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Madhya Pradesh High Court · body

2003 DIGILAW 1212 (MP)

Kamiabai v. Marubai

2003-11-06

A.K.AWASTHY

body2003
Judgment ( 1. ) APPELLANT/plaintiff has filed this appeal under Section 96 of the CPC against the judgment and decree dated 30. 8. 1999, passed by Additional District Judge Barwah, District West Nimar in civil suit No. 2. A/92, dismissing her suit for declaration of title and possession of the suit house. ( 2. ) ADMITTED facts of the case are that one Ghisaji was the owner in possession of the suit house situated at Ward No. 9. House No. 46, at village Sanawad and Ghisaji expired on 19. 1. 1988. It is also the common ground that Ghisaji got married with one Rupabai and they had no issue from the wedlock. It is also the common ground that defendant No. 1 Marubai has executed a registered sale deed of the suit house on 13. 6. 1990 in favour of defendant Nos. 2 and 3. It is also the common ground that first husband of Marubai was Natthu Rathor of village Dhamnod. ( 3. ) THE case of the appellant/plaintiff is that Marubai has no right and title on the suit house and she without any authority executed the sale deed dated 13. 6. 1990 in favour of respondent Nos. 2 and 3 that the first husband of Marubai Natthu Rathor was alive when she performed alleged marriage with Ghisaji; that the marriage was also void as wife of Ghisaji Smt. Rupabai was alive at the time of alleged marriage of Ghisaji with defendant No. 1 : It is alleged by the plaintiff that she is the daughther of brother of Ghisaji and as Ghisaji has died intestate the appellant plaintiff has become the owner of the suit house. ( 4. ) THE defendants have denied that first husband of Marubai was alive or the wife of Ghisaji was alive when defendant No. 1 Marubai has performed marriage with Ghisaji. It is pleaded by the defendants that defendant No. 1 Marubai is the legally married wife of late Ghisaji and after the death of Ghisaji she became the sole owner of the suit property and sale deed executed by defendant No. 1 in favour of defendant Nos. 2 and 3 is valid. ( 5. It is pleaded by the defendants that defendant No. 1 Marubai is the legally married wife of late Ghisaji and after the death of Ghisaji she became the sole owner of the suit property and sale deed executed by defendant No. 1 in favour of defendant Nos. 2 and 3 is valid. ( 5. ) LEARNED Trial Court, after framing the issues has examined the witnesses of both the parties and held that the plaintiff has failed to prove that the husband of the defendant No. 1 was slive or that wife of Ghisaji was alive when defendant No. 1 has performed marriage with Ghisaji. It is held by the learned Trial Court that after the death of Ghisaji the defendant No. 1 has validly executed the sale deed in favour of defendant Nos. 2 and 3 and as such the suit of the plaintiff is not tenable and dismissed. ( 6. ) THE appellant has assailed the impugned judgment and decree on the ground that the learned Trial Court has erred in holding that the marriage in between defendant No. 1 Marubai and Ghisaji was performed and at the time of said marriage the first husband of defendant No. 1 was dead and the wife of Ghisaji was not alive. Learned Counsel for the appellant has alleged that in view of the fact that the alleged marriage of defendant No. 1 was void under Section 5 of the Hindu Marriage Act. The defendant No. 1 will not get the right in the property of late Ghisaji and as such the sale deed executed by the defendant No. 1 in favour of the defendant Nos. 2 and 3 confers no title to them and the plaintiff is entitled for the relief of possession, declaration and injunction against the defendant Nos. 2 and 3. ( 7. ) MARUBAI (D. W. 2) has stated that Natthuji was her first husband and after the death of Natthuji her marriage was performed with Ghisaji according to the rites and customs and after the death of Ghisaji she has become the owner of the suit house. Suresh (D. W. 3) has stated that he has seen defendant Marubai living with Ghisaji for about 20 years as husband and wife and the marriage in between them was performed in his presence. Suresh (D. W. 3) has stated that he has seen defendant Marubai living with Ghisaji for about 20 years as husband and wife and the marriage in between them was performed in his presence. Gendalal (D. W. 4) and Tulsiram (D. W. 5) have stated that the marriage was performed between the defendant No. 1 and Ghisaji in their presence. The defendant No. 1 has filed certificate (Ex, D/1) issued by the President of the community in which it is clearly mentioned that the defendant No. 1 is living as wife with Ghisaji after performing marriage with him. Consequently, the Trial Court has rightly