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Amar Parkash Sharma and ors. Vs. Parkashwati, Etc. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 235 of 1979
Judge
Reported inAIR1982Delhi143; 1981RLR673
ActsHindu Marriage Act, 1955 - Sections 16; Evidence Act, 1872 - Sections 32(5); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 22
AppellantAmar Parkash Sharma and ors.
RespondentParkashwati, Etc.
Advocates: A.C. Gambhir,; J.P. Jain,; C.B. Thanai and;
Excerpt:
.....basis of finding given by the lower court - the appellate court has the power to pass such order as per the facts of the case - in view of the aforesaid facts, it was ruled that it would be essential to exercise powers under order 41 rule 33 of the civil procedure code, 1908 - accordingly, the respondents were entitled to inherit estate of the deceased - - (4) the first question for decision thereforee is :whether parkash wati is the legally wedded wife of ram parkash sharma deceased ? the trial court has observed that parkash wati has failed to prove the ceremonies of the marriage and thereforee. in badri prasad vs .deputy director of consolidation and others [1979]1scr1 the supreme court has observed, a strong presumption arises in. parkash wati, as already stated, has studied..........parkash wati is the daughter of kishan singh, a government servant who used to reside at 30, aram bagh lane, new delhi. ram parkash sharma, deceased used to reside at 33, aram bagh lane, new delhi. various witnesses from the locality lave deposed about the factum of marriage between the two in april, 1954. balwant singh, o.w.3 deposes that chanan devi first wife of the deceased was his sister, that she became insane after her marriage, that the deceased expressed his desire to have a second wife, that the deceased with the consent of his father-in-law married parkash wati, that kumari seema is their daughter. he says that after the marriage, the deceased and parkash wati lived together, that he never saw amar partash sharma, appellant living with them. he further deposes that they.....
Judgment:

Sultan Singh, J.

(1) The appellants, Amar Parkash Sharma and his sister Amar Devi Challenge the judgment and order of the trial court granting Succession Certificate to Kumari Seema minor through her mother and natural guardian Smt. Parkash Wati in respect of the debts and securities of the deceased Ram Parkash Sharma. They also challenge the order refusing to grant the Succession Certificate to Amar Parkash Sharma, appellant in F.A.O. No. 236 of 1979. The brief facts arc as under :

(2) Ram Parkash Sharma died on 9th January, 1976. His widow Smt. Chanan Devi an insane through her next friend Amar Parkash Sharma (appellant) on 17th February, 1976 filed an application for the grant of Succession Certificate in respect of debts and securities left by the deceased. On 23rd February, 1976 Parkashwati alleging herself to be the widow of the deceased and Kumari Seema minor daughter of the deceased filed another application for the grant of Succession Certificate. Chanan Devi widow unfortunately died on 29th. July, 1977 and thereforee her application for the grant of Succession Certificate lapsed. Amar Parkash Sharma, appellant on 20th August, 1977 thereforee filed another application for the grant of Succession Certificate to him. All these proceedings were consolidated. Parties filed their respective objections in the applications for the grant of Succession Certificate. It is admitted that Amar Parkash Sharma is the brother of the deceased. The disputes are : Whether Parkash Wati is the widow of the deceased, and Kumari Seema is his minor daughter. The trial court by its judgment and order dated 21st November, 1978 granted Succession Certificate to Kumari Seema holding her to be the illegitimate minor daughter of the deceased. This certificate was granted through her mother and natural guardian Smt. Parkash Wati. The application for the grant of Succession Certificate by Amar Parkash Sharma was dismissed. The trial court has held that Parkash Wati has not been able to prove that she is the legally wedded wife of Ram Parkash Sharma, deceased.

(3) Learned counsel for the appellants submits that Kumari Seema is not entitled to the grant of, Succession Certificate. He says that she is not the illegitimate daughter of the deceased, under Section 16 of the Hindu Marriage Act. Learned counsel for the respondents, namely, Parkash Wati arid Kumari Seema however, challenges the finding of the trial court that Parkash Wati was not the legally wedded wife of the deceased. He submits that she was legally wedded wife and Kumari Seema was their legitimate daughter. In other words, he claims the. grant of the Succession Certificate in favor of both Parkash Wati (widow) and Kumari Seema (daughter). Counsel for the appellants further says that Parkash Wati is not the widow of the deceased and that Amar Parkash Sharma appellant is entitled to the grant of the Succession Certificate.

