BHAGA BAI Vs. MANGALI BAI

JUDGEMENT

(1.) THIS is plaintiff's appeal against the judgment of affirmance. Plaintiff filed the suit for declaration that she being the only legal heir of Ratiram is entitled to succeed to his property alone. It is admitted position that the plaintiff is the daughter of Ratiram from his first wife Dhania. According to the plaintiff, Ratiram had 5.24 hectares of land in village Palari in the district of Seoni. According to the plaintiff, defendent No. 1 Mangali Bai without solemnization of marriage started living with Ratiram after the death of the plaintiff's mother Dhania. According to the plaintiff, defendant No. 1 was earlier married to one Chhuttu alias Sukha Mehra and the marriage between Mangali and Chhuttu was never dissolved. According to the plaintiff as defendent No. 1 Mangali Bai is not legally married wife of Ratiram and the birth of defendant No. 2 Memwati has taken place as a result of illegal physical relationship between them she is not a legitimate daughter of Ratiram. Accordingly, it is the case of the plaintiff that defendants are not the legal heirs of Ratiram. Case of the plaintiff further is that without knowledge of the plaintiff, defendants got their names mutated in the revenue records and are attempting to sell the land. On the basis of aforesaid pleading, plaintiff prayed for declaration that she is the only heir of Ratiram and entitled to succeed to his property.

(2.) ACCORDING to defendant No. 1, Mangali Bai was earlier marrired to Chuttu, but immediately after marriage, Chood Chhutti took place and thereafter she married with Ratiram in the form of Pat. According to the defendants custom of Chhod Chhuti and Pat are prevalent in their society since time immemorial. According to the defendants as defendant No. 1 had married Ratiram after the death of his first wife her marriage with Ratiram is legal and the child, defendant No. 2 born out of the said marriage is also legitimate. Trial Court on analysis of the evidence held that defendant No. 1 married Ratiram after her Chhod Chhutti with her previous husband. Accordingly, the trial Court held that she is the legally married wife of Ratiram and defendant No. 2 is their legitimate daughter and accordingly dismissed the suit. However, the lower Appellate Court did not record any specific finding as to whether any Chhod Chhuti took place between defendant No. 1 and her previous husband, but on the basis of the material that defendant No. 1 and Ratia lived like husband and wife for about 35 years it has to be presumed that she married Ratia in the Pat form after Chhod Chhutti and consequently dismissed the appeal filed by the plaintiff. By order dt. 30th August, 1988 the appeal was admitted on the following substantial questions of law:

(3.) SHRI V.P. Verma appearing for the appellant submits that the lower Appellate Court committed error in holding that defendant No. 1 is the wife of Ratiram only on the presumption arising from long cohabitation although her previous husband was alive. It is relevant here to state that the trial Court has recorded a finding that Chhod Chhutti took place between defendant No. 1 and her previous husband and defendant No. 1 married Ratiram in the 'Pat' form. However, the lower appellate Court did not go into this question in detail but on legal presumption of long cohabitation in the knowledge of the society held that defendant No. 1 was the wife of Ratiram. Mr. Verma submits that in case defendant No. 1 has married Ratiram, without divorce, long cohabitation shall not raise a presumption of the status of parties as husband and wife. In that view of the matter it is apt to consider whether Chhod Chhutti took place between defendant No. 1 and Chhuttu. From the evidence of P.W. 2 Chhuttu the previous husband of defendant No. 1, defendant No. 1 Mangali Bai (D.W.1) and Nirbhu (D.W.2), it is obvious that Panchayat was held for 'Chhod Chhutti'. According to the plaintiff, even before Chhod Chhutti defendant No. 1 has started living with Ratiram whereas, according to the defendants only after Chhod Chhutti she performed the marriage in the Pat form with Ratiram and started living with him. P.W.2 Nirbhu has stated in the Examination -in -Chief that after Chhod Chhutti, defendant No. 1 married Ratiram in Pat form. However, in the cross -examination he has stated that Mangali Bai stayed with Ratiram (Ratia Ke pas baith gai thee) before Chhod Chhutti. However, this witness was not cross -examined by the defendants that defendant No. 1 married Ratia in the Pat form after Chhod Chhutti. In that view of the matter evidence of P.W.2 that she stayed with Ratia even before Chhoa Chhutti is of no consequence. The previous husband of defendant No. 1 was examined and he has admitted that his wife (defendant No. 1) was not living with him for the last 40 years and living with some other person and he has not taken any action since then. He has further admitted that he has also married a second lady. It has further come in evidence that defendant No. 1 has given birth on account of marriage with Ratia 5 -6 children. In my opinion, husband although knowing that his wife has married and making no protest and in the background of the material show that her marriage had been dissolved. Reference in this connection can be made to a judgment of this Court in the case of Rewaram Balvant Khati and Anr. Vs. Ramratan Balwant Khatai and Ors. A.I.R. 1963 M.P. 160, Wherein it has been held as follows - 9. In the present case the evidence on record clearly indicated that amongst the Khatis dissolution of marriage can take place as also re -marriage. In these state of things every presumption will be made in favour of the validity of the marriage. It will be presumed that there had been proper dissolution of marriage between Kunwarbai and her former husband and that a marriage had taken place between Kunwarbai and Blawant by means of a Natra form of marriage. The view taken by the Courts below regarding the legitimacy of the defendants therefore cannot be assailed.