Madhya Pradesh High Court
Radheshayam Mandloi vs Udaybai on 2 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 2 nd OF FEBRUARY, 2024
SECOND APPEAL No. 325 of 2014
BETWEEN:-
RADHESHAYAM MANDLOI S/O PYAAR SINGH
MANDLOI, AGED ABOUT 48 YEARS, OCCUPATION:
AGRICULTURIST VILLAGE AKKALBARA, TEHSIL
MANAWAR DHAR / MOHHAMADPUR TEHSIL GOGAWA
KHARGONE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI KULDEEP PATHAK - ADVOCATE FOR THE APPELLANT).
AND
1. UDAYBAI D/O LATE NARSINGH, AGED ABOUT 63
YEARS, OCCUPATION: AGRICULTURIST VILLAGE
MOHHAMADPUR TEHSIL GOGAWA KHARGONE
(MADHYA PRADESH)
2. BALRAM SINGH S/O SHIR DATAR SINGH
RAJPOOT, AGED ABOUT 73 YEARS, OCCUPATION:
AGRICULTURE VILLAGE MOHHAMADPUR
TEHSIL GOGAWA KHARGONE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI PANKAJ KUMAR SOHANI - ADVOCATE FOR THE
RESPONDENTS NO. 1 AND 2)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
T h e present second appeal has been filed being aggrieved by the
judgment and decree passed by the III Additional District Judge, Khargone
dated 03.09.2013 in Civil Appeal No.22-A/2012 by which the judgment and
decree passed by II Civil Judge, Class-II, Khargone, dated 31.07.2012 in Civil
Suit No. 10-A/2011 was modified and the plaintiff/appellant suit for injunction
was dismissed.
2 . In nutshell the appellant/plaintiff case before the trial Court was that
the disputed house situated in village Mohammadpur, Tehsil Gogava, District
Khargone measuring 90 x 30 ft, that 30 x 15 ft open land adjacent to originally
belongs to the deceased Narsingh Rajpoot, who left behind two widows
Jadavbai and Sajanbai after his death on 07.10.2002. Both widows Jadavbai
and Sajanbai partitioned the movable and immovable property of the deceased
Narsingh Rajpoot on 29.09.1975. Second wife Sajanbai became the owner of
the disputed property. First wife Jadavbai after taking her share in partition got
separated. Respondent No.1 Udaibai is the daughter of first wife Jadavbai.
Sajanbai expired on 12.08.2011, but before her death due to certain accident
her feet got fractured and the plaintiff took her to his home. Sajanbai during
her lifetime executed a registered will in favour of appellant plaintiff on
07.10.2002 and by that he got the ownership of the disputed house and is in
possession of the house. Respondents were interfering in his possession so he
filed a suit for permanent injunction.
3. Respondents Udaibai and Balramsingh filed a written statement and
denied all the plaint statements and stated that Jadavbai was the first wife of the
deceased Narsingh Rajpoot and from that wedlock two daughters
Shivkuwarbai and Udaibai were borne. Deceased Narsingh Rajpoot
soleminized second marriage after 18.05.1955, without divorcing the first wife
and, therefore the marriage with the second wife was not a valid marriage and
on that basis second wife has no right on the property of the deceased Narsingh
Rajpoot. The disputed house and land is the ancestral property. The will dated
07.10.2002 does not confer any right on plaintiff as the Sajanbai was having no
legal right to execute the will of the disputed property. The respondent
defendant has also denied the partition between two widows on 29.09.1975 and
the respondent also denied the possession of the plaintiff on the disputed land.
4. The trial Court on the pleadings, framed the issues and recorded the
evidence of the parties decreed the suit of the plaintiffs.
5. Respondents being aggrieved with the judgment and decree filed an
appeal before the Court of III Additional District Judge, Khargone. The first
Appellate Court after hearing the parties reversed the decree regarding
ownership and also amended the decree regarding the injunction and only
granted the relief that plaintiff shall not be dispossessed from the possession of
the disputed house, without following the due process of law. Being aggrieved
with the above judgment, the plaintiff filed this second appeal.
