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2005 DIGILAW 148 (JHR)

Paru Bala Mahatain v. Bijubala Mahatain

2005-02-16

HARI SHANKAR PRASAD

body2005
JUDGMENT Hari Shankar Prasad, J. 1. This second appeal, at the instance of the appellant, is directed against the judgment dated 15.2.1991 and decree dated 4.3.1991 passed in the Appeal No. 42 of 1987 whereby and whereunder the learned District Judge, Santhal Pargana at Dumka modified the judgment and decree of the learned Subordinate Judge and allowed the appeal. 2. The plaintiffs instituted a suit for the partition for half share in the suit property and after the appointment of a Amin Commissioner for carving out their separate share, this partition suit was registered as Title Suit No. 11/84/12/87. The case of the plaintiff in brief is that one Lakhiram had two sons namely Iswari Mahato and Jogendra Mahto and defendant No. 1 Kamal Mahto is son and defendant Nos. 2, 3 and 4 are daughters of Jogendra Mahto. The lands described in Schedule A, B and C of the plaint stand recorded jointly in the name of the Iswari Mahato and Jogendra Mahto. Iswari Mahato died in 1940 leaving behind Puran Chand Mahto as his heir, who came in joint possession with Uncle Jogendra Mahto. Jogendra Mahto also died leaving behind his son defendant No. 1 and defendant Nos. 2 to 4 as his heirs. The wife of Jogendra Mahto had predeceased him and plaintiffs are the heirs of Puran Chand Mahto. Further case of the plaintiffs is that in 1966 Puran Chand Mahto married Parubala and had a son Prabhakar. The case of the plaintiffs is that Parubala was not the legally married wife of Puran and as such she is not entitled to any share in the suit property. Bijubala, plaintiff No. 1, is the legally married wife of Puran Chand Mahto and the plaintiff No. 2 Manju Bala Mahtain is daughter of Puran Chand Mahto and after the death of Puran Chand Mahto, trouble arose and hence this suit. 3. Two written statement were filed; one on behalf of defendant Nos. 1 to 4 and other on behalf of defendant Nos. 5 and 6. According to written statement, the, genealogy given by the plaintiffs is not correct and it is alleged that there is no unity of title and possession and the suit lands were partitioned in 1934 B.S. between Sudarshan Mahto and Jogendra Mahto and since then both the branches are coming in separate possession. 5 and 6. According to written statement, the, genealogy given by the plaintiffs is not correct and it is alleged that there is no unity of title and possession and the suit lands were partitioned in 1934 B.S. between Sudarshan Mahto and Jogendra Mahto and since then both the branches are coming in separate possession. According to written statement, Sudarshan Mahto, brother of Puran Chand Mahto, died issueless and after his death, Puran Chand Mahto married Parubala, daughter of Motilal Mahto. The two plaintiffs along with appellants inherited half share of Puran Chand Mahto and other half share belonged to defendant Nos. 1 to 4. However, they have no objection to the partition of the properties according to shares. 4. On the pleadings of the parties, the trial Court framed issues and decided them and the trial Court held that appellant No. 1 is legally married wife of Puran Chand Mahto and decreed the suit of the plaintiff to the extent of half share only and being aggrieved by the judgment and decree of the learned trial Court, the plaintiffs filed Title Appeal No. 42/87 where learned lower appellate Court after considering the evidence and submissions of the plaintiffs witnesses, has come to a finding that appellant No. 1 Parubala is the legally married wife of Puran Chand Mahto and appellant No. 2 Prabhakar is the son of Puran Chand Mahto but at the same time, appellate Court held that marriage between Puran and appellant Parubala is hit by Section 6 of the Hindu Marriage Act and, therefore, appellant Mahtain cannot inherit any property left by Puran Chand Mahto. It was also held that Prabhakar Mahto has got an interest over the property left behind by his father and accordingly he is entitled to get his share separately. The plaintiff Bijubala Mahtain being the first wife of deceased Puran Chand Mahto, is entitled to 1/3rd share in the suit properties. The plaintiff Manju Bala Mahatain and appellant No. 2 Prabhakar Mahto are entitled to 1/12th share each in the suit properties. Being aggrieved and dissatisfied with the judgment and decree of the learned appellate Court, the appellants preferred this Second Appeal, wherein following substantial question of law has been formulated. "Whether the finding of the Court below that the marriage between Puran Chand Mahto and Paru Bala Mahtain is hit by Section 6 of the Hindu Marriage Act?" 5. Being aggrieved and dissatisfied with the judgment and decree of the