RSA Nc11730f1986 v. Manglaand ot hers

He furt her st at edt hat t he defendant sNo 2 t o 10 are t he sons and 1 J 1 0 CD Z 2 c8 Z Llm of Am ar Chand and Sart i defendant sNo 11 t o 12 are t he sist ers of t he plaint iffAft er t he deat h of his brot herHira on 27A 1979 defendant sNo l 5 and 8 t o 10 got a m ut at ionsanct ionedwit h respectt o t he suit propert y in t heir favour illegallywrong againstfact s and not bindingupon him being upon fraud and I n fact t hey had no concem wit h t he propert yof Hira as t heywere widow and son and of Am ar Chand The Collect or also wronglyaffirm ed t he order of t he Assist ant Collect or which is also bad ln t he eyes oflaw Defendant No11 Sarupiadm it t ed t he claim of t he plaint iff However defendant sNo 1 5 8 t o 10 cont est edt he case and allegedt hat defendantNo 1 was widow of Hira and defendant sNo and 8 t o 10 were son and of Hira and defendantNo1 So t he m ut at ionhad been properlysanct ioned in t heir favour Theyalso allegedt hat Sart i was also called by t he nam e of Manbhari Denyingot her averm ent s t heyprayedor dism issaloft he suit Followingissueswere fram edl 1Whet her plaint iffilS a coowner in possessiont o t he ext ent of5112 sharein t he suit land as alleged2OPP 2 Whet her t he m ut at ion No 1174 dat ed 2911 1978 is null and void againstfact s and not bindingon t he plaint iffand on t he profonnadefendant sas alleged2OPP 3 Whet her defendant Nol 1S widow and defendant sNo 5 son and daught ersof deceasedHira and are of Hira deceased as alleged2 JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh and 8 t o 10 are only legal OPP 99 RSAN011730f1986 3 00 I l 4 Whet hert he plaint iffhas no locus st andi t o Ole t he suit 2 OPD 5 Whet her t he suit is not m aint ainable in t he present OPD 6 Whet her t he plaint iffis est oppedfrom filingt he presentsuit by his act and conduct 7 OPD 7 Whet her t he defendant sare ent it led t o specialcost s2OPD 8 Relief Bot h t he part ieshave led t heir respect iveevidence on t he aforesaidissues A8er perusalof t he evidence and hearingt he learned counsel for t he part iest he learned t rial Court dism issed SUlt of t he plaint iffvide j udgm entand decreedat ed 1121982a Feelingdissat isfied wit h t he j udgm ent and decree dat ed 1 21982 t he preferredappealbefore t he First Appellat e Court The said appealwas heard and accept edby Shri NJainDist rict JudgeNam aul vide j udgm entand decree dat ed 1A 1986 Feelingdissat isfled wit h t he j udgm entand decree dat ed 1A1986 passedby Shri N1CJain learned Dist rict Judge Nam aul have preferredt hepresentregularsecondappeal I have heard leam ed counsel for t he part iesand have gone t hrought he recordsoft he case wit h t heir help Learned counsel for t he appellanthas subinit t edt hat case oft he plaint iffas set fort h in t he plaintis t hatHira Singhwas unm arriedand died issueless The First Appellat eCourt has givena Ondingof fact t hat Sart i 1 0 D I Z Lr I c25 m 7 Z r ent ered int o karewa m arriagewit h Hira and Sat bir Krishana Munni and Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh Bedo are t he children of Salappellantfrom t he loins of Hira Thus JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document t he 400 1 RSAN 1173 0f1986 4 1 C 0 0 Z 2 I c8 am 7 Z Ll 8ndingrecorded by t he t he First Appellat eCourt t hat t here was m arnage bet weenHira and Sart i is wit hout any basis The t by bot h t he Court s below t hat Sat bir Krishana Munni and Bedo are t he children ofHira Oom t heunion ofHira and Sart i is wrong That flndingis result ed due t o t he evidence on t he flle Bot h t he Court s below have ignoredt he evidence charact er ExD3 is t he birt h cert ificat eof t he son from Hira ExD4 1S t he dischargecert ificat e of Hira from t he I ndian arm y From t he perusalof t he said docum ent s it 1S cryst alclear t hat Manbhari alias Sart i is t he legallywedded wife ofHira Sm t uj ani DWl9 real Slst er ofHira has st at edon oat h t hat Manbhari is t he legallywedded wife ofHira and