N.C. Mukherji, J.
1. This is an appeal against the judgment and decree passed by Shri S. K. Ghosh, Judge, 7th Bench, City Civil Court, Calcutta dated 28th Jan. 1976, in Title Suit No. 91 of 1971. The plaintiffs are the appellants in this Court.
2. The plaintiffs brought a suit for recovery of khas possession upon declaration of title and for other reliefs. The dispute is in respect of two properties, namely, premises No. 36, Nabin Sarkar Lane, and 45, Baghbazar Street, Calcutta. The former is a two storeyed pucca building and the latter is a thika tenancy consisting of about 10 rooms of which some are in the occupation of tenants. It is the plaintiffs' case that both the suit properties originally belonged to one Benoy Mukherjee who died in 1946 leaving his two sons Bijoy and Basanta as his sole heirs. Basanta died unmarried in Aug. 1969 leaving his brother Bijoy as his sole heir. On Bijoy's death in 1970 his sons Bikash and Bivash, plaintiffs Nos. 1 and 2 and the children and widow of Bijoy's predeceased son Biman inherited his properties. They are plaintiffs Nos. 3 to 5. All the plaintiffs are in khas possession of the entire premises No. 36 Nabin Sarkar Lane. Defendant No. 1 Sm. Nandarani Mukherjee is the mother and guardian of the minor childern (defendants 2 to 5.) She was a concubine of Basanta Mukherjee and lived with him and her children at 45, Baghbazar Street, Calcutta, till Basanta's death. They have no right, title and interest whatever in any of the suit properties. But defendant No. 1 fraudulently obtained a certificate of guardianship in respect of person and properties of defendants Nos. 2 to 5 under Section 10 of the Guardians and Wards Act from the City Civil Court. Calcuttaon 12-12-69 in Act VIII Case No. 28 of 1969 falsely claiming that the minors are heirs of Basanta Mukherjee. The plaintiffs, in the circumstances, prayed for a declaration of their 16 annas titles in both the suit properties upon a finding that the above guardianship certificate granted to defendant No. 1 is null and void and not binding upon the plaintiffs. They also prayed for recovery of khas possession of premises No. 45, Baghbazar Street, Calcutta.
3. The defendants contested the suit and denied all the material allegations of the plaint. The defence is that premises No. 45, Baghbazar Street belonged to Basanta exclusively and not to his father Benoy, that defendant No. 1 Nandarani is the legally married wife of Basanta and that defendants Nos. 2 to 5 are their legitimate children, that Bijoy never inherited Basanta's property. The defendants inherited the entire premises No. 45, Baghbazar Street from Basanta and undivided half share of premises No. 45, Nabin Sarkar Lane and that the guardianship certificate in Case No. 28 of 1969 had been obtained by the defendant No. 1 with due notice to the plaintiffs and without practising any fraud or misrepresentation as alleged by the plaintiffs and that the said certificate is binding on the plaintiffs. The learned Judge found on evidence that the defendant No. 1 Smt. Nandarani Mukherjee is the legally married wife of Basanta and their children are all legitimate ones. Consequently, the defendants are Basanta's heirs and that the plaintiffs' predecessor Bijoy did not inherit any property of Basanta. The learned Judge consequently found that the plaintiffs have no right, title and interest in the premises No. 45, Baghbazar Street. It was also found that they did not inherit any interest in the undivided half share of the property, namely, 36, Nabin Sarkar Lane which originally belonged to Basanta. It was further found that the defendants are sole and exclusive owners of half share of 36, Nabin Sarkar Lane and are owners of full share of 45, Baghbazar Street. It was also found by the learned Judge that the guardianship certificate obtained by defendant No. 1 could not be held to be illegal or void in any way. In the result, the suit was decreed in part. It was declared that the defendants are co-sharers of the plaintiffs in respect of the disputed premises No. 36, Nabin Sarkar Lane to the extent of undivided half share only. Theplaintiffs' other claims were 'dismissed. It was ordered that the defendants would get full cost of the suit from the plaintiffs. Being aggrieved, the plaintiffs have come up in appeal.
