Radha Krishna Gaonkar vs Hari Redkar

R.M. Borde, J.—In this appeal preferred by the original plaintiff, the appellant has challenged the concurrent findings recorded by the Courts below. The plaintiff instituted the suit against the defendants, claiming decree of eviction, permanent and mandatory injunctions, and for annulment of agreement. It is the case of the plaintiff that she is the wife of late Krishna Vithal Gaonkar, defendant No. 3. She claims to be the legally wedded wife of defendant no. 3 and by virtue of her marriage, according to her, she owns along with defendant No. 3, the property named "Bharad" situate at Padel, Bethora, Goa. According to the plaintiff, the defendant No. 1 by practising misrepresentation and by adopting fraudulent means, obtained signatures of defendant No. 3 on an agreement of sale, allegedly executed by defendant No. 3 in his favour in respect of the disputed property. The defendants No. 1 and 2, on the basis of the original agreement, have entered into possession. The plaintiff did not sign the agreement and, as such, according to the plaintiff, she is not bound by the agreement.

The suit has been contested by the original defendants No. 1 and 2, who have controverted the contentions raised by the plaintiff. Defendants No. 1 and 2 have questioned the legality of the marriage of the plaintiff with the defendant No. 3. According to defendants No. 1 and 2, the plaintiff is not the legally wedded wife of defendant No. 3 and, as such, does not have any entitlement in respect of the disputed property. The said defendants, in the alternative, have claimed that they, under a bonafide belief that the property belonged to defendant No. 3, have entered into the agreement and have been put in possession of the property and they claim that they are protected by Section 53-A of the Transfer of Property Act.

Defendant No. 3 has supported the claim of the plaintiff and prayed for passing of decree in favour of the plaintiff. It does appear that defendant No. 3 died during the pendency of the suit and his heirs, namely daughters were brought on record.

The plaintiff did not step into the witness box. However, her power of attorney has been examined on her behalf, who has put up the case of the plaintiff before the trial Court. Evidence was led by defendants No. 1 and 2 in support of their case.

The trial Court framed three issues. They are :

(1) Whether the plaintiff proves that she is the wife of defendant No. 3 ?

(2) Whether the plaintiff proves that the agreement dated 6.01.1984 was executed by false representation ?

(3) Whether the plaintiff proves that the Agreement dated 6.01.1984 is void as it was without her consent ?

The trial Court, on appreciation of the evidence led by the parties, answered all the issues in the negative and dismissed the suit presented by the plaintiff. The trial Court held that since the plaintiff failed to establish her marriage with the defendant No. 3, she cannot claim her entitlement to the property under Article 1119 of the Portuguese Civil Code.

Being aggrieved by the judgment and decree passed the trial Court, the plaintiff preferred an appeal being Regular Civil Appeal No. 50/2005 which came to be heard and disposed of by the IInd ad hoc Addl. District Judge, North Goa, Panaji on 28.10.2005. The appellate Court did not frame any point for consideration and proceeded to dismiss the appeal presented by the plaintiff. The first appellate Court reversed the findings recorded by the trial Court in respect of the marriage of the plaintiff with the defendant No. 3 and held that she has proved her case in respect of legality of her marriage with defendant No. 3 . The first appellate Court curiously did not consider the impact of provisions of Article 1119 of the Portuguese Civil Code and recorded a finding that issues No. 2 and 3 have been correctly decided by the trial Court.

At the stage of admission of the second appeal, this Court has framed the following substantial question of law :

"Whether the lower appellate Court ought to have allowed the appeal in terms of Article 1119 of Portuguese Civil Code when it came to the conclusion that the plaintiff is the wife of defendant No. 3, as she was not the party to the said agreement ? "

On perusal of the judgment delivered by the first appellate Court, I am of the view that the first appellate Court has fallen in error in not framing the points for determination, mandated under Order 41, Rule 31 of the Code of Civil Procedure. The first appellate Court, although recorded a finding that the plaintiff has proved her status as legally wedded wife of defendant No. 3, recorded a contradictory finding disallowing her claim in respect of the property in dispute. Once the first appellate Court records a finding that the plaintiff is a legally wedded wife of defendant No. 3, the consequence should follow that she would be entitled to claim the benefits under Article 1119 of the Portuguese Civil Code. Since the plaintiff is not a party to the agreement in question, defendants No. 1 and 2 cannot claim benefits under Section 53-A of the Transfer of Property Act. The first appellate Court has not properly appreciated the evidence placed on record by the parties before the trial Court. It is the duty of the first appellate Court to properly appreciate the evidence brought on record and record independent findings.

Another aspect of the matter is that the trial Court has committed an error in framing issue No. 1 and casting burden on the plaintiff as regards the legality of her marriage with defendant No. 3. The presumption shall always be in favour of the legality of the marriage and if the defendants No. 1 and 2 want to question the marital status of the plaintiff, the burden shifts on them to establish that the plaintiff is not legally wedded wife of the defendant No. 3. The first appellate Court has not considered this aspect of the matter. Even, otherwise, the judgment of the first appellate Court is not sustainable.

It would be appropriate to refer to the decision of this Court in the case of Shri Bernard B. Gomes Alias Peter G. Gomes and Others Vs. Smt. Prescilla Lopes E. Fernandes and Others, , in respect of the duty cast upon the appellate Court while rendering decision in an appeal. It has been laid down that:

"On a plain reading of said Rule, it is clear that the Judgment of the lower Appellate Court should necessarily disclose the points for determination and the decision on such points as well as the reasons for such decision. In other words, before arriving at a decision in an appeal, the Appellate Court has to find out what are the points for determination involved in the matter and thereupon proceed to decide the same and substantiate the same by giving reasons for the same. In this regard, as rightly submitted by the learned Advocate for the appellants, the learned Single Judge of this Court in the matter of Smt.Anita M. Harretto v. Abdul Wahid Sanullah (supra) has already held that when the procedural law of the land insists upon certain requirement to be complied with one has to understand the object and scope of the provision. The learned Single Judge has further held therein that merely asking the question as to whether the Judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of the legal provision contained in Order XLI, Rule 31 of the Civil Procedure Code."

For the reasons recorded above, I am of the considered view that the appeal deserves to be allowed and the matter needs to be remitted to the first appellate Court for taking decision afresh, in accordance with law.

The appeal is, thus, allowed. The judgment and decree under appeal passed by the First Appellate Court in Regular Civil Appeal No. 50/2005 is quashed and set aside and the matter stands remitted to the first appellate Court for deciding it afresh, in accordance with law.

It is needless to observe that the all contentions of the parties are kept open and the first appellate Court shall not be influenced by the observations made in this judgment.

Parties shall appear before the first appellate Court on 2nd December, 2014 at 10.00 a.m.

In the facts and circumstances of case, there shall be no order as to costs.