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Telangana High Court
Smt. P. Kalavathi vs Smt. P. Lakshmi And Anr on 16 April, 2026
Author: K. Lakshman
Bench: K. Lakshman
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HON'BLE SRI JUSTICE K. LAKSHMAN
AND
THE HON'BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY
C.M.P. No. 11472 of 2003
IN/AND
APPEAL SUIT No. 999 of 2003
Date: 16.04.2026
Between:
P. Kalavathi and two others ..... Appellants
and
Smt. P. Lakshmi and another ..... Respondents
COMMON JUDGMENT:
(Per Hon'ble Sri Justice Vakiti Ramakrishna Reddy)
This Appeal Suit is filed by the Appellants/Defendants against
the Judgment and Decree dated 04.06.2002 in O.S. No. 39 of 2000 on
the file of the Family Court at Secunderabad, whereby the suit filed by
the plaintiffs against the defendants for declaration and for recovery of
possession of the Plaint Schedule Property, came to be decreed in
favour of the plaintiffs.
2. It is pertinent to note that along with the present Appeal, the
Appellants/Defendants have also filed a Civil Miscellaneous Petition
vide C.M.P. No. 11472 of 2003 in A.S. No. 999 of 2003, invoking
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Order XLI Rule 27 of the Code of Civil Procedure, seeking
permission to adduce additional evidence namely, the Will Deed dated
29.03.1998 and the other connected documents.
3. For the sake of convenience and clarity, the parties shall
hereinafter be referred to as per their status before the Trial Court.
I. Brief Facts:
4. The plaintiff No.1 is the legally wedded wife of late P. Venkata
Swamy, their marriage having been solemnized on 09.05.1965 at
Kazipet as per Hindu rites and customs. Late P. Venkata Swamy was
employed as a Painter in the Railways, he retired from service on
31.05.1998, and subsequently died on 29.08.1999. During his life
time, he nominated the plaintiff No.1 to receive his pensionary
benefits, and she is presently receiving family pension from South
Central Railway. The plaintiff No.2 is the daughter of late P. Venkata
Swamy. She is married and residing with her husband. Upon the
intestate death of late P. Venkata Swamy, the plaintiffs succeeded to
his estate, including the residential house bearing Plot No.10 at
Mettuguda.
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5. It is the case of the plaintiffs that on 29.08.1999 i.e., the very
date of death of late P. Venkata Swamy, the defendants trespassed into
the suit schedule property claiming that the defendant No.1 was the
second wife of the deceased. It is further alleged that the defendants
unlawfully occupied a portion of the said house property, which was
earlier vacant, and continued in possession without any lawful
entitlement, while the plaintiffs remained in occupation of another
portion and a further portion was let out to tenants.
6. In the above circumstances, the plaintiffs filed the suit in
O.S.No.39 of 2000 on the file of learned Family Court at
Secunderabad seeking: (i) a declaration that the alleged marriage, if
any, between the defendant No.1 and late P. Venkata Swamy is illegal,
null and void, and (ii) recovery of vacant and peaceful possession of
the plaint schedule property consisting of two rooms with open space.
The plaintiffs also sought damages for use and occupation at the rate
of ₹800/- per month from the date of the suit till delivery of
possession, along with costs.
7. In reply to the plaint averments, the defendants filed their
written statement inter-alia denying all the allegations made by the
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plaintiffs and contending that the marriage of Defendant No.1 with
late P. Venkata Swamy was solemnized on 03.03.1968 as per Hindu
rites and caste customs in the presence of elders from both families. It
is further stated that the defendant No.1 and late P. Venkata Swamy
lived together as husband and wife at H.No. 12-8-264/1/C,
Allugaddabavi, Secunderabad and were blessed with three children.
According to the defendant No.1, late P. Venkata Swamy married her
with the consent of his first wife, as she had no issues with the said
marriage.
8. The defendant further contended that late P. Venkata Swamy
had executed a Will during his lifetime, initially providing for equal
distribution of his properties among his daughters and subsequently
executing another Will directing that his youngest daughter, A.
Nagasree, perform his last rites and that his self-acquired properties be
divided into three equal shares among his three daughters, with
pensionary benefits were to be shared by both wives after his death.
On these grounds, the defendant denied the liability for damages and
sought dismissal of the suit.
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II. ISSUES FRAMED BY THE TRIAL COURT:
9. Basing on the above pleadings, the trial Court framed the
following issues for trial:
1. Whether the plaintiff No.1 is the legally wedded wife of late Venkat
Swamy?
2. Whether the plaintiff No.1 and 2 are entitle for damages for use
and occupation of suit schedule property @ Rs.800/ p.m. from the date of
Suit till the possession is delivered to them by the defendant?
