The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.172 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Smt. Parvati @ Parvati Mohapatra and others -versus- …. Appellants Sadasiba Mohapatra(dead) others and …. Respondents Appeared in this case:- For Appellants For Respondents Appeared in this case:- : : Mr. S.D. Das, Senior Advocate assisted by Mr. M. Fardish, Advocate None CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 31.01.2024 / date of judgment : 28.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2.
Legal Reasoning
The appellants of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.07 of 1986 and they were the respondents before the 1st appellate court in the 1st appeal vide T.A. No.04 of 1992. 3. The respondents of this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.07 of 1986 and they were the // 2 // appellants before the 1st appellate court in the 1st appeal vide T.A. No.04 of 1992. The suit of the plaintiffs(those are the respondents in this 2nd appeal) vide T.S. No.07 of 1986 was a suit for recovery of possession. Sadasiba Mohapatra was originally the sole plaintiff in the suit vide T.S. No.7 of 1986. After his death, plaintiff nos.1 to 9 have been substituted in his place in that suit vide T.S. No.07 of 1986 as plaintiffs. 4. The case of the plaintiff Sadasiba Mohapatra before the trial court in the suit vide T.S. No.07 of 1986 was that, the defendant no.1 developed illicit intimacy with him six to seven years prior to the filing of the suit vide T.S. No.07 of 1986 and due to such intimacy, the plaintiff permitted the defendant no.1 to stay in his house. As per such permission of the plaintiff Sadasiba Mohapatra, the defendant no.1 and her children, i.e., defendant nos.2 to 4 stayed in the house of the plaintiff Sadasiba Mohapatra and since then till yet, they are staying in that house. When the plaintiff became old and sick, the defendants quarreled with him regularly, for which, he(plaintiff Sadasiba Mohapatra) asked the defendant no.1 to vacate his house (which is the suit house) in order to enable him (plaintiff) to live peacefully and to use the suit house for his own purposes. But, the defendant no.1 did not vacate the suit house, for which, he (plaintiff) Sadasiba Mohapatra issued a notice on 29.04.1985 // 3 // to the defendant no.1 requesting her to vacate the suit house since 15.05.1985, but, the defendant no.1 avoided to receive that notice. As the suit house exclusively belong to the plaintiff Sadasiba Mohapatra and the defendants have no interest in the same, then, for which, the occupation of the suit house by the defendants is purely unauthorized. As the defendants did not vacate the suit house in spite of repeated requests of the plaintiff, then, without getting any way, the plaintiff Sadasiba Mohapatra approached the civil court by filing the suit vide T.S. No.07 of 1986 against the defendants praying for recovery of possession of the suit house by evicting the defendants from the same and to direct the defendants to pay pendetelite and future damages as fixed by the court and as well as such other relief, to which, he (plaintiff Sadasiba Mohapatra) is entitled for, as per law and equity. 5. Having been noticed from the trial court in the suit vide T.S. No.07 of 1986, the defendants filed their joint written statement challenging the suit of the plaintiff denying the averments made by the plaintiff in his plaint with their specific stands that, the defendant no.1 is the wife of the plaintiff, as the plaintiff had married her (defendant no.1) 30 years back as per social custom. Since such marriage of defendant no.1 with plaintiff Sadasiba Mohapatra, they(Sadasiba Mohapatra and defendant no.1) were leading their conjugal life unitedly and out of their wedlock, the defendant nos.2, 3 and 4 have borne. As such, the defendant no.1 is the // 4 // wife of the plaintiff Sadasiba Mohapatra and defendant nos.2, 3 and 4 are the children of the plaintiff and defendant no.1. They (defendant no.1 and the plaintiff Sadasiba Mohapatra) were leading their normal conjugal lives till the year 1983. Late father of the plaintiff Sadasiba Mohapatra and their relatives were recognizing the defendant no.1 as the wife of the plaintiff Sadasiba Mohapatra and the suit house was gifted to the defendant no.1 by her husband, i.e., plaintiff Sadasiba Mohapatra after the birth of defendant no.2. Since then, the defendants are staying in the suit house as their own rights. Therefore, the substituted legal heirs of the deceased plaintiff Sadasiba Mohapatra, i.e., plaintiff nos.1 to 9 have no manner of right, title and interest in the suit house other than the defendants. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants). 6. Basing upon the aforesaid pleadings and matters in controversies between the parties altogether five numbers of issues were framed by the trial court and the said issues are:- I S S U E S i. Whether the plaintiff has any right, title or interest over the suit property? // 5 // ii. Whether the defendants are in continuous physical possession over the suit property and thereby acquired title? iii. Whether the suit is maintainable? iv. To what other relief, if any, the plaintiff is entitled? and v. Whether the suit has been under-valued and improper court fee has been paid for the relief? 7. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendants, the substituted legal heirs of the original plaintiff, i.e., plaintiff nos.1 to 9 examined two witnesses from their side including plaintiff no.2 as P.W.2 and relied upon series of documents on their behalf vide Exts.1 to 10. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined seven witnesses from their side including defendant nos.1 and 2 as D.Ws.7 and 6 and relied upon series of documents from their side vide Exts.A to R/1. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue nos.1 and 2 against the defendants and in favour of the plaintiffs, but whereas answered the issue nos.3 and 4 against the plaintiffs and in favour of the defendants, as issue no.5 was not pressed by the parties. // 6 // 9. Basing upon the findings and observations made by the trial court in issue nos.3 and 4 against the plaintiffs and in favour of the defendants, the trial court dismissed the suit of the plaintiffs vide T.S. No.07 of 1986 on contest against the defendants, but, without cost as per its judgment and decree dated 29.02.1992 and 07.03.1992 respectively assigning the reasons that, the plaintiff Sadasiba Mohapatra had married defendant no.1 in the year 1956 and the defendant nos.2, 3 and 4 have borne out of their wedlock, for which, the defendant nos.2, 3 and 4 are the children of Sadasiba Mohapatra through the defendant no.1 and as the suit house was the self acquired property of Sadasiba Mohapatra, for which, after the death of Sadasiba Mohapatra, the defendants have shares in the same and the suit house has not been partitioned between all the successors of Sadasiba Mohapatra and the defendants, for which, the defendants have right to reside and posses the suit house, therefore, the defendants cannot be evicted from the suit house. So, the plaintiffs are not entitled to get the decree of recovery of possession of the suit house against the defendants. 10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.07 of 1986 passed by the trial court as per its judgment and decree dated 29.02.1992 and 07.03.1992 respectively, they (plaintiffs) challenged the same by preferring the 1st appeal being the appellants vide T.A. No.04 of 1992 against the defendants by arraying them (defendants) as respondents. // 7 // 11. After hearing from both the sides, the 1st appellate court allowed the 1st appeal vide T.A. No.4 of 1992 of the plaintiffs on contest and set aside the judgment and decree of the dismissal of the suit of the plaintiffs vide T.S. No.07 of 1986 passed by the trial court and passed the judgment and decree of T.A. No.04 of 1992 on dated 12.05.1995 and 19.06.1995 respectively and decreed the suit vide T.S. No.07 of 1986 of the plaintiffs in part entitling the plaintiffs for recovery of possession of the suit house evicting the defendants or anybody claiming through them from the suit house directing them(defendants) to vacate the suit house within four months from the date of judgment, failing which, the plaintiffs would be at liberty to recover the possession of the suit house from the defendants through the process of court assigning the reasons that, the defendant no.1 is the 2nd wife of the original plaintiff Sadasiba Mohapatra, as the plaintiff no.1 is his first wife, for which, the marriage between the deceased Sadasiba Mohapatra and the defendant no.1 is an invalid marriage. Therefore, neither the defendant no.1 nor the defendant nos.2 to 4 has any right, title, interest and possession in the suit house as per law, as the suit house is the self acquired property of deceased Sadasiba Mohapatra. As, the defendant no.1 is not the legally married wife of Sadasiba Mohapatra and the defendants nos.2, 3 and 4 have borne through an invalid marriage, for which, they (defendant nos.2 to 4) // 8 // cannot take protection of Section 16 of the Hindu Marriage Act, 1955 for establishing their claim over the suit house. 12. On being aggrieved with the aforesaid judgment and decree dated 12.05.1995 and 19.06.1995 respectively passed by the 1st appellate court in T.A. No.04 of 1992 against the defendants in setting side the judgment and decree of the trial court passed in T.S. No.07 of 1986, they (defendants) challenged the same by preferring this 2nd appeal being the appellants against the plaintiffs by arraying them (plaintiffs) as respondents. 13. This 2nd appeal was admitted on formulation of the following substantial question of law, i.e.:- Whether the judgment and decree passed by the 1st appellate court in T.A. No.04 of 1992 reversing the judgment and decree of the dismissal of the suit of the plaintiff passed by the trial court in the suit vide T.S. No.07 of 1986, on the ground that, the children of the 2nd wife through invalid marriage with original plaintiff Sadasiba Mohapatra that, the defendants are not titled to get any interest in the suit house left by Sadasiba Mohapatra is sustainable under law? // 9 // 14. I have already heard from the learned counsel for the appellants(defendants) only, as none appeared from the side of the respondents(plaintiffs) to participate in the hearing of this 2nd appeal. 15. The right of the children through an invalid marriage in the properties left by their father like this suit/appeal at hand has already been clarified by the Apex Court in the Full Bench decision reported in 2023(4) CCC (S.C.)-64, 2023(3) CCC (S.C.)