four children have born out of t he wedlock of Hira and Sani nam ely Sat bir Krishana Munni and Bedo Sart i has appearedas her own wit ness as DW2 Sart i has also exam ined her real brot her Risal Singhwho has also deposedabout t he of Sart i wit h Hira and about t heir children DW4 Sheo Narain has also st at ed t hat Sart i lS t he niece of t his wit ness and has m arried t o Hira and also deposedabout t heir DW5 Siri Chand has also support edt he case oft he defendant Learned counsel for t he appellanthas hI rt her subm it t edt hat bot h t he Court s below have not consideredt he fact t hat illegit im at echildren ofvoid and voidable m arriageare ent it led t o inherit anceoft he parent s The inherit ance of Hira 1S 111 quest ionSat bir is t he son Krishna Munni Bedo are t he daught ersof Hira So t heyalongwit h Sart i are ent it led t o Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 401 RSA No11730f1986 5 inherit anceof Hira Learned counsel for t he appellanthas furt her t hat sim plicit ersuit for declarat ion wit hout seekingt he relief of possession1S not m aint ainable Bot h t he Court s below have not considered t his aspectof t he case Learned counsel for t he appellanthas furt her subm it t edt hatt he First Appellat eCourt has m isreadt he evidence on t he file I n supportof his case leam ed counsel for t he relied upon aut horit ies Hero Vinot h I Minorl VS Sesham m al l200615 Suprem e Court Cases 545 and Rat t an Dev VS Pasam Devi 1200217 Suprem eCourt Cases 441 Learned counsel for t he rt her subm it t ed t hat followingsubst ant ial quest ionsof law arise in t his case 1Whet her Appellat eCourt based upon sust ainablein t he eyes of law 2 and decree passedbyt he Lower ofevidence1S 2 Whet her in Vlew t he SpecificRelief Act sim plicit erSUit for declarat ion wit hout seekingt he relief of possessionis m aint ainable of Sect ion 34 of 3 Whet her t he Lower Appellat eCourt could have decreed t he wit hout set t ingaside t he SUit of flndingsrecordedbyt het rial Court t he t he a long periodwit h Hira Singhgave birt h t o four Whet her sufficient children out oft hat cohabit at ionwould be consideredt o be 111t he absence of dissolut ion of her wife of Hira even m arriagewit h Am ar Singh who had lived for I n replyt o t he above not ed subm ission learned counsel for t he 1 t X 0 t I I Z t c8 Z respondenthas support edt he j udgm entand decree of t he First Appeilat e Court I t is subm it t ed t hat t here 1S findingof fact recorded by bot h t he Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 402 RSA No11730f1986 Court s below t hat Sart i is not t he legallywedded wife and t hat Sat bir SinghKrishana Muni and Bedo are t he illegit im at echildren of Hira I t is subm it t edt hat t hought he case of t he is t hat Hira was unm arried but in view of t he well reasoned flndingof recorded by t he First Appellat eCourt t he t he plaint iff cannot be challengedin t he regularsecondappeal I t is furt her subm it t edt hat plaint iffin para Nol of t he plaint pleadedt hat suit propert ywas j ointHindu fam ilypropert yof deceased Hira his brot her Am ar Chand and plaint iffMangla The cont ent s of para No l have been adm it t ed So t he nat ure of t he propert yas j oint Hindu fam ilycoparcenary propert yhas been adm it t ed by t he defendant s A fact adm it t edneed not t o be proved Since Sat birKrishanaMunni and Bedo have been held aut horit yJinia t o be illegit im at echildren of Hira and as such in view of Keot in and ot hers VS Kum ar Sit aram Manihi and ot hers 1200311Suprem eCourt Cases 730t heyare not ent it led t o inherit t he propert yof Hira as t he propert yis j oint Hindu fam ilycoparcenary 0 I D Z 2 t I 025 a Z Qm proper I have given m y t hought fulconsiderat ion t o t he rival subm issionsm adebybot h t he learnedcounsel for t hepart ies The m ain cont roversyin t he presentlis is whet her Sart i is t he I egallywedded wife of Hira and t hat Sat bir Krishana Munni and Bedo are t he legit im at echildren of Hira and Sart i 