4. Mr. B. C. Dutt, learned Advocate appearing on behalf of the appellants, contends that the learned Judge was wrong to think that the marriage between Basanta and Nandarani was performed legally. He ought to have noted that before the passing of the Hindu Marriage Act, 1955 no valid marriage could have been performed between a Brahmin and a non-Brahmin. It is the admitted position that Nandarani's father was a non-Brahmin and that being so, no legal marriage could have been performed between Basanta who was a Brahmin and Nandarani who was a non-Brahmin. Mr. Dutt in support of his contention that a marriage between a Brahmin and a non-Brahmin was prohibited in Hindu Law before the passing of the Hindu Marriage Act refers to Mulla's Hindu Law, Golap Sastri's Hindu Law and Sir Gurudas Banerji's Marriage and Stridhan. There is no doubt that such was the position under the old Hindu Law. Mr. Amiya Narayan Mukherjee, learned Advocate appearing on behalf of the respondents, on the other hand, submits that Nandarani deposed on 29th April, 1976 that her marriage took place 19/20 years ago. That being so, it can be said that the marriage was performed according to Hindu Marriage Act, 1955. Even assuming that the marriage was performed before the passing of the Hindu Marriage Act, then also the marriage between a Brahmin and a non-Brahmin was valid according to the Hindu Marriage Validity Act, 1949. If really a marriage took place between Basanta and Nandarani then the evidence on record goes to indicate that such marriage was performed after the passing of the Hindu Marriage Validity Act, 1949. We accept the submission of Mr. Mukherjee and find that after the passing of the Hindu Marriage Validity Act, 1949 a marriage between a Brahmin and a non-Brahmin was valid and in this case if it is found that a marriage ceremony took place between Basanta and Nandarani on the evidence on record it must be found that it took place not before 1949. In the next place, Mr. Dutt contends that there is absolutely no evidence on which the leaned Judge could come to a conclusion that a valid marriage took place between Basanta andNandarani and the learned Judge, according to Mr. Dutt, wrongly rejected the evidence adduced on behalf of the plaintiffs and accepted those adduced on behalf of the defendants. In this connection, Mr. Dutt also submits that the plaintiffs have examined the local witnesses who deposed to the effect that there was no marriage between Basanta and Nandarani. The defendant has chosen not to examine any of her relations or the priest or the barber. She has not even examined Shefali, who, according to the defendant, arranged her marriage. Mr. Dutt also contends that the learned Judge was wrong to hold that from the fact that Basanta and Nandarani lived together for a considerable period and got 4 children it must be presumed that a marriage took place between Basanta and Nandarani. Mr. Dutt on the question of presumption of marriage refers to a decision, reported in (1908) 35 Ind App 41 (PC) (Ma Wun Di v. Ma Kin). It has been held in this case that 'before applying the general presumption of marriage arising from co-habitation with habit and repute, there must be some body of neighbours before repute can arise, and the habit and repute must be of that particular status which in the country in question (meaning Burma) is lawful marriage'. Mr. Dutt next relies on a decision, reported in (1901) ILR 28 Cal 37 (Surjyamoni Dasi v. Kali Kanta Das). In this case, it has been held: 'when, in a suit for restitution of conjugal rights, the validity of the marriage itself is disputed, it is not enough to find that the marriage took place, leaving it to be presumed that the rites and ceremonies necessary to constitute a legal marriage in the particular case were performed. The Court must find specifically what these rites and ceremonies are, and whether they were performed'. The principle laid down in this case does not apply to the facts of the present case. In the case referred to above, the performance of marriage was not disputed, the validity of the marriage was challenged on the ground that necessary rites and ceremonies were not performed. That being the position, it was held that 'the court was required to find what were the requisite rites and ceremonies to constitute avalid marriage and whether in the particular case those rites were performed'. Mr. Dutt next refers to a decision, reported in (1911) ILR 34 Mad 277 (Chellammal v. Ranganathan Pillai). In thiscase, on a consideration of the facts their Lordships held 'the fact that a woman was living under the control