JYOTI v. Gayaram Sahu

Judgment

1. The present Second Appeal has been preferred by the

3. appellants/defendants under Section 100 of the Code of Civil Procedure, 1908, assailing the impugned judgment and decree dated 05.10.2019 passed by the learned District Judge, Bemetara (C.G.) in Civil Appeal No. 18-A/2019 (Gayaram Sahu Vs. Dauram

Sahu & Ors.), whereby the learned First Appellate Court partly allowed the appeal and modified the judgment and decree dated

17.01.2019 passed by the learned Civil Judge, Class-I, Bemetara (C.G.) in Civil Suit No. 29A/2016, and declared the plaintiff to be entitled to 1/5th share in the suit property. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court. The plaintiff instituted a Civil suit against the defendants seeking declaration, partition and separate possession in respect of the lands described in Schedules ‘A’, ‘B’ and ‘C’, situated at Village Balsamund, Village Pendri and Village Katalbod, Tahsil Bemetara, District Bemetara (C.G.), pleading inter alia that the parties are governed by Hindu Mitakshara law and belong to a joint Hindu family. It is pleaded that defendant No.1 is the father of the plaintiff and had first married Champabai, from whom the plaintiff was born. During the subsistence of the said marriage, defendant No.1 allegedly contracted a second illegal marriage with defendant 3 No.2 Pyaribai, from whom defendant Nos.3 to 5 were born. The plaintiff contended that defendant No.2, being an illegal wife, and defendant Nos.3 to 5, being born out of such relationship, have no right, title or interest in the suit properties. It is further pleaded that the suit properties are ancestral properties which defendant No.1 had received from his father and through partition with his brothers. The plaintiff claimed that being the legitimate son of defendant No.1, he is entitled to half share in the ancestral properties. The plaintiff averred that on 13.02.2016 he demanded partition of his 1/2 share through village elders, but defendant No.1 refused to partition the properties. Thereafter, a legal notice was issued calling upon defendant No.1 to partition the suit lands and correct the revenue records, but the same was denied by defendant No.1. Hence, the plaintiff filed the present suit.

4. (i) The defendants/respondents No.1 to 5 filed their written statement denying the plaint averments. It was pleaded that the plaintiff and defendant Nos.1 to 5 are equally entitled to the suit properties and each has an equal share therein. It was further contended that defendant No.1 had earlier provided certain land to the plaintiff for his livelihood and permitted him to cultivate the same. The defendants stated that when the plaintiff demanded 1/2 share before the village Panchayat, defendant No.1 expressed that no further partition of the remaining lands would be effected during his lifetime. It was specifically denied that the plaintiff is entitled to 1/2 share as claimed. According to the 4 defendants, the suit properties are liable to be partitioned equally amongst the plaintiff and defendant Nos.1 to 5, each having 1/6th share, with consequential correction in the revenue records. On such pleadings, dismissal of the suit with costs was prayed for. (ii) Defendant No. 6 has remained ex parte and have not filed any written statement or counter-claim.

5. The learned trial Court, upon framing the necessary issues and appreciating the oral as well as documentary evidence available on record, held that the suit properties situated in Villages Balsamund, Pendri and Katalbod were ancestral properties of defendant No.1. The trial Court further found that the plaintiff is the son of defendant No.1 from his first wife, whereas defendant Nos.3 to 5 are the children born from defendant No.2. Taking into consideration the provisions contained in Section 16 of the Hindu Marriage Act, 1955, the trial Court held that the children born from a void or voidable marriage are entitled to legitimacy and to claim rights in the property of their parents. On such finding, it was concluded that defendant Nos.3 to 5 were also entitled to succeed to the suit properties along with the plaintiff. Consequently, the plaintiff was held not entitled to 1/2 share as claimed in the plaint, but only to 1/5th share in the suit properties. So far as the plaintiff’s claim for adjustment of five acres of land allegedly sold earlier by defendant No.1 towards his share was concerned, the learned trial Court held that no sale deed or reliable documentary evidence had been produced by the plaintiff in support of the said 5 plea. The evidence on record also indicated that the sale had been made for family necessities. Accordingly, the said claim was rejected. On the basis of the aforesaid findings, the suit was partly decreed and the plaintiff was declared owner of 1/5th share in the properties described in Schedules ‘A’, ‘B’ and ‘C’, with a further decree for partition and separate possession of the said share

6. Aggrieved by the said judgment and decree dated 17.01.2019 the plaintiff preferred a First Appeal under Section 96 of the Code of Civil Procedure before the learned First Appellate Court. The learned First Appellate Court, on re-appreciation of the entire evidence on record, modified the findings recorded by the learned Trial Court and partly allowed the appeal in favour of the plaintiff vide impugned judgment granting ½ share of the suit property to the plaintiff. Hence, the present appeal by the defendants.

