BABOO RAM AND ANOTHER Vs. KARMI

JUDGEMENT

(1.) This is defendant's second appeal against whom the suit for possession of the house, in dispute, was dismissed by the trial Court, but was decreed in appeal.

(2.) Mst. Karmi, the plaintiff-respondent, filed the suit on the allegations that the property, in dispute, belonged to Gonda who was her father. He died about ten years back. On his death, the plaintiff and his son Nama became the owners in equal shares. There was no other heir of Gonda. The said Nama returned from Canada about three years back and died about seven months prior to the filing of the suit without leaving any issue or his widow. She being the only heir of the deceased, became the owner of the whole of the property in dispute. Fifteen or sixteen days prior to the filing of the suit, Baboo Ram, defendant, forcibly took possession of the suit property in her absence and when he was asked to surrender its possession, he claimed that Mst. Kuldip Kaur, defendant No. 2, had mortgaged the property with him representing herself to be the widow of Nama, deceased. These facts were denied and it was alleged that defendant No. 2 had no right or title in the property and that she was not the widow of Nama. In fact, her earlier husband was alive and that in such a position, she could not have married Nama, deceased. The suit was contested on behalf of the defendants. It was denied that the plaintiff was the daughter of Gonda or the sister of Nama, deceased. It was pleaded that on the death of Nama, defendant No. 2 Kuldip Kaur succeeded to the suit property and, thus, she rightly mortgaged the same with Baboo Ram defendant. Kuldip Kaur, defendant No. 2 also claimed to be the legally wedded wife of Nama, deceased. The trial Court found that the plaintiff had failed to prove herself to be the daughter of Gonda, deceased, as alleged and that she had no right to file the present suit. It was further found that Kuldip Kaur, defendant, had become the owner of the suit property much before the suit was filed as she was the legally wedded wife of Nama, deceased. With these observations, the plaintiff's suit was dismissed. In appeal, the learned Addition District Judge reversed these findings of the trial Court and came to the conclusion that the plaintiff was the daughter of Gonda, deceased and that Kuldip Kaur, defendant, was not the legally wedded wife of Nama, deceased. Consequently he decreed the plaintiff's suit. Dissatisfied with the same, the defendants have come up in second appeal to this Court.

(3.) The main controversy between the parties in this appeal is whether Kuldip Kaur, defendant, was the legally wedded wife of Nama, deceased, or not. The trial Court found it in favour of the defendant whereas the lower appellate Court held that since the previous husband of Kuldip Kaur, defendant, named Mohan Singh, was alive, her marriage with Nama, was null and void. According to the lower appellate Court the said marriage with Nama, deceased, under these circumstances, could not be recognised and that it would be nothing more than a concubinage, which did not give any right to Kuldip Kaur, defendant, to inherit the property of Nama, deceased. It is not disputed that Kuldip Kaur had been living with Nama, deceased, during his life time and had also given birth to a child from his loins. The mere fact that the previous husband of Kuldip Kaur, defendant No. 2, was alive, could not make her marriage with Nama, deceased, invalid, as held by the lower appellate Court. The approach of the trail Court in this respect was correct when it held that in view of the provisions of Section 11 of the Hindu Marriage Act, the marriage between Kuldip Kaur, defendant, and Nama, deceased, could not be held to be void at the instance of a third person. Section 11 of the above said Act provides that any marriage solemnized after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. Nama, deceased never got his marriage with Kuldip Kaur, defendant, declared void during his life time; rather both Kuldip Kaur, defendant, and Nama, deceased, had been living together as husband and wife, and therefore, it could not be held in this suit that the marriage between Nama, deceased and Kuldip Kaur, defendant, was invalid as such. Once it is so held that Kuldip Kaur, defendant, was widow of Nama, deceased, and had given birth to a child from his loins, then, it is the common case of the parties that Nama having died after the coming into force of the Hindu Succession Act, the plaintiff had no right to succeed to his property.