and protection of a man, who generally lived with her and acknowledged her children as his will raise a strong presumption that she is the wife of that man'. This observation, no doubt, goes against the appellants. But, Mr. Dutt relies on other observation, namely, 'this presumption will, however, be rebutted by proof of facts which show that no marriage could have taken place. Where relations and castemen who would have been present at the marriage if it had taken place are not called as witnesses, and persons who would have been invited have received no invitation the presumption will be that no marriage has taken place'. There is no doubt that in the present case it is the admitted position that Nandarani and Basanta were living together for a long period. Basanta acknowledged Nandarani's children as his. So, there is a strong presumption that Nandarani was the wife of Basanta. This presumption may be rebutted by the other side who comes with assertion that Nandarani was never the legally married wife of Basanta. It may be mentioned that no relation has been examined in this case. The learned Judge could not rely on the evidence adduced on behalf of the plaintiffs to come to a finding that no marriage took place between Basanta and Nandarani. It is worth mentioning that Nandarani also did not examine any relation. But, it may be remembered that it is the common case that Basanta was driven away by his father long back and was living separately at 45, Bagh Bazar St. and subsequently he lived with Nandarani. In such circumstances, it was not possible for Nandarani to examine the common relations. Mr. Dutt also contends that certain rites and ceremonies, specially Saptapadi, are essential to constitute a valid marriage and a marriage becomes valid and complete only after Saptapadi. In support of this contention Mr. Dutt refers to a Full Bench decision of Lahore High Court, reported in AIR 1948 Lah 129 (Mr. Amar Nath v. Mrs. Amar Nath). It has been held in this case that 'a Hindu marriage in the vedic form which includes certain ceremonies such as performance of the Homam, the panigrahana or taking hold of the bride's hand going round the fire with the vedic mantras, and the seven steps or saptapadi, is completed upon thetaking of the seventh step, and under the Hindu Law, the marriage tie thus created is indissoluble'. Mr. Dutt submits that in the present case no evidence has been adduced by the defendants to show that Saptapadi or other essential rite was performed. It is true that Nandarani has not deposed to the effect that Saptapadi was performed. But, she in very clear terms states that her marriage took place with Basanta. She has examined one Ashutosh Das, a neighbour and friend of Basanta, who fully sup-ports Nandarani. If it is proved that a marriage was performed, it is only natural to think that all the rites and ceremonies essential to constitute a valid marriage were also performed. Mr. Mukherji, in this connection refers to a decision, reported in (1921) 63 Ind Cas 387 (Lah). Mr. Mukherji submits that it is in evidence that Basanta all along recognized the children of Nandarani as his own children and treated Nandarani as his wife. That will appear from the Ration Card, the Voters' List and the School Register. To strengthen his argument that from these documents it is only reasonable to presume that a marriage took place between Basanta and Nandarani, Mr. Mukherjee refers to a decision, reported in : AIR1971Mad330 (Raghuvir Kumar (minor) v. Smt. Shan-mughavadivu). It was held in this case that 'long cohabitation for 15 years as husband and wife and evidence of conduct and repute, recognition as husband and wife by family members, other relations and society, children born out of such union similarly treated as their children -- from these facts a strong presumption arises in favour of a valid marriage'. It has also been held that 'where the factum of the celebration of some form of marriage is established, court is justified in the circumstances of the case in raising the legal presumption of lawful marriage arising out of the long cohabitation and repute'. Mr. Mukherjee contends that the presumption which arises in favour of the defendant from the facts and circumstances, referred to above, has not been rebutted by the plaintiffs. Mr. Mukherjee also seeks reliance from a decision, reported in AIR 1952 SC 231 (Gokal Chand v. Parvin Kumari). In this case, their Lordships have observed 'continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage'. It is true that their Lordshipshave further held 