DEOBAI Vs. SONIBAI

JUDGEMENT

(1.) THIS is plaintiff's second appeal, arising out of the Judgment and decree dated 9 -8 -75 passed by the Additional District Judge, Rajgarh in Civil First Appeal No. 13 -A/75, thereby affirming the trial Court judgment and decree dated 31 -1 -75 passed by Civil Judge Class II Biora in C.O.S No. 123 -A/72.

(2.) THE plaintiff filed a suit for declaration of title and possession of a home and agricultural lands situated in Village Gindorehat as described in the Schedule 'A' and 'B' appended to the plaint. Plaintiff's father Daula had two sons. Ramlal and Girdhari, who inherited Daula's property on his death, As Girdhari died, and his daughter Kasubai, was married, it was Ramlal who came to be in possession, as sole owner. On the death of his wife Ramlal contracted Natra marriage with one Sonibai, as such marriage was permissible by custom, prevalent amongst the 'Ahir' community to which the parties belong. Ramlal also died in 1956, and Sonibai became the owner in possession. Her name was also mutated and recorded in the Revenue Records. Kasubai, the daughter of Girdhari, and niece of Ramlal was not recognised as heir to Ramlal. Sonibai sold a part of the agricultural land to Chhitar - Defendant No.2, as mentioned in para 4 of the plaint, the remaining is in plaintiff's possession as owner thereof It was also the plaintiff' case that Sonibai - Defendant No.1 also contracted Natra with one Laxman and was living with him as his wife since 'Abhay' Tratiya' of 1969 and on 4 -7 -71 admitted such relationship in presence of witnesses. Her contention is that as a result of the 'Natra' Sonibai was divested of her rights in the property left by Ramlal, even otherwise she (Sonibai) had only a limited right in the said property. She has, therefore, challenged Sonibai's right to alienate property (the agricultural land as well as the suit house). It my be noted that during pendency of the suit defendant No. 2 Chhitar died and his LRs. were brought on record who are respondent Nos.

(3.) THE trial Court framed as many as eight issues and tried the 8th issue "whether the suit does not disclose any cause of action accruing to the plaintiff'? as a preliminary issue and dismissed the suit. On appeal, the lower Appellate Court confirmed the trial Court's judgment and decree. Now, the plaintiff bas come in second appeal. There being no evidence nor was it necessary for decision on the preliminary issue, the appeal has to be decided on the sole question of law governing the rights of a Hindu widow, keeping in mind the pleadings of the parties. As stated above, 'Natra' marriage as a recognised and prevalent form of marriage having customary sanction amongst Ahirs has not been disputed by the defendants. Thus, the validity of marriage between Ramlal and Soni, after the death of Bhulibai Ramlal's wife can safely be assumed which is further aided and commented by Sec. 7 (1) of the Hindu Marriage Act, 1956.