JUDGMENT : Mir Alfaz Ali, J. This second appeal is by the plaintiff, against the judgment and decree dated 23.06.2008 passed by the learned Civil Judge, Barpeta in Title Appeal No. 23/2007. 2. The predecessor of the present appellant, Late Abala Bala Nath instituted a suit (TS 118/2005) praying for declaration of right, title, interest, confirmation of possession and also for issuance of separate patta in respect of the suit land. The case of the plaintiff was that the land measuring 8 bigha 01 katha 12 lessa, covered by Dag No. 168, 169, 358, 359, 361 and 371 of Patta No.144 at village Ahom Pathar of Mouza Damaka Chakabausi, described in Schedule-A of the plaint originally belong to one Boloram Nath, brother of Late Golak Nath. Upon death of Boloram Nath, the said property devolved upon Golak Nath being the sole legal heir and accordingly Golak Nath inherited the property. Golak Nath married Basan Nath (since deceased), mother of the original plaintiff Abala Bala Nath. Golak Nath also kept Ayodhya Bala Nath as his concubine and he never married said Ayodhya Bala Nath. After the death of Golak Nath, his property described in Schedule-A of the plaint was inherited by the plaintiff Abala Bala Nath. However, the name of Ayodhya Bala Nath was also mutated along with the plaintiff, Abala Bala Nath without her knowledge, though, Ayodhya Bala Nath was not legally married wife of Golak Nath and she was not entitled to inherit the property left by Golak Nath. Thereafter the names of the defendants, Giren Nath was also mutated in respect of the suit land without the knowledge of the plaintiff. It was also the case of the plaintiff that neither Giren Nath nor Ayodhya Bala Nath has any title over the suit land and plaintiff was the sole owner of the suit land as the legal heir of her deceased father Golak Nath. The plaintiff sold 1 bigha 0 katha 12 lessa of land under Dag No. 168 out of the Schedule-A land, to the Secretary, Bishnujyoti High School by executing a registered deed. After selling 1 bigha 12 lessa of land, the plaintiff Abala Bala Nath remained the owner of the remaining land. The plaintiff sold 1 bigha 0 katha 12 lessa of land under Dag No. 168 out of the Schedule-A land, to the Secretary, Bishnujyoti High School by executing a registered deed. After selling 1 bigha 12 lessa of land, the plaintiff Abala Bala Nath remained the owner of the remaining land. As Ayodhya Bala Nath got her name mutated without her knowledge and subsequently, Giren Nath also got his name mutated on the strength of a gift deed purportedly executed by Ayodhya Bala Nath without having any right title over the suit land, the plaintiff Abala Bala Nath has filed the suit. 3. The defendant contested the suit by filing written statement stating therein, that Ayodhya Bala Nath was the wife of Golak Nath and after death of Golak Nath, his property was inherited equally by Ayodhya Bala Nath and Abala Bala Nath. After marriage of Abala Bala Nath, Ayodhya Bala Nath started living with the defendant Giren Nath and she gifted the land measuring 4 bigha 0 katha 16 lessa out of the schedule-A land to the defendant and on the strength of said gift deed, the defendant took possession of the suit land and his name was also mutated. The defendant also set up a counter claim seeking declaration of his right, title and interest over the land measuring 4 bigha 0 katha 16 lessa on the strength of the gift deed executed by Ayodhya Bala Nath and also sought for partition and separate possession of the said land, described in Schedule-X of the counter claim. 4. On the basis of the above pleading of the parties, learned trial court framed the following issues: (i) Whether there is cause of action of the plaintiff's suit? (ii) Whether the plaintiff's suit is barred by law of limitation? (iii) Whether the plaintiff has right, title and interest and possession on the suit land? (iv) Whether the defendant has right, title and interest on the suit land? (v) Whether the B-Schedule land is liable to be partitioned from 'A' schedule land? (vi) Whether the parties are entitle for the decree as prayed for in the suit or claim?" 5. Both the parties adduced evidence and after hearing the parties, the learned trial court dismissed the suit of the plaintiff. However, decreed the counter claim of the defendant. 6. Aggrieved, the plaintiff preferred an appeal, which was registered as T.A. No. 23/2007. (vi) Whether the parties are entitle for the decree as prayed for in the suit or claim?" 5. Both the parties adduced evidence and after hearing the parties, the learned trial court dismissed the suit of the plaintiff. However, decreed the counter claim of the defendant. 6. Aggrieved, the plaintiff preferred an appeal, which was registered as T.A. No. 23/2007. The learned first appellate court partly allowed the appeal modifying the decree, whereby declared the right title and interest of the plaintiff over 3 bigha 4 lessa of land. The learned first appellate court also upheld the decree to the extent of relief granted to the defendant in his counter claim. 