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2016 DIGILAW 92 (ORI)

RAMA SAHU v. SUJATA SAHU

2016-02-01

D.DASH

body2016
JUDGMENT : D. Dash, J. - The appellant in this appeal has called in question the judgment and decree passed by the learned District Judge, Bhadrak in R.F.A. No. 13 of 2014 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Bhadrak in Title Suit No. 355 of 2003. 1. The appellant being the plaintiff when had filed the suit for declaration that she is the married wife of Narayan Prasad Sahu and that defendant no. 3 to 7 along with her are the successors of deceased-Narayan Prasad being the mother and children of Narayan Prasad through plaintiff-appellant; the defendant no. 1 and 2 had also filed counter claim seeking the declaration that the marriage between the plaintiff-appellant and Narayan Prasad did never take place and if at all it is so found, it is a void marriage as because the earlier marital tie between the Narayan Prasad and defendant no. 1 has been subsisting all along. The trial court while dismissing the suit and thus refusing to grant any relief to the plaintiff-appellant as prayed for, decreed the counter claim declaring respondent-defendant 1 as the legally married wife of Narayan Prasad. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The case of the plaintiff is that the marriage between herself and Narayan Prasad had taken place on 15.11.1978. It was solemnized as per the Hindu caste, custom. It is further stated that after marriage, plaintiff remained in her matrimonial house with Narayan as husband and wife and defendant no. 4 to 7 are the children born out of said wedlock. The defendant no. 3 is the mother of Narayan. It is further stated that defendant no. 4 to 7 were admitted in the school for the purpose of their education by Narayan Prasad and he was taking all their care. On 31.01.2002, Narayan Prasad retired as Senior Clerk while working in the Office of Tahasildar, Jeypore and shortly thereafter on 03.08.2002 he breathed his last. It is further stated that defendant no. 7 had performed the obsequies of Narayan Prasad. The claim of the defendant no. 1 and 2 as the successors of Narayan Prasad is said to be false. On 31.01.2002, Narayan Prasad retired as Senior Clerk while working in the Office of Tahasildar, Jeypore and shortly thereafter on 03.08.2002 he breathed his last. It is further stated that defendant no. 7 had performed the obsequies of Narayan Prasad. The claim of the defendant no. 1 and 2 as the successors of Narayan Prasad is said to be false. As the plaintiff failed to obtain the legal heir certificate as applied for showing her as the one of legal heirs of Narayan Prasad, she had no other alternative but to file the suit. Defendant no. 1 and 2 in contesting the suit asserted that Narayan Prasad's legally married wife is defendant no. 1 alone and their marriage had taken place in accordance with the caste, custom and rites of the parties. Support for the purpose has been derived from an order passed in Title Suit No. 15 of 1978 which was a matrimonial proceeding and which was disposed of in terms of compromise between the Narayan Prasad and defendant no. 1 by grant of monthly maintenance to defendant no. 1 by Narayan Prasad followed by an order of judicial separation between them. It is stated that plaintiff being a clever lady had kept illicit relationship with Narayan Prasad. But no marriage between them was ever performed. If at all any such marriage had taken place, the same is said to be void in presence of defendant no. 1, continuing with the status as the legally married wife of Narayan Prasad. Defendant no. 2 is said to be the son of Narayan Prasad through defendant no. 1. The marriage certificate produced by the plaintiff is alleged to be a manufactured one. It is also stated that defendant no. 4 to 7 have no right over the property left by Narayan Prasad being not the legal successors of Narayan Prasad. The status of defendant no. 3 as the mother of Narayan Prasad is also denied. With such pleadings, a counter claim has been raised seeking a declaration that defendant no. 1 is the legally married wife and defendant no. 2 is the son of Narayan Prasad and as such they have the right to succeed to the property left by the Narayan Prasad, when the plaintiff and defendant no. 3 to 7 have nothing to do with the same. 1 is the legally married wife and defendant no. 2 is the son of Narayan Prasad and as such they have the right to succeed to the property left by the Narayan Prasad, when the plaintiff and defendant no. 3 to 7 have nothing to do with the same. The plaintiff had filed written statement to the counter claim further asserting her status as also the status of defendant no. 3 to 7 vis-a-vis Narayan Prasad and denying the status of defendant no. 1 and 2. 4. On such rival pleadings, the trial court having framed three issues has taken up all those for decision together. The controversy remains as regards the competing claim of the plaintiff and defendant no. 1 as the legally married wife of Narayan Prasad followed by the dispute with regard to status of defendant no. 2 being son of Narayan Prasad born through defendant no. 1 and defendant no. 4 to 7 being the children of Narayan Prasad born through plaintiff as also defendant no. 3 being mother of said Narayan Prasad. The parties have led evidence both oral and documentary in support of their rival claim. The trial court has gone for detail examination of those as the decision on those issues squarely depends upon the final outcome of appreciation of evidence as to which side has established their respective case through evidence by preponderance of probability. Finally, the trial court as it appears having taken up thorough examination of evidence let in by the parties and having scanned those has rendered a finding that the plaintiff is not the legally married wife of Narayan Prasad and the marriage with Narayan Prasad is void in further holding that defendant no. 4 to 7 are the children of Narayan Prasad through plaintiff and defendant no. 3 is Narayan Prasad's mother. The unsuccessful plaintiff being aggrieved by such dismissal of the suit as also the decree passed in favour of defendant no. 1 and 2 in respect of their counter claim had carried an appeal under section 96 of the Code of Civil Procedure. 