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Smart Summary

Concise, Structured Summary of the Opinion

Factual and Procedural Background

This is an appeal by defendant (Linga Mallik, defendant No. 1) against a confirming judgment of the Additional Subordinate Judge, Bolangir. The admitted owner of the suit land, one Ganda Mallik (since deceased), left behind his widow Badani (defendant No. 2) and two sons, Satva (also spelled Satya in the record) and Linga. The plaintiff, Ajodhva Mallikani, claimed to be the married second wife of Satva. According to the plaintiff, after Ganda's death the widow and sons continued to live jointly; Satva died while in that state of jointness; and the plaintiff filed a suit for partition of disputed lands measuring 7.999 acres into three equal shares and for allotment of one share to her.

The defendants pleaded (inter alia) that the plaintiff was not Satva's wife; that there had been a previous partition and the parties were in possession of respective shares; that Satva's first wife Tilottama had obtained a maintenance decree, following which Satva's entire share was sold in execution and purchased by one Parama Barik at public auction; that Parama remained in possession until 1960 and then sold the share to defendant No. 1 for Rs. 300/-, making defendant No. 1 the absolute owner.

The trial Court found that the plaintiff was the legally married second wife of Satva; that there had been no prior partition; that the auction purchase by Parama was benami for the joint family; and that Satva's share remained part of the joint family at his death. The trial court decreed partition as prayed. The Additional Subordinate Judge upheld those findings on appeal. Defendant No. 1 then filed the present appeal (a second appeal).

Legal Issues Presented

  1. Whether the plaintiff (Ajodhva Mallikani) is the legally married second wife of the deceased coparcener Satva.
  2. Whether, assuming a marriage ceremony occurred, the necessary ceremonies required under Hindu law (as prescribed by the Shastras, principally panigrahana and saptapadi or recognized customary equivalents) had been performed or may be presumed to have been performed.
  3. Whether a purchase at Court auction certified by the Court (the purchase by Parama Barik) that is alleged to be benami for the joint family is a ground for a suit and, if so, whether Section 66 of the Civil Procedure Code operates as a bar to such a suit.
  4. If the Court-auction purchase was benami for the joint family, whether a subsequent sale by the ostensible purchaser (Parama) in favour of defendant No. 1 (without consideration) must be treated as enuring for the benefit of the joint family and therefore remain subject to partition.

Arguments of the Parties

Appellant's (Defendant No. 1) Arguments

  • The plaintiff is not the wife of Satva; the courts below were improperly influenced by an electoral roll entry (Exhibit 1) describing the plaintiff as Satva's wife.
  • Even if a marriage ceremony occurred, there is no sufficient evidence that the necessary ceremonies constituting a valid Hindu marriage (panigrahana and saptapadi or their customary equivalents) were performed; therefore the courts below erred in holding the plaintiff to be the lawful wife.
  • The 1.82 acres sold in execution at Court auction were lawfully purchased and the sale certificate should be conclusive under Section 66 CPC; consequently the plaintiff cannot maintain a suit challenging that auction purchase as benami.

