JUDGMENT I.B. Singh, Member - This is a defendant's Second Appeal against judgement and decree dated 20-12-1980 passed by learned additional Commissioner, Agra Division. Agra, allowing appeal No. 144 of 1979-80 decreeing plaintiffs suit setting aside judgement and decree dated 23-3-1978 passed by Assistant Collector 1st Class; district Mathura dismissing plaintiff suit. 2. Smt. Roshan sister of Maniram filed this suit that she being real sister of Maniram the original tenant of the disputed land, who died one year ago, inherited him and that name of Oma was wrongly recorded by the Supervisor Kanungo as widow of Mani Ram who was not married by Mani Ram although she lived for some time with Mani Ram; that Oma had remarried with Hoti, therefore, she lost her rights, if any, in the disputed land. 3. The suit was contested by defendant Smt. Oma claiming herself to be married wife and widow of Mani Ram that she did not remarry with Hoti who has got his first wife and any such remarriage even if proved being void will not be sufficient to disinherit her. 4. I have heard the learned counsel for the parties and have perused the record. 5. It was argued that the trial court discarded the testimony of P. Ws as they had given contradictory statements in the mutation case and the lower appellate court did not give reasons for upholding their testimony and for discarding the finding of the trial court. The D. Ws. were believed by the trial court who were wrongly disbelieved by the lower appellate court giving no reasons for doing so. Reliance has been placed on 1968 Allahabad page 412 and 1969 A.W.R. page 579, 1977 R.D. page 81, 1972 R.D. page 53. It was further argued that the remarriage with Hoti even if presumed is void and it had been hit by Section 5 and 11 of the Hindu Marriage Act of 1955. It was further argued that plaintiff did not dare to enter in the witness box hence strong presumption arising against her. 6. It was further argued that the remarriage with Hoti even if presumed is void and it had been hit by Section 5 and 11 of the Hindu Marriage Act of 1955. It was further argued that plaintiff did not dare to enter in the witness box hence strong presumption arising against her. 6. It was argued in reply that the concurrent findings of both the courts below that the plaintiff is sister of deceased Mani Ram cannot be interfered with and the finding of the lower appellate court that the defendant Oma who did not dare to enter the witness box nor his father or any person having direct knowledge of the marriage was produced, therefore, she cannot be held to have married Mani Ram and therefore, cannot be held to be widow of Mani Ram. The fact that she had remarried cannot be challenged by any one else as was provided by Section 1 and by Section 2 of Hindu Widow's Remarriage Act of 1956. Its validity even if the remarriage is void and is his by Section 1, (5) or 11 of Hindu Marriage Act of 1955 it may desentitle her to inherit the property of Hoti Ram but she certainly be disinherited from the property of her alleged previous husband due to the remarriage. Reliance has been placed on 1966 A.L.J. page 904. 7. Both courts below have held the plaintiff Smt. Reshma, to be real sister of Mani Ram deceased tenant of the disputed plots about which no arguments were advanced by the learned counsel for the appellant and that finding has not been challenged, hence it is hereby confirmed. 8. Oma's marriage with Mani Ram as admittedly she lived with Mani Ram as his wife for about 4 or 5 years before he died requires no strict proof of her marriage with Mani Ram because in such cases marriage is presumed by conduct of the parties living as husband and wife observed by persons living near them. Therefore, the argument that neither Oma nor her father appeared as witness to prove the marriage of Oma with Mani Ram strictly according to Hindu Law does not raise any presumption because all the P. Ws. admitted that Oma lived with Mani Ram as his kept but she had not married with him. D. Ws. have also stated so who were believed. admitted that Oma lived with Mani Ram as his kept but she had not married with him. D. Ws. have also stated so who were believed. The lower appellate court without giving any reason set aside the finding of the trial court disbelieving the D. Ws. and believing the P. Ws. Such a practice is not warranted by law. If the lower appellate court comes to a different conclusion without giving reasons to disbelieve the witnesses disbelieved by the trial court it must give reasons for doing so which has not been done in the present case. Section 50 of the Indian Evidence Act relaxes rigour of the rule excluding hearsay evidence in case of proof of marriage or relationship of one person to another. Continuous Co-habitation of a man and woman as husband and wife and their treatment as such for a number of years raises presumption of their marriage and it is not essential that the factum of marriage must be established by eye witnesses or proof of the performance of ceremonies. This section makes relevant the opinion expressed by conduct. It may be proved by the evidence of the person holding the opinion or by other persons acquainted with such facts evidencing conduct and such proof by the admission of P. Ws. and testimony of D. Ws. has been amply furnished in the present case. Even the fact of their living as husband and wife without having married is admitted in the plaint and the plaintiff did not dare to enter into witness box to deny the marriage or to deny the fact of Mani Ram and defendant living as husband and wife and their continuous relationship of Co-habitation as man and woman and as husband and wife. Therefore, I hold that the defendant Oma was married to Mani Ram and after his death was rightly mutated over the disputed land as his widow and the finding of the lower appellate court against it cannot be allowed to stand. I am supported in my above view by Bamraj and others v. Gaya and other 1969 A.W.R. (H.C.) 579. 