7. Aggrieved, the plaintiff preferred the instant appeal, which was admitted to be heard on the following substantial questions of law. "(1) Whether under Hindu Law, late Ayodhya Bala Nath, concubine of Late Golak Nath, assuming but not admitted, to be his widow can transfer by way of gift the share from the property of Late Golak Nath, that too in favour of her brother, without prior consent of the other heir/daughter of Late Golak Nath ( AIR 2003 Mad. 157 )? 2. Whether learned court below has committed wrong in accepting and deciding the counter claim raised in the written statement filed by the respondent No. 1, in violation of provisions under Order 8 Rule 6A which requires filing of separate counter claim and registration of cross suit?" 8. I have heard Mr. M.H. Ahmed, learned counsel assisted by Ms. Sultana, learned counsel for the appellant and Mr. K.P. Sarma, learned counsel for the respondent. 9. Learned counsel for the appellant submitted that Ayodhya Bala Nath was a concubine of Golak Nath and therefore she could not inherit any property left by Golak Nath. It was also submitted by the learned counsel for the appellant, that even if it is assumed for the sake of argument, that Ayodhya Bala Nath was the second wife of Golak Nath, in that case also, the purported marriage of Ayodhya with Golak Nath was void in view of his first wife Basan Nath being alive. It was also submitted by the learned counsel for the appellant, that even if it is assumed for the sake of argument, that Ayodhya Bala Nath was the second wife of Golak Nath, in that case also, the purported marriage of Ayodhya with Golak Nath was void in view of his first wife Basan Nath being alive. Therefore, from that angle also Ayodhya Bala Nath was not entitled to inherent the property left by Golak Nath, inasmuch as, in order to be a 'widow' within the meaning of class-1 heirs of the schedule of the Hindu Succession Act, for being entitle to inherent the property of the husband, one has to be 'wife' first, by way of a valid marriage, submits, Mr. Ahmed. It is therefore submitted that Ayodhya Bala Nath having not inherited the property of Golak Nath, she did not have title to make any gift of the suit property in favour of the defendant. 10. Learned counsel for the respondent contended that Ayodhya Bala Nath was the wife of Golak Nath and after death of Golak Nath, his property was inherited by the daughter Abala Bala Nath (plaintiff) and wife Ayodhya Bala Nath in equal share and therefore Ayodhya Bala Nath validly gifted 4 bigha 16 lessa of land in favour of the defendant Giren Nath. Ayodhya Bala Nath having half share in the property left by Golak Nath, Giren Nath acquired valid title over the suit land by way of gift and therefore, both the courts below rightly decreed the counter claim of the defendant in respect of the property gifted to him by Ayodhya Bala Nath. 11. In order to answer the first substantial question of law, what needs to be ascertained at the outset, in view of the pleadings of the parties is, whether Ayodhya Bala Nath was wife or for that matter widow of Golak Nath or she was living with Golak Nath as mere concubine. Specific plea of the plaintiff was that Ayodhya Bala Nath was concubine of Golak Nath, who never married her and such claim/plea was denied by the defendnat. Therefore, necessarily the initial burden was on the plaintiff to prove that Ayodhya Bala Nath was living with Golak Nath as mere concubine or that she was not the wife of Golak Nath. Specific plea of the plaintiff was that Ayodhya Bala Nath was concubine of Golak Nath, who never married her and such claim/plea was denied by the defendnat. Therefore, necessarily the initial burden was on the plaintiff to prove that Ayodhya Bala Nath was living with Golak Nath as mere concubine or that she was not the wife of Golak Nath. Although, the plaintiff filed the suit claiming title over the entire property left by Golak Nath as his sole heir, alleging that Ayodhya Bala Nath was concubine and not a legally married wife of Golak Nath, during evidence, the plaintiff examining herself as PW-1 stated in cross examination that she had no knowledge as to whether Ayodhya Bala Nath was also the wife of her father. She also admitted in her evidence that she did not recollect her father Golak Nath, meaning thereby, Golak Nath died during her early childhood. The PW-1, who was aged about 90 years on 20.06.2006, while adducing evidence, stated, that she was borne before independence. The PW-2 stated in his evidence that he even did not see Golak Nath. PW-3, who was aged about 40 years at the time of adducing evidence, did not state anything about the relationship of Ayodhya Bala Nath with Golak Nath. As against the above evidence of the plaintiff