2 Bot h t he Court s below have ret urneda flndingof t he fact t hat Sart i lS not t he legallywedded wife of Hira and respondentNosl t o 4 are illegit im at echildren ofHira and Sart i That beinga findingoffact cannot be int erferred The First Appellat eCourt Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 403 RSAN011730f1986 7 has dealt in all t he evidence on t he file The m ain t he is on t he t est im onyof real sist er of Hira ie DH Sm t Suj ani This wit ness has st at ed t hat Am ar Chand and Sart i were m auied and five children have born out of t his wedlock consist ingof t hree sons and t wo She has furt her deposedt hat about 25 years ago her brot her Am ar Chand had left t he house due t o his m ent al ill funct ion Her st at em ent was recordedon 5111981 So we go back by25 years in t hat Clrcum st ance Am ar Chand left t he house in t he year 1956 This Wit ness furt her st at ed t hat 34 years t hereaft er Sart i has ent ered int o Karewa m arriagewit h Hira So accordingt o her st at em ent t he karewa of Hira and Sart i has t aken placein t he year 195960 AD ie afler t he enforcem entof 0 0 I D I Z Hindu Succession Act I t is nobodyscase t hat Sart i get divorce from Am ar C3 Chand prior t o m arriagewit h Hira So 111 t hese circum st ances t he I a Pl Z docum ent aryevidence Ex4 not helpt he case of t he appellantt o prove t he fact t hat m arriageof Sart i wit h Hira was legal as t he said docum entsim plyprovedt hat Manbhari has been shown as wife of Hira I t does not m ent ion about t he validit yof t he said m arriageThe findingof bot h t he Court s below t o t he effect t hat Krishana Munni and Bedo are t he illegit im at eson and Sat bir of Sart i and Hira t hus st andsprovedfrom t he evidence producedby Sart i herselt So I have no hesit at ion 111 holdingt hat bot h t he Court s below have not com m it t edany error t o arnve at t he conclusion t hat Sart i is not t he legally wedded wife of Hira and t hat Sat bir Krishana Munni and Bedo Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal has read Exl7 PHHC, Chandigarh children ofHira and Sart i No doubt t he First Appellat eCourt as birt h cert ificat e of Dharam Pal but 111 fact t he said JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 404 RSAN011730f1986 S 8 docum entis a deat h cert iflcat e of Dharam Pal son of does not m akeany difference so far as t he st at us of m arriage Sart iis concerned Anot her evidence which leads t owards t he fact t hat m arriagebet ween Sart i and Hira was not valid are t he docum ent sExP 4 and ExD3 From t he perusalof ExlO it is revealed t hat a son was born t o Hira on 281958 t hat However from t he perusalof ExP4 is revealed a born t o Am ar Chand on 25 1960 So from t hese docum ent s it is clear t hat Sart i gave a birt h t o t he son of Am ar Chand on 251960 and priort o t hat a son has alreadybom t o her on 281958 Hira The counsel for t he appellantcould not pointout any ot her evidence which has been m isread and by bot h t he Court s below regarding ofSart i and Hira Anot her obj ect ionhas been t aken by t he counsels for t he appellantt hat wit hout set t ingasidet he findingof t he t rial Court t he appeal could not be accept edThat argum entis also wit hout any subst ance I n t he findingof of Hira and Sart i has been affirm ed byt he First Appellat eCourt The only which now t o be det erm inedis regardingSect ion 16 oft he Hindu MarriageAct I n order t o properlyappreciat et he said cont ent ion t he relevant sect ion is reproducedas under 16 Legit im acyofchildren ofvoid and voidable m arriagese 6l9 t hat m arriageis null and void under 1 0 0 I CD Z 2 c8 Z Qm Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh sect lOI l 11 any child of such m arriagewho would have been legit im at eif t he m arriagehad been valid shall be legit im at e JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 405 RSANo 1173 of 1986 S whet hersuch child is born beforeor com m encem ent of t he MarriageLaws Act 1976 668of 197693 andwhet her