title. The Legislature by enacting Section 66 of the Civil Procedure Code has declared that this general rule shall not applv to execution sales held by the Court,

8. The enactment of Section 66, Civil P. C. is based on public policy, the primary object being that the certificate of purchase would be conclusive and to prevent it from being challenged. The purpose of that section is obviouslv to check the practice of judgment-debtors making secret purchases in the names of relations and friends at Court auction. It is with this aim that the embargo was laid on a suit founded on the plea of benami. It places a procedural bar to the enforcement of a claim that the plaintiff is the real owner and the auction purchaser was only a benamidar. But the position is different where such a purchase in Court auction is made by a Hindu coparcener with joint family funds. Under the Hindu Law every acquisition made by a Hindu coparcener with joint family funds becomes the common property of the family, in which the other members are entitled to share. Such acquisitions are not benami transactions which are the result of private agreements. The rights of coparceners to treat such acquisitions as the common property of the family arise from the operation of law. A suit, therefore, by one coparcener to a share in the property purchased by another at a Court sale with joint family funds is not barred under Section 66. Civil P. C. as it is based on a ground other than the one mentioned in Section 66, namely, that the purchase was made on behalf of the plaintiff. But where a joint Hindu family makes a Court auction purchase with joint family funds but takes the sale in the name of third person the Question arises whether any member of the family can sue the third person on the ground that the purchase was benami for the joint family and so enures for the benefit of the family. On this question there is a conflict of decisions. A Bench of the MadrasHigh Court had taken the view in P. Krishna Bhatta v. Mundila Ganapati Bhatta, AIR 1955 Mad 648 that such a suit is maintainable and Section 66 is no bar. The Allahabad High Court had held to the contrary in Baijnath Das v. Bishen Devi, AIR 1921 All 185 on the ground that the purchase by a managing member is made on behalf of all the members of the family and so is made on behalf of the plaintiff. This conflict is now set at rest by the decision of the Supreme Court in Girijananandini Devi v. Bijendra Narain Choudhury, AIR 1967 SC 1124 which favours the view expressed by the Madras High Court. This is what their Lordships stated in para. 13 of the judgment. Which is summarised in placitum (D)

'Where a person alleges that a property purchased at a Court auction was purchased on his behalf or on behalf of some one through whom he claims, the suit is clearly barred. But where the claim is that the properties belonged to the joint family, because they were purchased with the aid of joint family funds in the name of the benamidar such a claim does not fall within the terms of Section 66(1).'

9. Turning to the facts of the present case, the concurrent finding of the Courts below is that the purchase by Parama of Satva's share in the disputed property at the Court auction was benami for the joint familv. That is a finding which is binding on me in second appeal. In view of this finding. Section 66(1) Civil P. C. is no bar to the maintainability of the present suit The lower appellate Court has further found that after such Court auction purchase Parama simply transferred the lands in the name of defendant No. 1 without any consideration. In the circumstances, it must be held that the sale deed which Parama executed in favour of defendant No. 1 enures for the benefit of the joint family and consequently the property covered by the Court auction purchase cannot be excluded from partition. The learned Courts below were, therefore, rieht in passing a decree for partition in favour, of the Plaintiff and directing that she should get a one-third share in the suit properties.

10. In the result, the appeal fails and is dismissed, but, in the circumstances, without costs of this Court.


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