(4) The first question for decision thereforee is : Whether Parkash Wati is the legally wedded wife of Ram Parkash Sharma deceased The trial court has observed that Parkash Wati has failed to prove the ceremonies of the marriage and thereforee. it held that she is not the legally wedded wife of the deceassed. This finding is contrary to the evidence on record. The evidence led by the appellants is to the effect that they never witnessed the marriage between the deceased and Parkash Wati. Some of the witnesses on behalf of the appellants have deposed that they never saw the two living together. Parkash Wati is the daughter of Kishan Singh, a Government servant who used to reside at 30, Aram Bagh Lane, New Delhi. Ram Parkash Sharma, deceased used to reside at 33, Aram Bagh Lane, New Delhi. Various witnesses from the locality lave deposed about the factum of marriage between the two in April, 1954. Balwant Singh, O.W.3 deposes that Chanan Devi first wife of the deceased was his sister, that she became insane after her marriage, that the deceased expressed his desire to have a second wife, that the deceased with the consent of his father-in-law married Parkash Wati, that Kumari Seema is their daughter. He says that after the marriage, the deceased and Parkash Wati lived together, that he never saw Amar Partash Sharma, appellant living with them. He further deposes that they lived together at 33,Aram Bagh Lane, New Delhi till the death of the deceased, and that Parkash Wati previously used to live at 30, Aram Bagh Lane, New Delhi. Sucha Singh O.W. 4 is a resident of 24, Aram Bagh Lane, New Delhi. He deposes that he has been residing there since 1945, that marriage between Ram Parkash Sharma and Parkash Wati was performed in 1954 on one Sunday near about Baisakhi day, that he attended the marriage as a neighbour, that the marriage was performed in the lawn in front of 30, Aram Bagh Lane, New Delhi, that Kishaa Singh, father of Parkash Wati used to reside there, that Parkash Wati gave birth to a daughter who is now aged about 9 years. He also says that they used to reside at 33, Aram Bagh Lane, New Delhi. He, however, could not state when Kishan Singh, father of Parkash Wati died, whether in Delhi or at any other place. O.W. 5 Chaman Lal is another neighbour resident of 26, Aram Bagh Lane, New Delhi. He deposes that he has been residing there since 1947, that. the marriage between the deceased and Parkash Wati was performed in 1954, that her father used to reside at 30, Aram Bagh Lane, New Delhi, that a daughter was born of the said wedlock, that Parkash Wati used to reside with the deceased up to the time of his death in Aram Bagh Lane, New Delhi. He further says that the marriage was performed according to Granth Sahib. In cross-examination he says that Parkash Wati was the daughter of Kishan Singh, that up to April, 1954 she used to reside with her father, that he was invited by Kishan Singh to attend the marriage, that Kishan Singh is dead but he did not remember the date of his death. He further deposes that he does not know as to who performed the Anand Kara) ceremony. He however says that the marriage was performed at 10 A.M. and that it was Sunday near about the Baisaki day. In cross-examination no particulars of marriage ceremonies were asked on behalf of the appellants. O.W. 6 Pritam Singh is the son of the sister of the deceased. He deposes that Ram Parkash Sharma married Parkash Wati. in April, 1954 in the lawn in front of 30, Aram Bagh Lane,. that he attended the marriage, that the marriage ceremony according to Anand Karaj was performed, that a daughter was born of the said wedlock, that the relations between the deceased and Amar Parkash Sharma were strained, that they were not on visiting terms, that Amar Parkash Sharma did not attend the marriage between the two. He however, states that Amar Parkash Sharma attended the death ceremony of Ram Parkash Sharma and thereafter he started visiting the place of the deceased. In cross-examination he deposes that the Granthi distributed sweets, that he does not know the name of the Granthi. that Parkash Wati used to live with Ram Parkash Sharma and continued to reside with him till the date of his. death.

