ARUN PALLI, J. - (1.) SUIT filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 04.08.2011. Appeal preferred against the said decree failed and was accordingly dismissed vide judgment and decree dated 24.01.2012. That is how, the plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
(2.) IN short, in a suit filed by the plaintiff, he pleaded that Radha Krishan -defendant was married to his sister namely Bhagti Devi. They had no issue. In the year 1982, defendant divorced Bhagti Devi and remarried Sharda Rani. Thereafter, Bhagti Devi started living with the plaintiff and declared him to be her only legal heir. It is averred that the plot in question was purchased by the plaintiff and Bhagti Devi vide sale deed dated 15.03.1998 and they owned the same to the extent of 2/5th and 3/5th share, respectively. Plaintiff had constructed a residential house over the said plot. Bhagti Devi died on 29.02.2000. Since late Bhagti Devi had divorced the defendant and he had remarried Smt.Sharda Rani, the plaintiff did not get the estate of Bhagti Devi mutated in his name. However, on 15.02.2008, the defendant fraudulently got the suit property mutated in his name and thus the suit. In defence, it was pleaded, inter alia, that the defendant never divorced Bhagti Devi. As no issue was born out of the wedlock of defendant and Bhagti Devi, latter forced the defendant to solemnize a second marriage. It was with the consent of Bhagti Devi, second marriage between the defendant and Smt.Sharda Rani was performed. Bhagti Devi had even executed a Will dated 04.12.1999 in favour of the defendant with regard to the suit property. Consequently, the suit property was mutated in his name and is so reflected in the record of rights.
(3.) ON an analysis of the matter in issue and the evidence on record, trial Court had arrived at a conclusion that there indeed existed no decree of divorce between Bhagti Devi and defendant. Further, plaintiff had failed to prove that there was any custom governing the parties in relation to divorce by custom. No document to substantiate the alleged divorce was placed on record. That being so, it was observed that the plaintiff had failed to prove that the marriage between Bhagti Devi and defendant Radha Krishan was ever dissolved. Thus, Bhagti Devi was wife of Radha Krishan. Even though, Radha Krishan had contracted a second marriage while his wife was still alive, it was the second marriage which was invalid. Second marriage by Radha Krishan neither divest him of his right to succeed to the share of his late wife Bhagti Devi nor it entitled the plaintiff to succeed to her estate. It was observed that Bhagti Devi had even executed a Will Mark D1, wherein, she had specifically stated that her property would be inherited by her husband. The said Will was executed on 04.12.1999 post second marriage by the defendant. It was observed that even though, the said Will was only a marked document, yet, it corroborated the factum of acknowledgment of defendant Radha Krishan as husband of Bhagti Devi. That being so, plaintiff being a Class -II heir of late Bhagti Devi was not entitled to succeed to her estate. Thus, the suit was dismissed.;