SA/325/2014 of RADHESHAYAM MANDLOI Vs UDAYBAI on 2 February 2024

ORDER

T he present second appeal has been filed being aggrieved by thejudgment and decree passed by the III Additional District Judge, Khargonedated 03.09.2013 in Civil Appeal No.22-A/2012 by which the judgment and decree passed by II Civil Judge, Class-II, Khargone, dated 31.07.2012 in CivilSuit No. 10-A/2011 was modified and the plaintiff/appellant suit for injunctionwas dismissed.

2 . In nutshell the appellant/plaintiff case before the trial Court was thatthe disputed house situated in village Mohammadpur, Tehsil Gogava, DistrictKhargone measuring 90 x 30 ft, that 30 x 15 ft open land adjacent to originallybelongs to the deceased Narsingh Rajpoot, who left behind two widowsJadavbai and Sajanbai after his death on 07.10.2002. Both widows Jadavbaiand Sajanbai partitioned the movable and immovable property of the deceasedNarsingh Rajpoot on 29.09.1975. Second wife Sajanbai became the owner ofthe disputed property. First wife Jadavbai after taking her share in partition gotseparated. Respondent No.1 Udaibai is the daughter of first wife Jadavbai. Sajanbai expired on 12.08.2011, but before her death due to certain accidenther feet got fractured and the plaintiff took her to his home. Sajanbai duringher lifetime executed a registered will in favour of appellant plaintiff on07.10.2002 and by that he got the ownership of the disputed house and is inpossession of the house. Respondents were interfering in his possession so hefiled a suit for permanent injunction.

3. Respondents Udaibai and Balramsingh filed a written statement anddenied all the plaint statements and stated that Jadavbai was the first wife of thedeceased Narsingh Rajpoot and from that wedlock two daughtersShivkuwarbai and Udaibai were borne. Deceased Narsingh Rajpootsoleminized second marriage after 18.05.1955, without divorcing the first wifeand, therefore the marriage with the second wife was not a valid marriage andon that basis second wife has no right on the property of the deceased NarsinghRajpoot. The disputed house and land is the ancestral property. The will dated 07.10.2002 does not confer any right on plaintiff as the Sajanbai was having nolegal right to execute the will of the disputed property. The respondentdefendant has also denied the partition between two widows on 29.09.1975 andthe respondent also denied the possession of the plaintiff on the disputed land.

4. The trial Court on the pleadings, framed the issues and recorded theevidence of the parties decreed the suit of the plaintiffs.

5. Respondents being aggrieved with the judgment and decree filed anappeal before the Court of III Additional District Judge, Khargone. The firstAppellate Court after hearing the parties reversed the decree regardingownership and also amended the decree regarding the injunction and onlygranted the relief that plaintiff shall not be dispossessed from the possession ofthe disputed house, without following the due process of law. Being aggrievedwith the above judgment, the plaintiff filed this second appeal.

6. Learned counsel for the appellant has argued that trial Court hasdecreed the suit and granted the relief of declaration as well as injunction. Thetrial Court has properly appreciated the evidence and it was not proved that thesecond wife of deceased Narsingh Rajpoot was not legally wedded wife. Thewill was executed by the Sajanbai was proved before the trial Court. It wasalso proved that both widows of Narsingh Rajpoot have partitioned movableand immovable property and partition deed Exhibit-P-7 was executed betweenthem, but the first appellate Court has admitted the appeal and without anysufficient reasons illegally disturbed the decree passed by the trial Court.

7. Learned counsel for the respondents has supported the judgment anddecree passed by the trial Court. Argued that trial Court has granted the decreeof declaration of ownership of the disputed property that was not prayed by the plaintiff in his suit and the burden to prove that the marriage solemnizedbetween the deceased Narsingh Rajpoot and Sajanbai was a valid marriage after the enactment of Hindu Marriage Act, 1955 on plaintiff as it was not proved andif that marriage is also proved to be legal as per Hindu Succession Act, 1956the deceased Narsingh Rajpoot have two daughters, one is the Udaibai andanother one was Shivkuwarbai and as per the Hindu Succession Act, the twodaughters were the legal heirs of the deceased Narsingh Rajpoot and in thisfactual situation the movable and immovable property of the deceased can bepartitioned only between two daughters and widows and the maximum what thewidows get was collectively 1/3rd share and 1/3rd share to the first daughterand 1/3rd share to the second daughter. If any partition has taken place theyare not bounded to that. Thus, in that situation Sajanbai was not competent toexecute the will regarding half of the share of the property. Trial Court haswrongly decreed the suit. First appellate Court has discussed the fact andpassed the judgment as per the law and no interference is called for.

8. I have gone through the record. It is an admitted position in the casethat the deceased Narsingh Rajpoot got married firstly with the mother of therespondent No.1 Udaibai in the lifetime of his first wife he remarried withSajanbai, from second marriage there was no issue and from the first wifeJadavbai deceased Narsingh Rajpoot had two daughters, Udaibai andShivkuwarbai. Both were got married and after the marriage Shivkuwarbai has expired .

9. On this issue, the first appellate Court has discussed the fact that themarriage of Sajanbai was solemnized before the Hindu Marriage Act, 1955 cameinto force i.e. prior to 18.05.1955, has not proved, on that basis alone thedeceased second wife Sajanbai have no right on the property of the deceased

Narsingh Rajpoot, as marriage between them has been solemnized after18.05.1955 in the lifetime of first wife being violation of Section 5 of the HinduMarriage Act is void and wife from void marriage cannot claim any right overthe ancestral property of the deceased. Further more, first appellate Court hasalso discussed that the will was executed on the basis that the Sajanbai got thedisputed house through partition deed (Exhibit-P-7), but as per HinduSuccession Act, 1956 deceased Narsingh Rajpoot had two daughters from hisfirst wife Jadavbai i.e. Udaibai and Shivkuwarbai and deceased NarsinghRajpoot expired without executing the will. In that situation, widow would onlyget a share jointly and two daughters would have get separate share and thus thepartition deed Exhibit-P-7 is against the provisions of Hindu Succession Act,1956 and on that basis the respondent No.1 Udaibai was not competent toexecute the will regarding the disputed property.

10. The first appellate Court has also concluded that the plaintiff has notclaimed the relief of declaration of title and that was granted by the trial Courtso it was reversed and regarding the possession it was concluded by the firstappellate Court that the plaintiff is in possession, but it was not proved that hewas having the right to possess the property so the limited injunction wasgranted that without following the due process of law the plaintiff shall not bedispossessed by the respondents.

11. Thus after above discussion, it is clear that no infirmity or perversityis found in the impugned judgment and, therefore, the appeal is not admissible.Accordingly, the appeal is dismissed in limine.

12. A copy of this order along with record be sent back to the courts below for information and its compliance.

rashmi

(DEVNARAYAN MISHRA)JUDGE