(5) Parkash Wati in her statement as O.W. 9 deposes as that he was married to Ram Parkash Sharma in April, 1954, that Channa Devi was his first wife was insane who was living with him, that Chanan Devi was looked after by her husband during: his life time and after his death she used to look after her. She says that she was married at 30, Aram Bagh Lane and the ceremony of Anand Karaj was got performed by her father, That in 1969 she delivered a daughter in Lady Hardinge .Hospital and her name is Seema Sharma. She further states that Ram Parkash .Sharma, her husband got their daughter admitted in the school, that he was employed as an Assistant in the Ministry of Education, Government of India besides a part-time watch repairer. She further says that her husband opened a bank account in the Bank of India in the name of his daughter. In cross-examination she says that she got education up to 8th class: but is unable to read or write English, that her father, sister, brother and .maternal uncle were present at the time of marriage, that letters were written to those relations about the marriage, that invitation cards were not issued. She does no know the particulars of. the person who came from Gurdwara to perform the marriage rites, that Amar Parkash Sharma or his relations were not present at the time of marriage as they were opposing the marriage. She further says that till marriage she used to reside at 30, Aram Bagh Lane, and thereafter started living with the deceased at 33, Aram Bagh Lane and that her husband Mr. Sharma died on account of heart attack, at the Milk Depot. She denies the suggestions that she is not the legally wedded wife of the deceased or that Kumari Seema was not born of the said wedlock. J.S. Rawal O.W. 2 is a clerk from Lady Hardinge Medical College and Hospital. He deposes that Parkash Wati wife of Ram Parkash resident of 33, Aram Bagh Lane. New Delhi was admitted in the hospital on 16th September, 1969 and delivered a female baby. He produced the admission sheet which is Ex. OW2/1. This record of the hospital shows that Ram Parkash Sharma is the husband of Parkash Wati and that a female baby was bom to her on 16th September, 1969. Mrs. Satya Madan Head Mistress of Arya Pursharthi Pathshala, Chuna Mandi, Paharganj, New Delhi (O.W. 1) deposes that the school maintains the record of admission of various children, that on 8th August, 1975 Kumari Seema daughter of Ram Prakash Sharma resident of 33E Aram Bagh Lane, New Delhi was admitted in the school, that her admission form and an. affidavit were .filled in by Ram Parkah Sharma, that those were signed by Ram Parkash Sharma in her presence. The admission form and the affidavit are O.W.. 1/1 and O.W. 1/2. She further deposed that Parkash Wati present in court was the mother of Kumari Seema and that she used to visit school to fetch her daughter. In cross-examination she says that the parents of Kumari Seema had visited the school at the time of admission, that Ram Parkash Sharma signed the admission form in her presence. The admission form Ex. O.W. 1/1 mentions the father's name as Ram Parkash Sharma. It describes her date of birth as 16th September, 1969. This form shows her residential address as 33-E Aram Bagh Lane, New Delhi. The affidavit, regarding date of birth of Kumari Seema: Ex. O.W. 112 has been signed by the deceased at two places declaring him as parent and not guardian of the child. From these two form it appears that Ram Parkash Sharma was the father of Kumari Seema. Gulshan Kumar Bhardwaj, Staff Officer, Bank of India, Parliament Street Branch, O.W. 7 produces the bank account card in the name of Kumari Seema, minor daughter of Ram Parkash Sharma Ex. Ow 7/A. This account was opened by the deceased as a father and natural guardian of minor Kumari Seema Sharma, on 31st October, 1975. The deceased was also operating his bank Account No. 8727. He opened this fresh account in the name of her daughter disclosing her date of birth as 16th September, 1969. This form further mentions his residential address 33-E Aram Bagh Lane, New Delhi. It appears that the quarter No. is 33 Aram Bagh Lane while Block is 'E'. It is not disputed that the deceased was resident of 33E Aram Bagh Lane, New Delhi. Ow 7/B is the pay-in-slip. O.W. 7/C is the statement of Account of Kumari Seema maintained by the bank, Vijay Verma clerk of New Delhi Municipal Committee Ow 8 produces the birth register and deposes that at S. No. 368 of September, 1969 pertaining to birth at Lady Harding Hospital, New Delhi, there is an entry regarding the birth of a female baby on 16th September, 1969 describing her father's name as Ram Parkash Sharma and mother's name as Parkash Wati Sharma residents of 33, Aram Bagh Lane, New Delhi. He further says that this intimation was communicated to the New Delhi Municipal Committee by the hospital authorities. From this oral and documentary evidence it is conclusively established that Ram Parkash Sharma, deceased and Parkash Wati were lawfully married that since the date of marriage they lived together as husband and wife at 33, Aram Bagh Lane. New Delhi. The appellants' have pleaded that Parkash Wati is not the wife or widow of Ram Parkash Sharma, deceased and similarly Kumari Seema is not' the daughter of the deceased. This is the only pleading on behalf of the appellants. From the evidence produced by them I find that nothing substantial has been deposed by any of the witnesses except that they never witnessed any marriage between the two, that Parkash Wati was not residing with the deceased at 33, Arant Bagh Lane, New Delhi. From the evidence on record it is clear that relation. between the deceased and his brother Amar Parkash Sharma were strained.