side, DW-2, who was 75 years of age at the time of adducing evidence, stated, that Golak Nath married Ayodhya Bala Nath and she was wife of Golak Nath. This evidence of DW-2 was not controverted, rather, it was elicited during cross examination of DW-2, that Golak Nath had two wives. Therefore, the evidence of the defendant, more particularly, the unchallenged oral testimony of the DW-2, that Golak Nath had two wives, being Ayodhya Bala Nath and Basan Nath, (mother of the plaintiff Abala Bala Nath) on the one hand, and absence of any evidence from the side of the plaintiffs to substantiate their claim, that Ayodhya Bala Nath was living with Golak Nath as concubine on the other hand, tested in the touchstone of preponderance and probability, would clearly suggest that Ayodhya Bala Nath was the wife and for that matter 'widow' of Golak Nath. According to plaintiff, Abala Bala Nath, her mother Bason Nath predeceased her father Golak Nath. Evidently, Golak Nath was survived by his daughter Abala Bala Nath (original plaintiff) and the second wife Ayodhya Bala Nath. According to plaintiff, Abala Bala Nath, her mother Bason Nath predeceased her father Golak Nath. Evidently, Golak Nath was survived by his daughter Abala Bala Nath (original plaintiff) and the second wife Ayodhya Bala Nath. Ext-1, the certified copy of the jamabandi also shows that the suit land was initially mutated in the names of Ayodhya Bala Nath and the plaintiff Abala Bala Nath and in place of Ayodhya Bala Nath, the name of the defendant Giren Nath was mutated on the strength of gift deed, whereby Ayodhya Bala Nath gifted 4 bigha 16 lessa of land being her half share in the suit property. 12. Learned counsel for the appellant contended that in order to be a 'widow', the woman has to be legally married wife of the deceased. Referring to Section 11 of the Hindu Marriage Act, which provides that marriage during life time of the spouse is void, Mr. Ahmed submits that even if it is assumed for the sake of argument, that Golak Nath married Ayodhya Bala Nath during the life time of his first wife Basan Nath, such marriage was void and therefore, she could not be considered as a 'widow' so as to be entitled to inherent the property of Golak Nath. 13. Mr. K.P. Sarma, learned counsel for the respondent, referring to Rule 1 of Section 10 of the Hindu Succession Act contended that when there is more than one widows, all the widows together shall take one share. Meaning thereby, more than one widows can inherit the property of the deceased husband, submits Mr. Sarma. Placing reliance on a decision of the Apex Court in Anurag Mittal Vs. Shaily Mishra Mittal reported in (2018) 9 SCC 691 , learned counsel further submitted that mere incapacity to contract a marriage under the provision of Hindu Marriage Act, does not render the marriage null & void in absence of express provision declaring the marriage as null & void. Further contention of the learned counsel for the respondent is that unless the competent court declares a marriage to be null & void, mere incapacity to contract a marriage, would not render the marriage void, so as to deprive a party from the benefit or the entitlement as consequence of marriage. Further contention of the learned counsel for the respondent is that unless the competent court declares a marriage to be null & void, mere incapacity to contract a marriage, would not render the marriage void, so as to deprive a party from the benefit or the entitlement as consequence of marriage. It was also submitted by the learned counsel for the respondent, that as the marriage between Golak Nath and Ayodhya Bala Nath was not declared by any court to be null & void, she should also be considered as 'widow' of Golak Nath. The argument of the learned counsel does not hold water for simple reason, that Section 11 of the Hindu Marriage Act clearly provided that marriage in contravention of Clauses (i), (iv) and (v) is void ab-initio. The law is well settled that a marriage which is void ab-initio or 'void ipso jure' does not create any right or obligation between the parties which normally arise out of a valid marriage, except when such right is recognized by law. What is however important to note is whether Section 11 of the Hindu Marriage Act, 1955 shall be applicable in the present case. 14. Section 5 of the Hindu Marriage Act reads as follows: "5 Conditions for a Hindu marriage. -A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness 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 (iii) the bridegroom has completed the age of 4[twenty-one years] and the bride, the age of 5[eighteen years] at the time of the 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." 15. Section 11 of the Hindu Marriage Act provides that any marriage solemnized after the commencement of the Hindu Marriage Act, 1955 in contravention of any of the conditions specified in Clause-(i), (iv) and (v) shall be void and nullity. 