9. It is proved that the defendant Oma remarried with Hoti who has got his first wife living with him. Therefore, both the courts held that remarriage of Oma with Hoti is void according to Section 5(i) ans Section 11 of the Hindu Marriage Act of 1955. 9. It is proved that the defendant Oma remarried with Hoti who has got his first wife living with him. Therefore, both the courts held that remarriage of Oma with Hoti is void according to Section 5(i) ans Section 11 of the Hindu Marriage Act of 1955. This finding is correct but the lower appellate court drew a strange and erroneous conclusion that unless that remarriage is declared to be void by the civil court the defendant will be disinherited from the holding of Mani Ram her former husband. This conclusion is highly arbitrary and perverse. Section 11 of the Hindu Marriage Act runs as follows:- Section 11 void marriage: "Any marriage solemnised after the commencement of this 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) (v) of Section 5." 10. This section never lays down that the marriage performed in contravention of clause (i), (iv) and (v) of Section 5 shall be null and void only if a declaration is got to that effect by either party thereto against the other party. It only further provides after providing that such a marriage solemnised after the commencement of the Act in contravention of the one of the conditions specified in clauses (i), (iv) and (v) of Section 5 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. So getting it so declared as null and void is left to the sweatwil of the either party but the section is quite clear that mere solemnization of such marriage against the conditions mentioned in Section 5 shall be null and void and it shall remain null and void even if no such declaration is sought be either party. 11. The remarriage of Oma with Hoti is contravened by Section 5 (1) of the Hindu Marriage Act because Hoti's first wife is alive and is living with him when the remarriage was solemnized. 12. In A.I.R. 1968 Allahabad page 412 relying on A.I.R. 1964 (S.C.) page 1625, A.I.R. 1965 Alld. 11. The remarriage of Oma with Hoti is contravened by Section 5 (1) of the Hindu Marriage Act because Hoti's first wife is alive and is living with him when the remarriage was solemnized. 12. In A.I.R. 1968 Allahabad page 412 relying on A.I.R. 1964 (S.C.) page 1625, A.I.R. 1965 Alld. page 464 and A.I.R. 1967 patna page 277 it has been held that marriage of Hindu husband solemnized with second wife during continuance of his marriage with his former wife is void on account of Section 5(1) and 11 of the Hindu Marriage Act and that the second wife is not entitled to claim maintenance from her husband. 13. It was further held that any marriage solemnized after the commencement of this Act shall be void and may, on a petition presented by either party thereto, be declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of Section 5. This section clearly lays down that if the marriage is not performed in accordance with the provisions of Section 5(1) of the Act it would be null and void. Either party to such marriage may also get a declaration by a decree of nullity from a court of law. It, however, could not be the intention of legislature that such a marriage could be valid till it was declaration nullity by the court. For a marriage which was void abinitio no such declaration was at all necessary. If the intention of the legislature had been to the contrary, specific provisions must have been made in the Act. But the section referred to above is perfectly silent on that point. So, it was clear that the marriage which had been performed in contravention of the condition mentioned in clause (i) of Section 5 of the Act would be null and void. 14. In Bansidhar Jha v. Chabi Chatterji AIR 1967 Pat. 277 . it was held that a marriage which contravenes the conditions referred to in Section 11 is in law no marriage at all being void ipso jure and it is open to the parties even without recourse to the court to treat it as a nullity. Neither party is under any obligation to seek a declaration of nullity under this Section though such a declaration may be asked for the purpose of precaution or record. 15. Neither party is under any obligation to seek a declaration of nullity under this Section though such a declaration may be asked for the purpose of precaution or record. 15. Thus it is clear that a marriage which is abinitio, does not alter or effect the status of a party. Therefore remarriage of defendant with Hoti being void abinitio hit by Section 5(i) read with Section 11 of the Hindu Marriage Act 1955 as amended by Act No. 68 of 1976 the defendant is not entitled to inherit Hoti but she is also not disentitled to inherit Mani Ram and she cannot be disinherited from the disputed land which was rightly mutated in her name. The finding of the lower appellate court is, therefore, illegal and is liable to be set aside. Therefore, this appeal is liable to be allowed. 16. In view of the above this appeal is hereby allowed with costs all through. The judgement and decree passed by the lower appellate court is set aside and that of the trail court is restored and is hereby confirmed and the plaintiffs suit stands dismissed with costs all through.