(6) Learned counsel for the appellants submits that the hospital record and bank record are not relevant for determining the questions involved in the present case. As already stated, the disputes relate to the existence of relationship between the deceased, Parkash Wati and Kumari Seema by blood or marriage. Ram Parkash Sharma is dead. Parkash Wati was got admitted in the hospital where the name of her husband was disclosed as Ram Parkash Sharma. He got his daughter admitted in the school where he declared himself as the father of Kumari Seema. Further he got the account opened with the bank where also he declared her as her daughter and himself as father and natural guardian. Section 32(5) of the Indian Evidence Act reads as under :

'32Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases : (5) When the statement relates to the existence of any relationship (by blood, marriage or adoption) between persons as to whose relationship (by blood, marriage or adoption) the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.'

Under this Section the statements made by the deceased before the commencement of the present litigation, between the parties, relating to marriage and the birth of the daughter are relevant facts. These statements were made by Ram Parkash Sharma before his death and are relevant and material under the said provision of the Evidence Act. The trial court has observed that father, sister and brother-in-law and maternal uncle of Parkash Wati who were present at the time of marriage were not produced and thereforee adverse presumption was drawn against Parkash Wati. It is not disputed before me that father of Parkash Wati was dead at the time of the commencement of the present litigation and her other relations are not residents of Delhi. All the witnesses on behalf of Parkash Wati state that the ceremonies of marriage according to Anand Karaj was performed. No material question in cross-examination regarding marriage ceremonies has been asked on behalf of the appellants. The marriage took place in April, 1954 and Ram Parkash died in 1976. Parkash Wati does not know the name of the priest who performed the marriage. But all the witnesses deposed that the marriage was performed in the lawn in front of 30 Aram Bagh Lane, New Delhi and that after marriage both lived together as husband and wife at 33, Aram Bagh Lane, New Delhi. From the pleadings of the appellants it appears that the factum of marriage was not specifically disputed. In Badri Prasad vs . Deputy Director of Consolidation and others : [1979]1SCR1 the Supreme Court has observed, 'A strong presumption arises in. favor of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable,a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favor of legitimacy and frowns upon basturdy'. Thus after a lapse of 22 years in the present case it does not lie in the month of the appellants to say that in the absence of evidence of the priest the marriage ceremonies cannot be deemed to have been proved. In this case it is in evidence that various neighbours of the colony where the deceased used to reside were invited to the marriage. The trial court has not considered the statements of the various neighbours in whose presence marriage was performed. The trial court was wrong in ignoring the statements of these witnesses. Parkash Wati was a young lady at the time of her marriage. If she now does not know the name of the priest who performed her marriage no presumption can be drawn against her. Moreover, she has not been able to give the exact date of her marriage and thereforee the trial court has drawn presumption against. her. Parkash Wati, as already stated, has studied upon 8th class and if she has failed to give her date of marriage it cannot be said that there was no marriage between the two. Further great stress has been laid by the learned counsel for the appellants and the trial court on the circumstances that the name of Parkash Wati is not included in the ration card of the deceased, and in the Central Government Health Service card and also as nominee in L.I.C. Policy obtained after the marriage between the two. It is submitted by the learned counsel for Parkash Wati that Ram Parkash Sharma was a Government servant, and marriage was performed in April, 1954, that no permission under Government Conduct Rules it appears was obtained by him from the appointing authorities for entering into the second marriage with Parkash Wati. This may be a plausible Explanationn for the absence of her name in the ration card, C.G.H.S. card and L.I.C. Policy. Again the trial court has observed that father has not been produced. As already stated, father was dead on the date when this litigation started. Learned counsel for the appellants further 'brings to my notice that in the electoral roll of 33 Aram Bagh Lane the name of Parkash Wad does not find place as a voter. Ex. Public Witness 7/C, P.W. 7/D and Public Witness 7/E are the electoral rolls for the years 1965, 1970 and 1971. He further states that her name appears in the voter list for 1961 and 1965 at Quarter No. 30, Aram Bagh Lane, New Delhi. His contention is that it must thereforee be held that she has been a resident of 30, Aram Bagh Lane, New Delhi and not of 33, Aram Bagh Lane, New Delhi and that there was no marriage between the two because in 1961 and 1965 voter list the name Parkash Kaur (maiden name of Parkash Wati) has been mentioned and though alleged to be married her husband's name has not been mentioned. It appears that Parkash Kaur was a voter at her father's address, 30, Aram Bagh Lane; she was married in 1954 and nobody took any step for getting her address changed in the voter list. It is a common knowledge that names from the voter list of previous year are copied out in the voter .list for the subsequent year unless door to door checking is carried out effectively and objections are filed. For practical purposes Parkash Wati was' a voter in the same parliamentary constituency. If her address has been shown as 30 or 33 Aram Bagh Lane, it was immaterial for the contesting candidates. It thereforee, seems that nobody seriously took note of the wrong address of Parkash Wati in the voters list for 1961 and 1965. Learned counsel for the appellants next contends that Parkash Wati was not being treated as wife. He relies -upon a note book which was used to be maintained by the deceased, where various entries are in his hand relating to house hold expenses. At various places an amount of Rs. 40.00 or Rs. 50.00 has been shown as paid to her.- Learned counsel for the appellants contends that this was salary paid to her as maid servant. This suggestion has been emphatically denied by Parkash Wati. It also docs not stand to reason that when she has been living as wife since 1954 with the deceased she would be acting as maid-servant to him and getting Rs. 40.00 or Rs. 50.00 as salary. This suggestion was rightly rejected by the trial court. Moreover there is no plea by the appellants that she was maid servant of the deceased. It is also contended by the learned counsel for the appellants that photographs of marriage ceremony have not been produced. Nothing has been brought to my notice that production of photograph showing the ceremonies of the marriage is essential. It is correct that generally people take photographs at the time of marriage ceremonies but it cannot be said that in the absence of photographs it can be held that there was no marriage. Learned counsel for the appellants further submits that Kumari Seema who was held to be illegitimate daughter of the deceased by the trial court is not entitled to the grant of Succession Certificate as she is not the .illegitimate child within the meaning of Section 16 of the Hindu Marriage Act. After discussion of the evidence on record I am of the view that Parkash Wati was lawfully married to the deceased in April, 1954 and Kumari Seema is their daughter and it is not necessary to determine if she was illegitimate child under Section 16 of the Hindu Marriage Act. In other words, Parkash Wati is the widow and Kumari Seema is the legitimate daughter and both are heirs of the deceased. They are entitled to inherit the estate of the deceased in preference to Amar Parkash Sharma, appellant who is brother of the deceased.