-281 and 2023(6) Supreme (S.C.) 420 : Revanasiddapa and others vrs. Mallikarjun and Others(decided on 01.09.2023)(Para-54) that, Hindu Marriage Act, 1955—Sections 11 read with Hindu Succession Act, 1956—“Section 16—Succession rights of child borne to parents, whose marriage is null and void. In terms of Sub-section(1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether, (i) such a child is born before or after the commencement of Amending Act, 1976. Where a voidable marriage has been annulled by a decree of nullity under Section 12, a child ‘begotten or conceived’ before the decree has been made, is deemed to be their legitimate child notwithstanding the decree. A child born from a voidable marriage, which has been annulled, such a child will have rights to or in property of parents and not in property of any other person. As a consequence of substitution of Section 6 in Hindu Succession Act, Rule of devolution by testamentary or intestate succession of interest of a deceased Hindu in property of a Joint Hindu family governed by Mitakshara law has been made the norm.(Para-54)” // 10 // Hindu Marriage Act, 1955—Sections— 11 and 16 read with Hindu Succession Act, 1956—Sections— 8 and 10— Succession rights of child born to parents whose marriage is null and void—In dividing property of an intestate in terms of Section 10 of Hindu Succession Act, 1956, no distinction can be made on the basis of such classification. Once such a child is deemed legitimate under Section 16 of the Hindu Marriage Act, 1955, such a construction shall also accord with provisions of Sub-section (3) of Section 16 of Hindu Marriage Act, 1955, which enunciates that conferment of legitimacy by Sub-section(1) or Sub-section(2) shall not confer on a such a child “any rights in or to the property of any person, other than the parents—Legislature has provided for ascertainment of share of deceased on a notional basis—Where deceased dies intestate, property would devolve in terms of Section 8 and distribution would be governed by Rules specified in Section 10.”(Para-39) 16. On application to the above, clarified propositions of law enunciated by the Apex Court in the ratio of the aforesaid Full Bench decision reported in 2023(4) CCC (S.C.)-64, 2023(3) CCC (S.C.)-281 and 2023(6) Supreme (S.C.) 420 : Revanasiddapa and others vrs. Mallikarjun and Others(decided on 01.09.2023), to this suit/appeal at hand, it is held that, even though, the defendant nos.2 to 4 are the children through an invalid marriage between the original plaintiff Sadasiba Mohapatra and defendant no.1, still then, they (defendant nos.2 to 4) are held under law as their legitimate children and they (defendant nos.2 to 4) have their rights under law to succeed the properties left by their father Sadasiba Mohapatra. 17. When the 1st appellate court has held in its judgment and decree passed in the 1st appeal vide T.A. No.04 of 1992 that, the defendant nos.2 to 4 being the children through an invalid marriage between the original // 11 // plaintiff Sadasiba Mohapatra and defendant no.1, they (defendant nos.2 to 4) are not entitled to succeed the suit house left by Sadasiba Mohapatra, then, in view of the above clarified propositions of law enunciated by the Apex Court in the ratio of the above Full Bench decision, the aforesaid judgment and decree passed by the 1st appellate court in T.A. No.04 of 1992 cannot be sustainable under law. Because, in view of the ratio of the above Full Bench decision of the Apex Court, the defendant nos.2 to 4 are held as the legitimate children of Sadasiba Mohapatra as per law. For which, they(defendant nos. 2 to 4) are the lawful successors of Late Sadasiba Mohapatra (who was the original plaintiff in the suit vide T.S. No.07 of 1986). Therefore, they(defendant nos.2 to 4) have succeeded to the suit house left by Sadasiba Mohapatra along with the other successors of the said Sadasiba Mohapatra. As such, they (defendant nos.2 to 4) are the co-owners of the suit house with the plaintiff nos.1 to 9. So, they (defendant nos.2 to 4) cannot be evicted from the suit house at the instance of the plaintiff nos.1 to 9, because, they (defendant nos.2 to 4) are also the owners of the suit house. Therefore, the judgment and decree passed by the 1st appellate court in T.A. No.04 of 1992 against all the defendants including the defendant nos.2 to 4 for their eviction from the suit house are not sustainable under law. // 12 // 18. As per the discussions and observations made above, when it is held that, the judgment and decree passed by the 1st appellate court in T.A. No.04 of 1992 reversing the judgment and decree of the dismissal of the suit passed by the trial court in T.S. No.07 of 1986 has become unsustainable under law, then at this juncture, there is justification under law for making interference with the same through this 2nd appeal filed by the appellants(defendants). Therefore, there is merit in this 2nd appeal of the appellants(defendants). The same must succeed. 19. In the result, the 2nd appeal filed by the appellants(defendants) is allowed on merit, but without cost. 20. The judgment and decree dated 12.05.1995 and 19.06.1995 respectively passed by the 1st appellate court in T.A. No.04 of 1992 are set aside. The judgment and decree dated 29.02.1992 and 07.03.1992 respectively passed by the trial court in T.S. No.07 of 1986 are confirmed. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 28th of February, 2024/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: Authentication Location: OHC, CUTTACK Date: 28-Feb-2024 17:11:33