or not a decreeofnullit yis grant edin respectof t hatm arriageunder t his Act and whet her or not t he m aniage1S heldt o be void ot herwiset han on a pet it ionunder t his Act 629Where a decreeof nullit yis grant edin respectof a voidable under sect ion 12 any child begot t enor conceived beforet he decree is m ade who would have been t he legit im at e child oft hepart iest o t he m arriageifat t he dat e ofdecree it had dissolved inst eadof beingannulled shall be deem edt o bet heir legit im at echild t he decreeof nullit y 639Not hingcont ainedin sulsect ion 61Jor sulsect ion 629shall be const rued as conferringupon any child of a m arriagewhich null and void 1S or which is annulled by a decree of nullit y undersect ion 12 any right sin ort o t hepropert yof any persot ot her t han t he parent sin any case where but for t he passingof t his Act such child would have been incapableof acquiringany such right sby reason of his not beingt he legit im at echild ofhis parent s From readingof Sect ion 16 clause 619and 629of t he Hindu MarriageAct it is clear t hat illegit im at echildren are ent it led t o inherit t he propert yof t he parent sas legit im at echildren The t rial Court by applying t he said principlesdism issed t he SUit of t he plaint iff However t he First m t 0 I 0 I Z Sr L I c8 m Z C1 Appellat eCourt byapplyingorder 16 Rule 3 CPC hasaccept edt he appeal The plaint iffin para No l of t he plainthas pleadedt hat suit Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 406 RSA No11730f1986 10 1 was j ointHindu fam ilypropert yofHira and his t wo brot hers That fact has been adm it t ed in t he writ t en st at em ent A fact adm it t ed in t he writ t en st at em ent need not t o be provedHowever t here is observat ion of t his Court in one case t hat if t he plaint iffallegedt hat suit propert yis j oint Hindu Fam ilyCoparcenarypropert yand t hat fact is denied in t he writ t en st at em ent and in case t he defendant while appearingas his own wit ness adm it t ed t he nat ure of t he propert yas coparcenary propert yin t hat case plaint iffhas t o prove t he nat ure of t he propert yas j oint Hindu Fam ily propert y irrespect iveof adm ission of t he defendant s However t he fact s of t he presentcase are different as t he plaint iffhas pleadedt hatpropert ywas j ointHindu fam ilypropert yand t hat fact has been adm it t ed in t he writ t en st at em ent by t he cont est ing So t he law regardingcoparcenary propert yhas been set t led by t he Apex Court in aut horit yJinia Keot in and ot hers case lprall t hat aut horit y it has been held t hat children born out ofvoid and voidable m arriageare not ent it led for sharein j ointHindu Fam ily propert y So in t hese circum st ances t he illegit im at echildren of Hira are not ent it led for inherit ancein view oft he said aut horit y Anot her obj ect ionhas been t aken byt he learned counsel for t he appellantt o t he effect t hat a sim piicit ersuit for declarat ion 1S not m aint ainablein view ofSect ion 34 oft he Specic ReliefAct However t hat obj ect ioncannot be accept edas t he case of t he plaint iffnow respondent1S t hatplaint iffisowner in possessionoft he suit propert ybeinga cosharer and 1 0 0 Z t X c8 Z as 5112 share in t he whole khat t a Here t he quest ionis only regardingt he share of t he plaint iffwhet her it is 113 or 5112 share Everycosharer Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 407 RSA No11730f1986 11 would be deem ed t o be in of whole of t he land t o t he j oint 1 khat t a So t he above said obj ect ionalso cannot be m aint ained I n view of t he above discussion all t he subst ant ialquest ionsof law m ent ionedabove st and det erm inedagainstt he appellant t heappealis wit hout any m erit and t he sam e st andsdism issed A copy of t his j udgm entbe sent t o t he t rial Court for st rict com pliance Gl4 2010 Sv 1 6I CCPURI 9 JUDGE m 0 0 t Z 2 I c8 Va2 Z r1 l Bat ra Am it Sh. Charanj it Bat ra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document