'but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them'. Mr. Mukherjee submits that in the present case, there is no circumstance which can weaken or destroy the presumption which strongly arises in favour of the fact that a marriage took place between Basanta and Nandarani. Mr. Mukherjee also refers to a decision reported in (1911) 38 Ind App 122 (PC) (Mouji Lal v. Musammat Chandrabati Kumari). It has been held by the Judicial Committee 'it is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its offspring that from the time of the alleged marriage the parties are recognized by all persons concerned as man and wife and so described in important documents and on important occasions. The like presumption applies to the question whether the formal requisites of a valid marriage ceremony were satisfied'. On behalf of the appellants, reliance was placed on a decision, reported in : 1965CriLJ544 (Bhaurao Shankar Lokhande v. State of Maharashtra). In this case, it has been held that 'Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act, and (ii) at the date of such marriage, either party had a spouse living. The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form'. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is, therefore, essential for the purpose of Section 17 of the Act, that the marriage to which Section 494, I. P. C., applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form'. The principle laid down in this case does not apply to the facts of the present case. In the case before their Lordships, it was a question whether there should be any punishment under Section 494 of the Indian Penal Code for bigamy according to the provisions of Section 17 of the Hindu Marriage Act. In that connection, their Lordships held that before punishing a person it must be satisfactorily proved that a validmarriage was performed between the parties.
5. It is now necessary to scrutinise the oral evidence adduced by the parties. The plaintiff has examined plaintiff No. 2 Bivash who adduced evidence that the defendant No. 1 Nandarani was a concubine of Basanta. He, however, admits that defendants Nos. 2 to 5 are minor sons and daughters of Nandarani by Basanta. He also admits that defendant No. 1 obtained a Guardianship Certificate from the learned Judge, City Civil Court in respect of the person and properties of the minor defendants 2 to 5 concerning the two disputed properties in Case No. 28 of 1969 under Section 10 of the Guardianship Act. He, however, states that she obtained the above certificate by suppressing the fact that she was not the legally married wife of Basanta Kumar Mukherji. No notice was served upon them. But, in cross-examination, he was constrained to admit that an Accountant of the Court visited their house for making enquiry in the guardianship certificate case in question. It was on or about 23rd or 24th Feb., 1970. On that day they first came to know the guardianship certificate case started by Nandarani before the Chief Judge of the Court The certificate was actually granted to Nandarani. He admits that they made a misake in not making enquiries in Court regarding the guardianship certificate case after coming to know of it on 23rd or 24th Feb., 1970. He cannot say if any notice had been given to his father in that guardniaship case during his lifetime. This being the nature of the evidence it cannot be said that no notice of the guardianship certificate case was served upon the plaintiffs or their predecessor. The only reason why he thinks that Nandarani was concubine of Basanta is that because he earlier saw Nandarani working as a maidservant in two houses of the locality and he could not imagine that his uncle would marry a woman who acted as a maid-servant in some houses of the locality. Excepting this he has no other reasons to say that Nandarani was a concubine of his uncle Basanta. He stated that defendants 2 to 5 are illegitimate children of Basanta. He makes such a bold statement only from the surrounding circumstances. He, however, does not know if the defendants 2 to 5 are known to the society as legitimate or illegitimate children of Basanta. His information is that defendant No. 2's father'sname appears in the school register as Basanta Kumar Mukherjee. He does not know if the people of the locality know the defendants 2 to 5 as children of Basanta. He does not know if para people know the defendants 2 to 5 as legitimate children of Basanta. Towards the concluding portion of the cross-examination, after the statements of para 6 of the plaint were read over, the witness states that the illegitimacy of the defendants and the defendant No. 1's