7. Learned counsel for the appellants would submit that the impugned judgment and decree passed by the learned appellate Court is contrary to law and the material available on record, and the findings recorded therein are perverse. It is contended that the learned appellate Court has erred in modifying the well-reasoned findings of the learned trial Court without proper appreciation of the evidence on record. It is further submitted that the learned appellate Court was not justified in re-determining the shares of the parties in a manner contrary to the settled principles of law governing succession and partition. He further submits that the defendants are entitled for equal share in the ancestral property of

9. 6 the father. On these grounds, it is prayed that the impugned judgment and decree deserve to be set aside and the judgment of the learned trial Court be restored. I have heard learned counsel for the appellant on the question of admission, and the impugned judgments and decrees passed by the learned trial Court as also the learned First Appellate Court have been carefully examined. On the other hand, the principal contention advanced on behalf of the appellants that the children born from a void or voidable marriage are entitled to claim equal share in the ancestral/coparcenary property cannot be accepted in view of the settled position of law. It is now well established that though Section 16 of the Hindu Marriage Act, 1955 confers legitimacy upon a child born from a void or voidable marriage, such legitimacy is limited in its operation so far as property rights are concerned. A child so born is entitled to succeed only to the property of his or her parents, but does not acquire rights by birth in the ancestral coparcenary property as a coparcener in the joint Hindu family. In other words, such child cannot claim inheritance in ancestral/coparcenary property in the same manner as a coparcener, but can claim share only in the self-acquired or separate property of the parents, if any, or in the share that devolves upon the parent in accordance with law.

10. In the present case, the suit property having been found to be 7 ancestral/coparcenary in nature, the learned appellate Court rightly held that defendant Nos.3 to 5, being children born from the void/voidable marriage, could not claim coparcenary rights therein by birth so as to diminish the plaintiff’s lawful share. Therefore, the contention raised by the appellants on the basis of equal entitlement in ancestral property is misconceived and contrary to the settled legal position. Accordingly, the submissions advanced on behalf of the appellants deserve to be and are hereby rejected.

11. The first appellate Court recorded a finding that defendant No.1 had first contracted a valid marriage with Champabai, from which the plaintiff was born. During the subsistence of the said marriage and without any lawful dissolution thereof, defendant No.1 contracted a second marriage with defendant No.2 Pyaribai by performing customary “Chudi” ceremony. The learned appellate Court held that the said second marriage was void in the eyes of law and defendant Nos.3 to 5 were children born from the said void marriage. The learned first appellate Court further held that the learned trial Court had erred in extending equal coparcenary rights in the ancestral properties to defendant Nos.3 to 5 by relying upon Section 16 of the Hindu Marriage Act, 1955. It was held that though children born from a void or voidable marriage are treated as legitimate to a limited extent, they do not acquire rights by birth in ancestral/coparcenary property during the lifetime of the father, and their rights are confined to the property of their 8 parents in accordance with law. The appellate Court also found that the suit properties were ancestral properties which had come to defendant No.1 from his father and brothers in partition. Therefore, the plaintiff, being the son born from the valid marriage, acquired coparcenary rights therein along with defendant No.1 and was entitled to seek partition during the lifetime of his father. On such reasoning, the plaintiff was held entitled to 1/2 share in the suit properties instead of 1/5th share as determined by the learned trial Court. So far as the plea regarding adjustment of approximately five acres of land earlier sold by defendant No.1 was concerned, the learned first appellate Court affirmed the finding of the learned trial Court and held that the said sale was made for family necessities, including the plaintiff’s marriage and agricultural purposes, from which the plaintiff had also derived benefit. Consequently, the claim for adjustment of the said land exclusively against the share of defendant No.1 was rejected. Accordingly, the appeal was partly allowed and the judgment and decree of the learned trial Court were modified to the extent that the plaintiff was declared entitled to 1/2 share in the suit properties along with a decree for partition and separate possession thereof.