3 is Narayan Prasad's mother. The unsuccessful plaintiff being aggrieved by such dismissal of the suit as also the decree passed in favour of defendant no. 1 and 2 in respect of their counter claim had carried an appeal under section 96 of the Code of Civil Procedure. The appellate court as it is seen from the judgment has made an independent analysis of the evidence in order to judge the sustainability of the finding of fact as rendered by trial court and it appears from the judgment of the lower appellate court that the evidence has been critically examined and ultimately being the final court of fact, it has not been able to disturb the finding of the trial court as stated above. Therefore, now, the plaintiff has filed the appeal under section 100 of the Code of Civil Procedure. 5. The appeal has been admitted on the following substantial questions of law:- (A) Whether the courts below are correct in saying the plaintiff's marriage with Narayan Prasad being subsequent to the marriage of defendant no. 1, such a marriage was a void marriage? (B) Whether the courts below are justified in saying that children of the void marriage i.e., defendant no. 4 to 7 do not have the right of succession over the property of Narayan Prasad? 6. Learned counsel for the appellant in course of hearing has not been able to place anything before this Court in showing that the concurrent finding of fact arrived at by the courts below suffers from the vice of perversity in as much as either any such material evidence have been overlooked or that any inadmissible evidence have been taken into consideration and given undue weightage which if would have been correctly done, the finding might have been otherwise. He further contends that defendant no. 4 to 7 are to be held to be the children of Narayan Prasad through plaintiff who admittedly was living with the Narayan Prasad for a long period as husband-wife and in view of evidence that they were as such recognised in the society despite the finding that defendant no. 1 is the wife of Narayan Prasad and their marriage had taken place prior to the marriage and living of the plaintiff with Narayan Prasad. According to him, defendant no. 1 is the wife of Narayan Prasad and their marriage had taken place prior to the marriage and living of the plaintiff with Narayan Prasad. According to him, defendant no. 3 to 7 could not have been deprived of their status as the heirs of Narayan Prasad on the face of evidence on record. He further contends that the court's below have not directed their attention in that light and that should have been accordingly clarified in order to put an end to the dispute for all times to come and in that light, the Court should have exercised the power under Order 7, Rule 7 of the Code of Civil Procedure in properly modulating the relief as prayed for. He has also placed reliance on a decision of the Apex Court in case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and Others v. K. Devi and Others, 1996 (1) OLR (SC) 598; in support of his submission that even if the defendant no. 4 to 7 are the children born out of void marriage in view of the provision of section 16 of the Hindu Marriage Act, they being illegitimate children; for all practical purpose including succession to the properties of their parents are to be treated as legitimate although they cannot succeed to the properties of any other relation on the basis of said provision which has its limited operation to the properties of the parents. 7. Learned counsel for the respondent no. 2 fairly concedes to the settled position of law; so far as the contention of the learned counsel for the appellant the claim/s of defendant no. 4 to 7 and also defendant no. 3. According to her although they are the children born out of void marriage, yet they are to be held as legitimate for the limited purpose as per law settled by the Apex Court in the above cited decision and also the other decision of different High Courts that so far the succession to the properties of their parents are concerned by operation of law as expressed in section 16 of the Hindu Marriage Act. She clarifies that they have to be treated as legitimate of course with limited operation to the field of the properties of the parents. Thus, she submits to have no objection for necessary declaration to that effect. 8. She clarifies that they have to be treated as legitimate of course with limited operation to the field of the properties of the parents. Thus, she submits to have no objection for necessary declaration to that effect. 8. Bearing the above submissions in mind, this Court when upon careful reading of judgment of the trial court as well as that of the lower appellate court does not find the concurrent factual finding firstly as regards the status of the plaintiff as claimed to be not suffering from the vice of perversity, the question arises as to whether in view of nature of dispute between the parties in view of the reliefs as prayed for in the plaint as also in the counter claim, was it the duty of the courts below to further modulate the relief on the basis of factual findings so as to put an end to the dispute for all times to come in future as also to prevent the multiplicity of proceedings. 9. This Court feels that the courts below in that regard have failed to perform their duty in not exercising the power vested in them under Order 7, Rule 7 of the Code of Civil Procedure. In that view of the matter, this Court holds that the suit of the plaintiff instead of being dismissed in its entirety, ought to have been decreed in part with further declaring the defendant no. 3 to be the one of the legal heirs and successor of Narayan Prasad being the mother, a Class-I heir as per Schedule ? 1 of the Hindu Succession Act 1956 and defendant no. 4 to 7 being the children of Narayan Prasad born out of void marriage between the plaintiff and Narayan Prasad and as such being entitled to succeed to the property of Narayan like legitimate children in view of the provision of section 16 of the Hindu Marriage Act with its limitation operation. 10. In view of aforesaid, the appeal stands disposed of as under:- The suit of the plaintiff is decreed in part and the counter claim stands decreed. The defendant no. 1 to 3 are hereby declared as the legal heirs and successors of Narayan Prasad being the Class-I heirs as per the Schedule ? 1 of Hindu Succession Act 1956 and the defendant no. The defendant no. 1 to 3 are hereby declared as the legal heirs and successors of Narayan Prasad being the Class-I heirs as per the Schedule ? 1 of Hindu Succession Act 1956 and the defendant no. 4 to 7 are hereby declared as the legal heirs and successors of Narayan Prasad for the purpose of succeeding the properties of Narayan Prasad. 11. However, in the facts and circumstances of this case, no order as to cost is passed.