- (1.) THIS is a plaintiff's appeal arising out of a suit for possession and recovery of damages from the defen dants. The plaintiffs alleged that the house in suit was owned by her husband M. P. Chatterji. The marriage of the plaintiff No. 1 with M. P. Chatterji was performed under the provisions of the Special Mar riage Act, 1872 and out of this wedlock the plaintiffs Nos. 2 to 4 were born. Subse quently M. P. Chatterji developed illicit connections with the defendant No. 1 and both of them started living in a separate house. The defendants Nos. 2 to 6 are the sons of the defendant No. 1, The plaintiff contended that the defendant No. 1 was not legally married with M. P. Chatterji and M. P. Chatterji died in the year 1959 and the plaintiffs claimed themselves to be his heirs and legal representatives. The defen dants reside on the first floor of the house which was purchased by M. P. Chatterji and the plaintiffs have sought for their eviq-tion therefrom.
(2.) THE suit was contested by the defendants. They alleged that plaintiff No. 1 was a legally wedded wife of late M. P. Chatterji. On the other hand, the de fendant No. 1 was not (sic) his legally wed ded wife and as such the defendants being the heirs and legal representatives of M. P. Chatterji have right, title and interest in his property including the house in suit. Consequently, it was pleaded that the plain tiffs were not entitled to seek the eviction of the defendants. They also pleaded that a settlement had taken place between the parties to the suit and in that view of the matter as well the suit was not maintain able. The trial Court, on a considera tion of the evidence, found that the plain tiff No. 1 was married to M. P. Chatterji and that marriage was performed under the provisions of Special Marriage Act, 1872 and that the plaintiffs Nos. 2 to 4 are the sons and daughters of late M. P. Chatterji. The trial Court also held that the defendant No. 1 was also married to M. P. Chatterji according to Hindu rites and her marriage was valid. Consequently it was held that defendants Nos. 2 to 6 are the legitimate sons and daughters of M. P. Chatterjee. It was however, held that no settlement be tween the parties, as pleaded in the written statement, took place between the parties. At the same time it was held that the de fendants had share in the house in dispute and that plaintiffs were not entitled to any damages or to the relief of ejectment as both the parties to the suit were co-owners. The suit was accordingly dismissed. The plaintiffs thereupon filed an appeal. The ap pellate Court below concurring with the findings recorded by the trial Court dis missed the appeal. The plaintiffs have now come to this Court in second appeal.
(3.) THE learned Counsel for the plaintiff contended that the marriage of M. P. Chatterji with the plaintiff No. 1 having been performed under the provisions of the Special Marriage Act 1872. M. P. Chatterji was prohibited from marrying the defen dant No. 1 during the lifetime of his first wife, namely, the plaintiff No. 1, in view of Section 16 of the Special Marriage Act. He argued that under Section 16 of the said Act a person marrying under this Act. who during the lifetime of his wife, con tracts another marriage was subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of his wife. As M. P. Chatterji married the de fendant No. 1 during the lifetime of the plaintiff No. 1 he committed an offence under Section 16 of the Act. The act of marrying being an offence was thus prohi bited by law and as such the marriage of M. P. Chatterji with Smt. Kamla Banerji was void. It was argued on behalf of the appel lants that an act which is an offence is ille gal and prohibited by law. The act of mar- rying again during the lifetime of the plain tiff No. 1 being an offence was illegal and unlawful and as such the marriage of M. P. Chatterji with Smt. Kamla Banerji was void. She therefore, was not entitled to inherit the properties left by M. P. Chatterji. I find no force in this contention. Section 16 of the Special Marriage Act of 1872 is as follows:-- "Every person married under this Act who during the lifetime of his or her wife or husband, contracts any other marriage, shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife, whatever may be the religion which he or she professed at the time of such second marriage." ;