learned appellate Court, the appellants preferred this Second Appeal, wherein following substantial question of law has been formulated. "Whether the finding of the Court below that the marriage between Puran Chand Mahto and Paru Bala Mahtain is hit by Section 6 of the Hindu Marriage Act?" 5. From the evidence which has come on record and which has also been found by the learned lower appellate Court that Puran Chand Mahto married Parubala in the year 1966, hence admittedly Bijubala was the legally married wife of Puran Chand Mahto and during the lifetime of Bijubala, Puran Chand Mahto married another lady Parubala and it is claimed that Parubala is not the legally married wife of Puran Chand Mahto as marriage is said to be performed in the year 1966, by the time the Hindu Marriage Act, 1955 had come into force and any Hindu during the lifetime of her husband, cannot enter into another marriage and that marriage will not be legal and will be void and on that basis, the learned appellate Court held that Parubala is the legally married wife of Puran Chand Mahto and she will not be entitled to any share. 6. According to Section 5 a marriage may be solemnized between any two Hindus if the following conditions are fulfilled : (i) Neither party has a spouse living at the time of marriage; (ii) At the time of the marriage, neither party-- (a) is incapable of giving a valid consent to it in consequence of unsound- ness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity or epilepsy. (iii) The bridegroom has completed the age of twenty one years and the bride of age of eighteen years at the time of marriage; (iv) The parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Thus according to one of the conditions as laid down under Section 5 is that a marriage between two Hindus may be solemnized if neither party has a spouse living at the time of marriage meaning thereby marriage of Puran Chand Mahto could have been solemnized with Parubala and Bijubala was not surviving at the time of marriage. Clause (i) of this section introduces monogamy which is essential the voluntary union for life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. The expression spouse here used means a lawfully married husband or wife. Before a valid marriage can be solemnized both parties to such marriage must be either single or divorced or a widow or a widower and then only they are competent to enter into a valid marriage. If at the time of performance of the marriage rites and ceremonies one or other of the parties had a spouse living and the earlier marriage had not already been set aside the later marriage is no marriage at all. Being in contravention of the condition laid down in this clause it is void ab initio and it cannot be treated as voidable under Section 12(q2). But so far as this position under Hindu Marriage Act is concerned, this position is there but under the Hindu Succession Act the position is quite otherwise. In this connection learned counsel for the appellant submitted that so far as succession of the property of Puran Chand Mahto is concerned, the succession shall be governed by the Hindu Succession Act and Section 10 says that property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules : Rule I.--the intestates widow, or if there are more widows than one, all the widows together, shall take one share, but contention of learned counsel for the appellant was that according to Hindu Succession Act a marriage can be solemnized when neither party has a spouse living at the time of the solemnization of marriage and, therefore, according to Section 5 of the Hindu Marriage Act a person enter into a marriage should be singled meaning thereby he should not have spouse living or he should have either a widow or widower. On the other hand, woman must not have a husband living at the time she was going to enter into a marriage and, therefore, according to Hindu Marriage Act, a man cannot have two wives but as per Section 10 of the Hindu Succession Act referred the widow or may be more than one widow shall get one share and in the instant case Parubala and Bijubala are two widows of the Puran Chand Mahto and both of them will inherit the property of Puran Chand Mahto to the exclusion of others. He further elaborated the position saying that Hindu Succession Act concedes of a situation when Hindu can have two wives. He further stated that this Hindu Succession Act came into force in 1956 after Hindu Marriage Act came into force in 1955. In this connection he further referred Section 4, Clause 1(a)(b) quoted herein below : Overriding effect of the Act.