6. Learned counsel for the appellant has argued that trial Court has
decreed the suit and granted the relief of declaration as well as injunction. The
trial Court has properly appreciated the evidence and it was not proved that the
second wife of deceased Narsingh Rajpoot was not legally wedded wife. The
will was executed by the Sajanbai was proved before the trial Court. It was
also proved that both widows of Narsingh Rajpoot have partitioned movable
and immovable property and partition deed Exhibit-P-7 was executed between
them, but the first appellate Court has admitted the appeal and without any
sufficient reasons illegally disturbed the decree passed by the trial Court.
7. Learned counsel for the respondents has supported the judgment and
decree passed by the trial Court. Argued that trial Court has granted the decree
of declaration of ownership of the disputed property that was not prayed by
the plaintiff in his suit and the burden to prove that the marriage solemnized
between the deceased Narsingh Rajpoot and Sajanbai was a valid marriage after
the enactment of Hindu Marriage Act, 1955 on plaintiff as it was not proved and
if that marriage is also proved to be legal as per Hindu Succession Act, 1956
the deceased Narsingh Rajpoot have two daughters, one is the Udaibai and
another one was Shivkuwarbai and as per the Hindu Succession Act, the two
daughters were the legal heirs of the deceased Narsingh Rajpoot and in this
factual situation the movable and immovable property of the deceased can be
partitioned only between two daughters and widows and the maximum what the
widows get was collectively 1/3rd share and 1/3rd share to the first daughter
and 1/3rd share to the second daughter. If any partition has taken place they
are not bounded to that. Thus, in that situation Sajanbai was not competent to
execute the will regarding half of the share of the property. Trial Court has
wrongly decreed the suit. First appellate Court has discussed the fact and
passed the judgment as per the law and no interference is called for.
8. I have gone through the record. It is an admitted position in the case
that the deceased Narsingh Rajpoot got married firstly with the mother of the
respondent No.1 Udaibai in the lifetime of his first wife he remarried with
Sajanbai, from second marriage there was no issue and from the first wife
Jadavbai deceased Narsingh Rajpoot had two daughters, Udaibai and
Shivkuwarbai. Both were got married and after the marriage Shivkuwarbai has
expired .
9. On this issue, the first appellate Court has discussed the fact that the
marriage of Sajanbai was solemnized before the Hindu Marriage Act, 1955 came
into force i.e. prior to 18.05.1955, has not proved, on that basis alone the
deceased second wife Sajanbai have no right on the property of the deceased
Narsingh Rajpoot, as marriage between them has been solemnized after
18.05.1955 in the lifetime of first wife being violation of Section 5 of the Hindu
Marriage Act is void and wife from void marriage cannot claim any right over
the ancestral property of the deceased. Further more, first appellate Court has
also discussed that the will was executed on the basis that the Sajanbai got the
disputed house through partition deed (Exhibit-P-7), but as per Hindu
Succession Act, 1956 deceased Narsingh Rajpoot had two daughters from his
first wife Jadavbai i.e. Udaibai and Shivkuwarbai and deceased Narsingh
Rajpoot expired without executing the will. In that situation, widow would only
get a share jointly and two daughters would have get separate share and thus the
partition deed Exhibit-P-7 is against the provisions of Hindu Succession Act,
1956 and on that basis the respondent No.1 Udaibai was not competent to
execute the will regarding the disputed property.
10. The first appellate Court has also concluded that the plaintiff has not
claimed the relief of declaration of title and that was granted by the trial Court
so it was reversed and regarding the possession it was concluded by the first
appellate Court that the plaintiff is in possession, but it was not proved that he
was having the right to possess the property so the limited injunction was
granted that without following the due process of law the plaintiff shall not be
dispossessed by the respondents.
11. Thus after above discussion, it is clear that no infirmity or perversity
is found in the impugned judgment and, therefore, the appeal is not admissible.
Accordingly, the appeal is dismissed in limine.
12. A copy of this order along with record be sent back to the
courts below for information and its compliance.
(DEVNARAYAN MISHRA)
JUDGE
rashmi
