GODAM ADINARAYANA Vs. BEEDILLI ABELU

JUDGEMENT

(1.) This Second Appeal is directed against the Judgment and Decree of the Subordinate Judge, Narasapur, who, on appeal, reversed the decision of the District Munsif, Bhimavaram, and decreed the plaintiffs' suit. The suit was for a declaration that the plaintiffs, as the heirs of deceased Samuel, were entitled to the suit property and for possession thereof. The first defendant was impleaded as a person who claimed to be the widow of deceased .Samuel. The second defendant is the niece of the first defendant in whose favour Samuel is claimed to have left a will of the suit property. The third defendant is an assignee of the property in suit from defendants 1 and 2. The third defendant was the main contestant. He resisted the suit on the ground that the first defendant was the lawfully wedded wife of deceased Samuel and that she was therefore the nearer heir than the plaintiffs. The other ground set up by him was that, deceased Samuel had left a will Exhibit B-2 in favour of the first defendant and her niece, the second defendant, under which the former obtained a life estate in the suit property and the latter the vested remainder. As both of them together sold the property to the third defendant under Exhibit B-3, the sale cannot be successfully impeached by the plaintiffs who have no right or title to the suit property. The trial Court went into two main questions: (i) as to whether the first defendant was married to Samuel ; and (ii) whether the will, Exhibit B-2, is true and genuine. On the first question, the trial Court, on a consideration ot the evidence placed betore it, thought that Samuel must have gone through some form of ceremony of marriage with the first defendant but that marriage could well have been vitiated on account of the circumstance that Samuel's first wife was alive at that time. In other words, the first Court held against the validity of the marriage of the first defendant with Samuel because the first defendant had not shown that at the time of their marriage Samuel's first wife was dead. On the question regarding the validity of the will, the trial Court came to the conclusion that the will was valid and genuine. The result of this- finding was that, the suit was dismissed. Aggrieved by this decision, the plaintiffs carried the matter in appeal to the Subordinate Judge, Narasapur. While confirming the finding of the trial Court on the question of validity of the marriage between the first defendant and deceased Samuel, the Subordinate Judge went further and held that in face there was no marriage at all between the first defendant and Samuel. On the question of the genuineness of the will, the lower appellate Court differed from the finding of the trial Court and held that the will was not genuine. This led the Court below to decree the plaintiffs' suit. The third defendant who purchased the suit property under Exhibit B-3 dated 31st August, 1957 has therefore come up in further appeal to this Court.

(2.) The main contention urged by Mr. Padmanabha Reddy on behalf of the appellant-third defendant is that, the lower appellate Court as well as the trial Court erred in placing on the first defendant the burden of showing that at the time of her marriage with deceased Samuel, the first wife of Samuel was dead. In support of this contention, the learned Counsel has placed reliance upon a judgment of a Division Bench of the Madras High Court reported in Greenwood v. Greenwood., I.L.R. (1946) Mad. 416 : (1945) 2 M.L.J. 389 : A.I.R. 1946 Mad. 65.

(3.) That was a case where an application was made under section 19 (4) of the Divorce Act for declaring a marriage to be a nullity. The ground for such declaration was that, at the time of the marriage the first wife of the male spouse was alive. In other words, that the second marriage was bigamous. In support of the challenge. to the validity of the marriage it was urged that the first wife was alive with in thirty years and that under section 107, Evidence Act, it was for the respondent to show that she was not heard of for a period of seven years and thac the presumption of her death was therefore available to the husband under section 108 of the Indian Evidence Act. This contention was repelled by the learned Judges mainly on the strength of the provisions of the Divorce Act. It was expressly pointed out that section 7 of the Indian Divorce Act states that the Courts shall in all suits and proceedings thereunder act and give relief on principles and rules whith, in their opinion, are as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief. Now, there is no presumption in English law similar to that embodied in section 107 of the Evidence Act and, therefore, under the English law it has to be proved strictly that on the date of the second marriage of the male spouse his first wife was alive, to enable the obtaining of a nullity decree. The other reason, as I already indicated, was the warding of section 19 (4) of the Indian Divorce Act itself which required in plain language that a decree for nullity can only be given on proof of the fact that the former husband or wife was living at the time of the second -marriage. In view of these considerations, the Division Bench of the Madras High Court came to the conclusion that there was no scope for the application of section 107 of the Evidence Act and that the matter had to be dealt with exclusively on the provisions of the Indian Divorce Act itself. This, however, is not the case here. We are not conecerned here with the provisions of the Indian Divorce Act.