3. Whether the marriage between the defendant and late Venkat
Swamy is illegal as alleged by the plaintiff.
4. Whether the defendants are illegal occupants of two rooms portion
of the suit schedule house.
5. To what relief?
III. EVIDENCE:
10. During the course of trial, Plaintiff No.2 was examined as PW-2
and no documentary evidence was adduced on behalf of the plaintiffs.
11. On the other hand, on behalf of the defendants DWs 1 to 8 were
examined and Exs. B1 to B15 were marked.
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IV. FINDINGS OF THE TRIAL COURT:
12. The learned Trial Court, upon careful appreciation of oral and
documentary evidence on record, held that the marriage between the
plaintiff No.1 and late P. Venkat Swamy was admitted and subsisting
till the date of his death. The learned Trial Court further held that
even according to the version of the defendant No.1, her alleged
marriage with late P. Venkat Swamy, was solemnized during the
subsistence of the first marriage. Consequently, the said marriage was
held to be void under Sections 5(1) and 11 of the Hindu Marriage Act,
1955 (for short 'the Act'). However, by applying Section 16 of the
Act, the learned Trial Court held that the children born through the
defendant No.1 would be treated as legitimate and entitled to succeed
to the property of late P. Venkat Swamy, while declaring the marriage
of the defendant No.1 with late P. Venkat Swamy as null and void and
granted relief accordingly.
13. Being aggrieved by the order dated 04.06.2002 passed by the
Trial Court, the Appellants/Defendants have preferred the present
Appeal.
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V. SUBMISSIONS OF THE PARTIES:
A) Contentions of the Appellants/Defendants:
14. The learned counsel for the Appellants/Defendants contended
that the Trial Court failed to frame proper and necessary issues. In
particular, framing of Issue No.1 relating to the marital status of the
plaintiff No.1 was wholly unnecessary, as the appellants never
disputed that the plaintiff No.1 was the legally wedded wife of late P.
Venkata Swamy. The consistent case of the appellants was that the
Defendant No.1 married late P. Venkata Swamy with the consent of
plaintiff No.1, owing to the absence of children for several years. It
was further contended that Issue No.3 was vaguely framed, referring
only to "the defendant" despite there being three defendants, thereby
showing non-application of mind.
15. It is submitted that the Trial Court failed to frame a vital issue
as to whether late P. Venkata Swamy died intestate, as claimed by the
plaintiffs, or whether he executed a Will, as pleaded by the
defendants. It was also contended that the suit itself was not
maintainable before the Family Court, as the reliefs sought were
beyond the jurisdiction conferred under the Family Courts Act.
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According to the appellants, the suit was, in substance, one for
recovery of possession, camouflaged with a prayer for declaration of
marital status after an inordinate delay of nearly 38 years.
16. The learned counsel for the Appellants/Defendants contended
that the suit for declaration was barred by limitation and not
maintainable on facts, in view of the oral and documentary evidence
establishing that the Defendant No.1 was treated as the second wife of
late P. Venkata Swamy from 1968 onwards by the family and society.
The appellants contended that the Trial Court erred in relying solely
on the testimony of PW.1, the daughter of late P. Venkata Swamy
through the plaintiff No.1, who was not competent to depose on the
marital status of the Defendant No.1.
17. It is also contended that in the absence of a specific prayer or
specific pleadings, the Trial Court exceeded its jurisdiction in
adjudicating the legitimacy of Defendants Nos.2 and 3. The finding
that the suit schedule property was ancestral was assailed as being
contrary to the plaint averments, which described the property as self-
acquired by late P. Venkata Swamy, was not supported by any
documents. The appellants further contended that the Trial Court erred
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in construing the suit as one for partition and in adopting an erroneous
method of notional division, resulting in a perverse decree.
18. On the basis of the aforesaid submissions, the learned Counsel
for the appellants, has prayed that, there being merit in the appeal, the
same may be allowed.
B) Contentions of the Respondents/Plaintiffs:
19. Per contra, the learned counsel for the Respondents/Plaintiffs
contended that the marriage between plaintiff No.1 and late P. Venkat
Swamy was solemnized on 09.05.1965 as per Hindu rites and customs
and continued to subsist until his death on 29.08.1999. It was
submitted that during the subsistence of the said valid marriage, late P.
Venkat Swamy could not have performed a second marriage and,
therefore, any alleged marriage set up by defendant No.1 is void ab
initio under Sections 5(1) and 11 of the Hindu Marriage Act, 1955.
D.W.1 herself has admitted that the first marriage was subsisting at the
time of the alleged second marriage.
20. The Respondents/Plaintiffs further contended that the defendant
No.1 entered into possession of the suit schedule property only after
the death of late P. Venkat Swamy, without any lawful right, title, or
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interest, and that the plaintiffs, being the lawful heirs, were entitled to
seek recovery of possession. It was urged that the suit was
maintainable as the declaration regarding marital status was necessary
to decide the rights of parties over the property and to prevent false
claims by the defendants.