(7) Lastly, learned counsel for the appellants, contends that no appeal has been filed by Parkash Wati against the order of the trial court rejecting her claim for the grant of Succession Certificate and thereforee she cannot be granted any relief in the present appeal. The objection has no force. Order 41 rule 22 of the Code of Civil Procedure as amended by Act 104 of 1976 enables a respondent not only to support the decree or order on the basis of finding given by the lower court in her favor but also to contend that the finding against her in the court below in respect of any issue ought to have been in her favor besides filing cross-objections. In the present case Succession Certificate has been granted by the trial court in favor of Kumari Seema. Learned counsel for the respondents submits that Kumari Seema would be entited to the grant of Succession Certificate, if it be held that there was lawful marriage between the two. Under Order 41 rule 33 of the Code the appellate court has power to pass such order, as the case may require although appeal to that effect has not been filed. Thus in this case it is essential to exercise powers under Order 4] rule 33 of the Code for the grant of relief to Parkash Wati and Kumari Seema. They are both entitled to inherit the estate of the deceased and as such Succession Certificate ought to be granted to them. I, thereforee, modify the order of the trial court and hold that Parkash Wati and Kumari Seema widow and daughter of the deceased are entitled to the grant of a Succession Certificate with respect of the debts and securities of the deceased mentioned in their application for the grant of Succession Certificate. The trial court is accordingly directed to issue Succession Certificate to them in accordance with law. The petition for the grant of Succession Certificate by the appellants is dismissed. The result is that F.A.O. No. 235 and 236 of 1979 are dismissed and Parkash Wati and Kumari Seema are held to be entitled to the grant of Succession Certificate. No order as to costs.


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