Plaintiff's (Respondent's) Arguments

  • The plaintiff was the legally married second wife of late Satva and is therefore entitled to one-third share in the joint family property.
  • The lands sold in execution (1.82 acres) were purchased at the Court auction with joint family funds as a benami purchase in Parama's name; Parama later transferred the lands to defendant No. 1 without consideration, so the sale deed to defendant No. 1 enures for the benefit of the joint family and the lands are subject to partition.
  • Evidence including witness testimony (P.W.1, P.W.2 and P.W.3) and documents (warrant of attachment, sale certificate, warrant of delivery, sale deed) support the claims of marriage and benami purchase.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Kirtan Sahu v. Thakur Sahu, (1972) 38 Cut LT 82 : AIR 1972 Orissa 158 (Full Bench) Electoral roll is a public document admissible in evidence; no need to prove the source of information or to call the preparer of the roll; admissible under Section 35 of the Evidence Act. The court accepted Exhibit 1 (electoral roll entry describing the plaintiff as Satya's wife) as admissible and relevant; no exception taken to its admission.
Mouji Lal v. Chandtabati Kumari, (1911) ILR 38 Cal 700 (Privy Council) Where a ceremony of marriage undoubtedly took place, a strong presumption applies that the forms and ceremonies necessary to constitute a valid marriage were performed. The court relied on this presumption to conclude that, having found a marriage ceremony occurred (supported by witness evidence), the necessary formalities may be presumed and the legality of the marriage stands unless rebutted.
P. Krishna Bhatta v. Mundila Ganapati Bhatta, AIR 1955 Mad 648 View that a suit by a coparcener is maintainable where a Court-auction purchase, though taken in a third party's name, was in fact made with joint family funds (i.e., such a claim does not fall within Section 66(1) CPC bar). Referenced as one of the decisions favouring the view that a claim that a Court-auction purchase was benami for the joint family is maintainable; the court accepted this approach (as upheld by the Supreme Court later).
Bajinath Das v. Bishen Devi, AIR 1921 All 185 Contrary view that a purchase by a managing member at auction is made on behalf of all members and therefore a suit challenging it as benami is barred by Section 66 CPC. Noted as representing the contrary position in the conflicting decisions; the conflict was held to be resolved by later Supreme Court authority.
Girijananandini Devi v. Bijendra Narain Choudhury, AIR 1967 SC 1124 Supreme Court holds that a claim that properties purchased at Court auction belonged to the joint family because they were purchased with joint family funds in the name of a benamidar does not fall within Section 66(1) CPC and therefore is not barred. The court applied this Supreme Court precedent to hold that Section 66 CPC did not bar the present suit, since the concurrent finding was that the auction purchase was benami for the joint family.

Court's Reasoning and Analysis

The court's analysis proceeds in two major strands: (A) the question of the plaintiff's status as Satva's married wife; and (B) the legal effect of the Court-auction purchase and subsequent transfers.

A. Marriage and proof of ceremonies

  1. Admissibility of Exhibit 1 (electoral roll): The court accepted that the electoral roll entry describing the plaintiff as Satya's wife is a public document admissible under Section 35 of the Evidence Act, guided by the Full Bench decision in Kirtan Sahu v. Thakur Sahu. Therefore the electoral roll could be considered relevant evidence without calling the preparer.
  2. Oral evidence: The courts below accepted testimony of three witnesses (P.W.3 the plaintiff and P.Ws.1 and 2). P.W.1 described the ceremonies observed: no Brahmin or barber officiated; a person known as Gani sprinkled rice on the heads, mango leaves and turmeric were tied to hands and legs, and the parties moved around the altar seven times.
  3. Legal presumption: Relying on the Privy Council authority in Mouji Lal v. Chandtabati Kumari, the court stated the well-established presumption that where a marriage ceremony in fact took place, it will be presumed that the necessary ceremonies required by Hindu law were also performed. It is for the challenger to rebut that presumption.
  4. Application of presumption: Given the concurrent finding of the courts below that the marriage took place, and given P.W.1's description of ceremonies, the court held that it could be presumed that all legal formalities were satisfied. Defendant No.1 did not place evidence to rebut this presumption. Therefore the finding that the plaintiff was the married wife of Satya could not be disturbed.

B. Court-auction purchase, Section 66 CPC and benami/joint family character

  1. Evidentiary findings: The record contained documents showing execution sale proceedings: Exhibit E (warrant of attachment), Exhibit H (sale certificate to Parama), Exhibit B (warrant of delivery to Parama), and Exhibit G (sale deed by Parama to defendant No.1 dated 12-05-1960). The courts below found that Parama purchased Satya's share at Court auction and that that purchase was benami for the joint family.
  2. Legal bar alleged under Section 66 CPC: The appellant argued Section 66 CPC barred the plaintiff's claim because Section 66 makes a certified purchase at Court conclusive and not open to suit on the ground that the purchase was made on behalf of the plaintiff or through someone through whom the plaintiff claims.
  3. Distinction and legislative purpose: The court analyzed Section 66 as a procedural bar designed to prevent challenges to Court-certified purchases by purchasers who might in effect be agents for judgment-debtors. However, the court recognized a significant distinction under Hindu Law: acquisitions made by a coparcener with joint family funds become joint family property by operation of law and are not mere private benami agreements.
  4. Conflicting High Court authorities: The court noted conflicting High Court views — Madras High Court (P. Krishna Bhatta) held such suits maintainable, Allahabad High Court (Bajinath Das) held otherwise — and identified that the Supreme Court in Girijananandini Devi v. Bijendra Narain Choudhury resolved the conflict in favour of the Madras view.
  5. Application of Supreme Court precedent: The court quoted the Supreme Court's principle that where the claim is that properties belonged to the joint family because purchased with joint family funds in the name of a benamidar, such a claim does not fall within Section 66(1). Applying that principle, together with the concurrent factual finding that the auction purchase was benami for the joint family, the court held Section 66 CPC did not bar the present suit.
  6. Effect of subsequent transfer: The lower appellate court further found that Parama transferred the lands to defendant No.1 without any consideration. On these facts the present court held the sale deed from Parama to defendant No.1 enures for the benefit of the joint family and therefore the property cannot be excluded from partition.