21. It was also contended that the Trial Court rightly applied
Sections 5, 11, and 16 of the Hindu Marriage Act and did not commit
any error in appreciating the evidence on record or in granting relief. It
was submitted that the defendants failed to prove the execution of any
Will by late P. Venkat Swamy and, therefore, the finding that he died
intestate was proper.
22. On the basis of the aforesaid submissions, the Learned Counsel
for Respondents has prayed that, there being no merit in the present
appeal, the same deserves to be dismissed.
VI. POINTS FOR DETERMINATION:
23. Having heard the learned counsel appearing for the respective
parties and having carefully examined the material placed on record,
the following point arises for determination in this Appeal:
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(i) Whether the impugned judgment and decree suffers from
legal or factual infirmities warranting interference by this
Court?
(ii) Whether the appellants have made out a case for
reception of additional evidence under order XLI Rule 27 CPC
in C.M.P. No. 11472 of 2003?
VII. ANALYSIS AND FINDINGS:
24. We have carefully considered the rival submissions advanced
by the learned counsel for the Appellants/Defendants and
Respondents/Plaintiffs and also perused the entire record of the case,
including the pleadings, oral evidence of PW1 and DWs 1 to 8 and the
documentary evidence under Exs.B1 to B15.
(i) C.M.P. No. 11472 of 2003:
25. At the threshold, this Court finds that the
Appellants/Defendants have filed C.M.P. No. 11472 of 2003 seeking
permission of this Court to receive the Will dated 29.03.1998 executed
by late P. Venkata Swamy and another document styled as a "Caution
and Request Document" dated 09.02.1993, on record, as additional
evidence.
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26. The Defendants submitted that the said documents have a direct
and substantial bearing on the issues relating to the nature of
succession, entitlement to the suit schedule property, and sharing of
pensionary benefits, which form the very foundation of the relief
granted by the Trial Court.
27. The Defendants submitted that the aforesaid documents could
not be produced before the Family Court as they were not in their
custody during the pendency of the suit. It is stated that late P.
Venkata Swamy had entrusted the Will and connected documents to
his relative, who passed away in or about March 2002. Only
thereafter, in June 2002, the documents were traced and handed over
to Defendant No.1 by her cousin, who was unaware of their existence
till then. Thus, the Defendants came into possession of the documents
only after disposal of the suit, and therefore, there was no deliberate or
negligent omission in producing them at the trial stage.
28. This Court has carefully considered the pleadings in the Civil
Miscellaneous Petition, the affidavit filed in support thereof, and the
objections raised by the respondents. The additional documents sought
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to be received, namely the Will deed dated 29.03.1998 and the
Caution and Request Document dated 09.02.1993, are documents of
considerable evidentiary value, as they particularly deal with the
succession to the suit schedule property and the distribution of
pensionary benefits of late P. Venkata Swamy.
29. The submission and reasons stated by the Defendants for non-
production of the said documents before the Trial Court are found to
be plausible and convincing. The Defendants have consistently stated
that the documents were not in their custody or knowledge during the
pendency of the suit and were traced only after the disposal of the suit,
upon the demise of the person with whom the documents were
entrusted by the testator himself. There is nothing on record to suggest
any willful suppression, negligence, or lack of due diligence on the
part of the appellants in not producing the alleged documentary
evidence before the Trial Court.
30. This Court is also of the considered view that refusal to receive
the said documents would result in serious prejudice to the
Defendants, as the Trial Court proceeded on the footing that late P.
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Venkata Swamy died intestate, a finding which forms the very basis
for the impugned decree. The Will deed will have a direct impact and
would materially alter the rights of the parties. Therefore, the
documents sought to be produced are not only relevant but also
necessary for a just and effective adjudication of the appeal.
31. In view of the above, this Court holds that the requirements for
reception of additional evidence stand satisfied. Accordingly, C.M.P.
No. 11472 of 2003 is allowed, and the Will deed dated 29.03.1998 and
the 'Caution and Request Document' dated 09.02.1993 are received
on record as additional evidence, subject to proof in accordance with
law.
(ii) Validity of alleged second marriage:
32. In the present case, the existence and validity of the marriage
between Plaintiff No.1 and late P. Venkata Swamy are not in dispute.
The said marriage was solemnized on 09.05.1965 as per Hindu rites
and customs and continued to subsist until the death of late P. Venkata
Swamy on 29.08.1999. This fact stands admitted by the defendants
themselves and is further corroborated by documentary evidence,
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including the nomination made by late P. Venkata Swamy in favour of
Plaintiff No.1 for receipt of pensionary benefits, pursuant to which she
continues to receive family pension. There is no pleading or evidence
on record to show that the marriage between Plaintiff No.1 and late P.