held that the marriage in between the defendant No. 1 and Ghisaji was performed and they lived as husband and wife for more than 20-25 years. ( 8. ) THE contention of the learned Counsel for the appellants is that the marriage in between the defendant No. 1 and Ghisaji was void as defendant Marubai has admitted that at the time of her marriage the first wife of Ghisaji was alive. Marubai (D. W. 2) in para 13 of her cross-examination has admitted that at the time of her marriage with Ghisaji the first wife of Ghisaji was alive. In view of the clear admission of defendant No. 1 Marubai (D. W. 2) herself it is amply prove that wife of Ghisaji was alive when the alleged marriage of Marubai (D. W. 2) has taken place with him. ( 9. ) PLAINTIFF Kamlabai (P. W. 3) has stated that the marriage of defendant No. 1 was performed with Natthu Rathor and Natthu Rathor was alive at the time of alleged marriage of defendant No. 1 with Ghisaji. Mohabbatsingh (P. W. 4) has stated that he has seen Natthu, the first husband of the defendant No. 1 about 7 years back in the village. Heeralal (P. W. 5) has stated on oath that about 6. 7 years back when he went to Dhamni Ghamera he saw Natthu in the village. Babukhan (P. W. 6) and Shantilal (P. W. 7) have also stated to the effect that they have seen the first husband of the defendant No. 1 alive about few years back. Heeralal (P. W. 5) has stated on oath that about 6. 7 years back when he went to Dhamni Ghamera he saw Natthu in the village. Babukhan (P. W. 6) and Shantilal (P. W. 7) have also stated to the effect that they have seen the first husband of the defendant No. 1 alive about few years back. Consequently, it is clear that the allegation of the plaintiff that at the time of performance of alleged marriage of Ghisaji with the defendant No. 1 her first husband Natthu was alive was fully corroborated by the statement of Mohabbatsingh (P. W. 4), Heeralal (P. W. 5), Babukhan (P. W. 6) and Shantilal (P. W. 7 ). ( 10. ) DEFENDANT Marubai (D. W. 2) has not examined any witness or produced any document to prove that her first husband Natthuji has died about 20 years back. Marubai (D. W. 2) has admitted in para 8 of her cross-examination that Natthu was suffering from T. B. and he was admitted in hospital for the treatment where he died. Defendants have not produced death certificate or the certificate from the hospital to prove that Natthuji has died about 20 years back. Marubai (D. W. 2) has admitted in para 7 of her cross-examination that she had a daughter from Natthuji and the daughter born out of wedlock with Natthuji had three daughters and one son. Defendants had not examined daughter of Natthuji or his grand daughters or any relative of Natthuji to prove that death of Natthuji has taken place about 20 years back. Consequently, it is proved that at the time of performance of marriage of the defendant No. 1 with Ghisaji the first wife of Ghisaji was alive and the first husband of defendant No. 1 was alive. In these circumstances the marriage between the defendant No. 1 and Ghisaji was void under Section 5 of the Hindu Marriage Act. ( 11. ) IT is not in dispute that plaintiff Kamlabai is the daughter of the real brother of Ghisaji. Consequently, after the death of Ghisaji intestate the daughter of his brother had become the owner of the suit house. It is an admitted fact that the defendant Nos. 2 and 3 were living in the suit house from last 20 years. Consequently, it will be presumed that the defendant Nos. Consequently, after the death of Ghisaji intestate the daughter of his brother had become the owner of the suit house. It is an admitted fact that the defendant Nos. 2 and 3 were living in the suit house from last 20 years. Consequently, it will be presumed that the defendant Nos. 2 and 3 had the knowledge that the defandant No. 1 is not the real owner of the suit house thus, the sale deed executed by the defendant No. 1 in favour of the defendant Nos. 2 and 3 does not confer any right or title to defendant Nos. 2 and 3 and they have no right to continue in possession of the suit house. ( 12. ) IN the result, the appeal is hereby allowed and the impugned judgment and decree are set aside. It is hereby ordered and decreed that the respondents/ defendants to deliver the possession of the suit house to the appellant/plaintiff. The appellant/plaintiff will be entitled for the mesne profit at the rate of Rs. 100/- p. m. from the date of filing the suit i. e. 7. 8. 1990 from the respondents/ defendant Nos. 2 and 3. The respondent Nos. 2 and 3 to bear their own costs of the suit and the appeal and also to bear the costs incurred by the appellant/ plaintiff before the Lower Court and in the appeal Court. A decree be drawn up accordingly.