--This section gives overriding application to the provisions of the Act and in effect lays down that in respect of any of the matters dealt with in the Act it seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with this Act and, therefore, Section 10, Rule 1 says that the intestates widow or if there are more widows than one, all the widows together, shall take one share. Here in the instant case Parubala and Bijubala will inherit the property of Puran Chand Mahto as one share. 7. Learned counsel for the appellants submitted that as per provision of Hindu Marriage Act, one or if there are more than one wife, then they will all succeed properties of their husband as class-1 heir, which goes to show that Parubala who has been held to be the legally married wife of Puran Chand Mahto will also be entitled to share in the property of Puran Chand Mahto as Hindu Succession Act came into force in 1956, whereas Hindu Marriage Act came into force in 1955 and after making such provision in Hindu Marriage Act, provision was made in Hindu Succession Act, 1956 that a male Hindu can have one or more wife and this goes to show that male Hindu can have two wives at a time and even more than that. But question here is that, no doubt such provision under Section 10(1)(a) of Hindu Succession Act has been made, but question here involved is that it has been established by the evidence that Puran Chand Mahto married Parubala in the year 1966 and by that time, both Acts one in 1955 and another in 1956 had come into force and position is that since prior to coming into force of these two Acts, if a male Hindu has two wives and thereafter coming into force of these Acts he dies, in that case he will have one or more than one widows, in that case more than one widows will inherit the properties of their husband. But here in the instant case, since Puran Chand Mahto married Parubala in the year 1966 and at that time Hindu Marriage Act had come into force and according to Section 5 of this Act, limitation or restriction was imposed on either spouses that during the lifetime of either spouse if marriage is performed, the second marriage will be void and ab initio and, therefore, marriage of Puran Chand Mahto with Parubala has got no legal sanction and she cannot be entitled to any share in the property of Puran Chand Mahto under Section 10(1)(a) of the Hindu Successions Act because marriage was solemnized after Hindu Marriage Act, 1955 came into force and not prior to that. 8. Learned counsel for the appellants further submitted that initially, the suit was brought for partition and the learned trial Court accordingly proceeded, but the learned lower appellate Court came to different findings which was not within the jurisdiction of the appellate Court. In this connection, reliance was placed upon wherein it was held that plaintiff and defendant alleging independent right, title and interest over the disputed plot and the Court of appeal making out new case, holding the plaintiff and defendants to be entitled to equal share in joint possession and the order is illegal. It was further held that Courts are not at liberty to grant relief either not brought for in plaint or that does not flow naturally from ground of claim as stated in plaint. In this connection, my attention was drawn to Para-16 of the judgment which is quoted hereinbelow :-- "16. It was further held that Courts are not at liberty to grant relief either not brought for in plaint or that does not flow naturally from ground of claim as stated in plaint. In this connection, my attention was drawn to Para-16 of the judgment which is quoted hereinbelow :-- "16. In the present case, the plaintiff as well as the contesting defendant both alleging independent right, title and interest over the disputed plot, it was not for the Court of appeal below to make out a new case for the parties and to hold that the plaintiff and the contesting defendants were entitled to half and half and that they were in joint possession. The Court cannot make out a new case for a party. It is true that the Courts are bound to take into consideration all the rights of the parties to the suit, both legal and equitable, and give possible but the Courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint." In this connection, it may be pointed out that the learned lower appellate Court has not made out a new case because eventually the interest of Parubala was also involved and evidence has come to that effect from the side about performance of marriage of Puran Chand Mahto with Parubala and in that context, learned lower appellate Court decided the fact and, therefore, the learned appellant Court has not tried to make out a new case. 9. One consideration of submissions made above, I am of the view that no case for interference with the judgment and decree of the learned lower appellate Court is made out. In that view of the matter, this appeal is dismissed, but in the circumstances without any order as to costs.