connection with Basanta is based on his own imagination and ideas. P. W. 2 goes on to say that he is not aware of any marriage of Basantababu at his house at 45, Bagh Bazar Street, Calcutta. It may be mentioned that it is not the case of the defendant's that the marriage took place at 45, Baghbazar Street. His evidence in examination in chief has been completely demolished by what he states towards the concluding portion of the cross examination. The witness states that he does not know if Basanta Babu actually married Nandarani or begot 4 children, defendants 2 to 5 or Nandarani lived in his house. But, it is true that Nandarani used to live in the house of Basantababu. He states that Basantababu never married because he never personally witnessed any marriage solemnized between Basantababu and Nandarani. The evidence adduced by P. W. 3 is not at all relevant for our present purpose. P. W. 4 states that he does not know whether Basantababu was a married man. His evidence also does not throw any light in deciding the present question. P. W. 5 is a formal witness. P. W. 6 comes to say that Basantababu never married. Nandarani was never married to Basantababu. This witness also gives a go by to what he says in examination in chief. Towards the concluding portion of the cross-examination, the witness says that he does not know if Nandarani was the legally married wife of Basanta Mukherjee. The last witness for the plaintiffs is P. W. 7 who, in examination-in-chief, states that Nandarani was not married to Basanta. In the next breath he says that he saw Nandarani living with Basantababu as his wife. After making this statement, he corrects himself by saying 'as a concubine'. It is interesting to note his statement. In cross-examination, this witness states that the plaintiffs Bikash and Bivash know them to be children of Basanta. Basanta and Nandarani used to live as husband and wife. From outside one could not understand whether shewas a concubine or married wife of Basanta. He, however, states that to his knowledge there was no marriage between Basanta and Nandarani Immediately after he states that he cannot say whether Basanta married Nandarani. Again, he states that he cannot say if Basantababu had actually married Nandarani. This is all the evidence adduced by the plaintiffs and we have no hesitation to say that the learned Judge was quite right in placing no reliance upon such evidence, which, without supporting the case of the plaintiffs, goes to support the case of the defendants. Defendant No. 1 Nandarani has been examined as D. W. 4. She very frankly admits that she used to work in the house of one Shefali Mukherji. Her work was to look after Shefali's child. It was Shefali who arranged her marrige with Basanta. It appears from the records that on several occasions Shefali attended Court but, on those days Shefali was not examined and on the day when witnesses were examined, Shefali could not come. She also frankly states the circumstances under which her marriage took place with Basanta. She has examined one Ashutosh Das as D. W. 2, Ashutosh states that Basana Mukherjee of 45, Baghbazar Street was his friend. He attended his marriage ceremony. He identified Nandarani. Basanta married her in Kumartuli area of Calcutta about 18/20 years ago. His evidence fully supports the evidence of Nandarani. It is his further evidence that he was present at the wedding ceremony of Basanta and Nandarani and the children were all born out of the wedlock. They are all children of Basantababu, Nothing has been elicited in cross-examination from which it can be said that his evidence cannot be believed. It may be mentioned that in the voters' list Basanta has been described as husband of Nandarani. In the Ration Card Nandarani has been described as Basanta's wife. In the School Register of Rina one of the daughters Rina's father's name has been mentioned as Basanta Mukherjee.
6. Thus, on a consideration of the oral and documentary evidence and the legal position, we have no hesitation to hold that the learned Judge was quite right to find that Nandarani is Basanta's legally married wife and defendants Nos. 2 to 5 are Basanta's legitimate children and as such, he was right in declaring that the plaintiffs are co-sharers of the defendants in respect ofthe disputed premises 36, Nabin Sarkar Lane to the extent of undivided half share only. He was also right in rejecting the plaintiffs' other claims.
7. In the result, the appeal is, dismissed on contest with costs. The judgment and decree passed by the learned Judge are hereby affirmed.
Sudhindra Mohan, Guha, J.
8. I agree.