16. A plain reading of the provision of Section 5 and 11 of the Hindu Marriage Act, 1955 would show, that the contravention of the provision of clauses (i), (iv) and (v) of Section 5 would render a marriage, void, only when such marriage was solemnized after the 1955 Act came into force. Therefore, the provision of Section 11 would not apply in the case of marriage, which was solemnized before 1955 Hindu Marriage Act came into force, inasmuch as, prior to Hindu Marriage Act 1955, bigamy was not prohibited for the Hindus and it was permissible under the Hindu Law for a man to marry more than one wife or a man could marry, though he had wife or wives living. Therefore, more than one widow appearing in Rule 1 of Section 10 of the Hindu Marriage Act, 1955, has to be understood in this context. Section 10 of the Hindu Succession Act provides that in case of more than one widows, all shall take one share jointly, shall apply only in case of 'widow'/widows whose marriage was solemnized before Hindu marriage Act, 1955 came into force. 17. In the present case, evidently from the oral testimony of PW-1, it is clear that her mother Bason Nath predeceased her father Golak Nath and therefore she claimed to have inherited the entire property of Golak Nath. The testimony of the PW-1, the original plaintiff Abala Bala Nath, who was aged about 90 years at the time of adducing evidence in the year 2006, that she was borne before independence and her father Golak Nath died during her early childhood, coupled with the evidence of the DW-2, that Golak Nath had two wives being Ayodhya Nath and Basn Nath clearly show, that Golak Nath married Ayodhya Nath before the Hindu Marriage Act, 1955 came into force. Since the provision of Section 11 of the Hindu Marriage Act, 1955 cannot be invoked in case of marriage between two Hindus, which took place before the Hindu Marriage Act 1955 came into force, the marriage of Ayodhya Bala Nath with Golak Nath during lifetime of his first wife cannot be held to be void, so as to deprive her of the rights and obligation, which must normally arise from a valid marriage. When Ayodhya Bala Nath was the wife and for that matter widow of Golak Nath and the provision of Section 11 of the Hindu Marriage Act does not apply, she certainly would inherit the property left by Golak Nath in equal share with Abala Bala Nath being the daughter of Golak Nath, inasmuch as, the other widow of Golak Nath died before him. Therefore the finding of the learned first appellate court upholding the decree of the trial court that Ayodhya Bala Nath being widow of Golak Nath was entitled to inherit the property left by Golak Nath in equal share with Abala Nath cannot be faulted. Admittedly, Abala Bala Nath gifted 1 bigha 12 lessa land in favour of the Secretary, Bishnujyoti High School. Therefore, her share was reduced by 1B 0K 12 Lessa from the half of the suit property. Ayodhya Nath having inherited half of the property left by her husband Golak Nath and later on having transferred the said land in favour of the defendant Giren Nath by way of gift, Giren Nath acquired valid title on such gifted property. Accordingly, the substantial question of law No. 1 is answered and decided against the appellant/plaintiff. 18. So far as the substantial question No. 2 is concerned, Order VIII Rule 6A clearly provides that defendant in a suit besides contesting the claim of the plaintiff, may set up a counter claim against the claim of the plaintiff. Though a counter claim shall be treated as plaint, the Order 8 Rule 6A does not provide that in all cases, necessarily a counter claim has to be registered as a separate suit. Though a counter claim shall be treated as plaint, the Order 8 Rule 6A does not provide that in all cases, necessarily a counter claim has to be registered as a separate suit. Since the purpose of counter claim is to avoid the multiplicity of the proceeding and the law provided that such counter claim can be raised along with the written statement and the same can be decided along with the suit without registering a separate cross suit, it is not necessary that counter claim has to be tried as a separate suit in all circumstances. It is the discretion of the court to decide, depending on the facts and circumstances of the case, whether a counter claim should be tried as a separate suit or it should be tried conjointly in the same suit. It is no doubt true that if the court feels that the counter claim needs to be tried separately, court may direct to register the counter claim as a separate suit. In view of the above legal position, learned counsel for both the sides fairly conceded that the substantial question No. 2 is not required to be answered. 19. In view of the decision and answer to the substantial questions of law as above, this second appeal appears to be without merit and accordingly dismissed. 20. Send down the LCR.