12. In Jinia Keotin & Ors. Vs. Kumar Sitaram Manjhi & Ors. reported in (2003) 1 SCC 730, the Supreme Court held that while engrafting a rule of fiction in Section 16 of the Act, the illegitimate children have become entitled to get share only in self-acquired 9 properties of their parents. The Court held as under :- "4...........Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.

5. So far as Section 16 of the Act is concerned, 10 though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non-obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, `any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants......."

13. The Supreme Court in the case of Bharatha Matha & Anr. Vs. R. 11 Vijaya Renganathan & Ors reported in AIR 2010 SC 2685 has held thus at para 27:-

27. Thus, it is evident that in such a fact-situation, a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties, if any.

14. The Supreme Court in the matter of Revanasiddappa And Anr Vs. Mallikarjun and Ors reported in 2023 (10) SCC 1 held in para 22:- “22. The frame of sub-section (3), however, indicates that the conferment of legitimacy will not confer upon the child rights in or to the property of a person other than the parents. Sub- section (3) implicitly recognises that the b child conferred with legitimacy by virtue of the provisions of sub-sections (1) and (2) would be entitled to rights in or to the property of the parents of the child. But the provision equally indicates that the conferment of legitimacy will not operate to confer rights in or to the property of persons who are not the parents of the child. This stipulation is, however, conditioned by the last part of sub-section (3) which provides that such a child would not have rights in or to the property of a person who is not a parent where but for the passing of the Act the child would have been incapable of possessing or acquiring such rights by reason of not being the legitimate child. This last part of sub-section (3), takes us 12 back to the position as it stood before the passing of the Act. If, but for the enactment of the provision the child would not have been capable of possessing or acquiring rights over the property of any person other than the parents by virtue of the "illegitimacy", the child will not have rights to or in the property of a third party (other than the parents).”

15. A careful analysis it is manifest that the First Appellate Court has correctly evaluated the evidence, giving due weightage to the admissions and the material facts, and has arrived at a conclusion consistent with law. The Appellate Court’s decision is based on proper appreciation of evidence and settled legal presumptions regarding the nature of transactions. The findings recorded by the learned First Appellate Court are just, proper, and based on a careful examination of evidence. The judgment and decree of the First Appellate Court do not suffer from any error, illegality, or perversity, and accordingly, there is no ground to interfere with the same under Section 100 of the Code of Civil Procedure.

16. At the outset, it is to be noted that the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is strictly confined to examination of substantial questions of law. Even in a case where the First Appellate Court has modified the findings recorded by the Trial Court, interference is permissible only when the findings of the First Appellate Court are shown to be perverse, based on no evidence, suffering from material 13 irregularity, or involving a substantial error of law affecting the rights of the parties. Unless such infirmities are demonstrated, the findings of fact recorded by the First Appellate Court are binding in Second Appeal.

17. Even otherwise, the scope of interference in a Second Appeal under Section 100 of the Code of Civil Procedure is extremely limited. Interference is permissible only when the appeal involves a substantial question of law. Findings of fact recorded by the Courts cannot be interfered with unless such findings are shown to be perverse, based on no evidence, or contrary to settled principles of law.

18. In the present case, the learned First Appellate Court, after due appreciation of the pleadings and evidence available on record, recorded findings that the plaintiff established his case. The Appellate Court has correctly evaluated the evidence and arrived at a conclusion consistent with law.

19. The questions sought to be raised in the present Second Appeal essentially relate to re-appreciation of evidence and challenge to the findings of fact recorded by the First Appellate Court. Such questions do not give rise to any substantial question of law within the meaning of Section 100 of the Code of Civil Procedure, unless it is shown that the findings are perverse or based on misreading of evidence.

20. Having heard learned counsel for the appellant and on perusal of 14 the record of the case, I find absolutely no merit in this appeal, involving no question of law much less substantial question of law within the meaning of Section 100 of the CPC. In my view, the judgment and decree passed by the learned First Appellate Court appears to be just, proper and legal. The findings recorded are based on proper appreciation of evidence available on record and there is no illegality or perversity in the same and it does not call for any interference.

21. Consequently, the Second Appeal fails and is hereby dismissed, resulting in upholding the judgment and decree of the First Appellate Court. Jyoti Sd/- (Bibhu Datta Guru) Judge