Holding and Implications

APPEAL DISMISSED.

Direct consequences for the parties:

  • The concurrent findings of the courts below that the plaintiff is the legally married second wife of Satva and that there was no prior partition were upheld.
  • The court held that the 1.82 acres purchased at Court auction by Parama were benami for the joint family; the subsequent sale by Parama to defendant No. 1 without consideration enured for the benefit of the joint family; accordingly those lands form part of the joint family property and are includible in partition.
  • The trial court's decree for partition in favour of the plaintiff (entitling her to a one-third share) was affirmed. The appeal is dismissed without costs of this Court.

Broader legal implications: The court relied on existing precedents (including a Supreme Court decision) to resolve the question whether Section 66 CPC bars a suit claiming that a Court-auction purchase was in fact a joint-family benami purchase. The opinion does not indicate that it sets any new precedent beyond applying settled authorities; its effect is to affirm the lower-court disposition in the particular factual matrix of this case.

If any specific element from the opinion was not recited above (for example, detailed witness testimony beyond what was cited in the judgment), that information was not available in the provided opinion.

Show full summary ...

    Linga Mallik v. Ajodhya Mallikani And Another

    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 Satva and Linga. The plaintiff Ajodhva Mallikani claims to be the mar-tied second wife of Satva. 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 Satva; 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 Satva Mallik instituted Title Suit 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 Satya's share in the disputed property in Court auction was Benaml for the joint family and that consequently Satya's share in the joint family 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 for 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 Mallik. The concurrent finding of the Courts below that the plaintiff is the married wife of Satva is assailed on two grounds, namely, that in arriving at the finding that a marriage between the plaintiff and Satva did take place, the Courts below were considerably influenced by Ext 1 which is an entry 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 entry 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 158) (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 fie electoral roll has to be examined in Court 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 Satya.

    3. 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 plaintiffs 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 Satva. 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 Ions 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 marriage. 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 all far seven times. With this the marriage ceremony was over.

    4. 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. Chandtabati 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 necesisam to constitute it a valid marriage.

    5. There is the concurrent finding of the Court below that the marriage had actually taken place and P.W 1 has given evidence about the ceremonies that were observed at the time of marriage. It can, therefore, be presumed that all the legal formalities and the necessary 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.

    6. 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 Tiloltama obtained a decree for maintenance against Satva 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 family 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 CPC 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 family which had purchased the 1.82 acres of land benami in the name of Parama. Section 66 of the CPC 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 suit to obtain a declaration that the name of 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.”

    7. 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 CPC has declared that this general rule shall not apply to execution sales held by the Court.

    8. The enactment of Section 66 of the CPC 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 obviously to check the practice of iudgment-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 ioint 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 coparcener 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 of the CPC 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 ensures for the benefit of the family. On this question there is a conflict of decisions. A Bench of the Madras High 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 Bajinath 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 be—half of the plaintiff. This conflict is now set at rest by the decision of the Supreme Court in Girijananandini Devi v. Biiendra 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 family. That is a finding which is binding on me in second appeal. In view of this finding. Section 66, 11 of the CPC 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.

    10. 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 end consequently the property covered by the Court auction purchase cannot be excluded from partition. The learned Courts below were, therefore, right in passing a decree for partition in famous of the plaintiff and directing that she should get a one-third share in the suit properties.

    11. In the result, the appeal falls and is dismissed, but. In the circum stances, without costs of this Court.

    12. Appeal dismissed.

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    Comments

    Linga Mallik v. Ajodhya Mallikani And Another
    (May 10, 1973)