Venkata Swamy was dissolved in accordance with law.
33. The case of Defendant No.1 is that she married late P. Venkata
Swamy on 03.03.1968 with the consent of Plaintiff No.1, as Plaintiff
No.1 had no surviving issue at that time. Hence, it is clear that the
alleged second marriage was performed during the subsistence of a
valid first marriage. The plea of consent of the first wife cannot, by
itself, confer legality upon a marriage that is otherwise prohibited by
statute.
34. Section 5(i) of the Hindu Marriage Act, 1955 (for short 'the
Act') mandates that a Hindu marriage can be solemnized only if
neither party has a living spouse at the time of marriage. This
condition goes to the very root of the validity of the marriage. Section
11 of the Act further provides that any marriage solemnized in
contravention of the condition prescribed under Section 5(i) of the Act
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shall be null and void. The statute thus leaves no scope for recognizing
or validating a second marriage contracted during the lifetime of a
legally wedded spouse.
35. In the context of the present case, the admitted subsistence of
the first marriage squarely attracts the bar under Sections 5(i) and 11
of the Act. Long cohabitation, social recognition, or the fact that the
parties lived together for several years cannot cure the inherent
illegality of a marriage that is void ab initio under the statute. Equally,
the alleged consent of Plaintiff No.1, even if assumed, has no legal
sanctity in the face of the express statutory prohibition against
bigamy.
36. Therefore, applying the settled legal position to the facts on
record, this Court holds that the alleged marriage between Defendant
No.1 and late P. Venkata Swamy is void in the eyes of law and does
not confer upon Defendant No.1 the status of a legally wedded wife.
The Trial Court has correctly appreciated both the material facts and
the statutory provisions in declaring the said marriage as illegal, and
the finding recorded on this aspect calls for no interference.
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(iii) Right of the Defendants No.2 and 3 in the Plaint Schedule
Property:
37. The plaint schedule property is a house bearing Plot No.10 at
Mettuguda, Secunderabad. In the plaint itself, it is specifically pleaded
that late P. Venkata Swamy purchased the said house during his
lifetime, thereby describing it as his self-acquired property. There is
no pleading anywhere in the plaint that the property was ancestral in
nature. Equally, no documentary evidence was adduced by the
plaintiffs to establish that the suit schedule house was ancestral
property or part of any joint family.
38. Despite the specific pleadings, the Trial Court proceeded to
hold that the plaint schedule property was ancestral and embarked
upon an exercise of notional partition. Such a finding is wholly
inconsistent with the pleadings and unsupported by evidence. It is a
settled principle that the nature of property must be determined strictly
on the basis of pleadings and proof, and a court cannot assume the
character of property contrary to the admitted case of the parties. The
Trial Court, therefore, committed an error in treating the self-acquired
property of late P. Venkata Swamy as ancestral.
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39. Further, the Trial Court failed to consider the specific plea of
the defendants regarding the execution of a Will by late P. Venkata
Swamy. The defendants consistently asserted that late P. Venkata
Swamy executed a Will bequeathing the house property in favour of
his children and making provision for sharing pensionary benefits
between both the wives. The Trial Court, without framing any issue
on testamentary succession and without properly examining the
evidence, proceeded on the erroneous assumption that late P. Venkata
Swamy died intestate. Such an approach has vitiated the findings
relating to succession and shares.
40. The Will dated 29.03.1998, executed by late P. Venkata
Swamy during his lifetime, unequivocally provides that the house
property shall devolve equally upon his three daughters, namely the
plaintiff No.2 and Defendants Nos. 2 and 3, each being entitled to one-
third share. The said Will also separately provides for sharing of
pensionary benefits between the two wives, thereby clearly
demarcating succession to immovable property from service benefits.
Once a valid testamentary disposition governs the parties, the question
of applying notional partition does not arise.
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41. The entitlement of Defendants Nos. 2 and 3 each to one-third
share, flows directly from the Will and is independent of the marital
status of Defendant No.1. Even assuming that the marriage of
Defendant No.1 was void, the legitimacy of Defendants Nos. 2 and 3
stands protected under Section 16 of the Act, and their right to inherit
the property of their father cannot be denied. The Trial Court,
therefore, erred in ignoring the Will and in resorting to a notional
division of shares contrary to the express intention of the testator,
rendering the impugned findings on succession unsustainable.
42. In view of the above, this Court holds that the findings of the
Trial Court relating to the nature of the plaint schedule property,
intestate succession, notional partition, and allocation of shares are
legally unsustainable and the plaintiff No.2 and Defendants Nos. 2 and
3, are entitled to one-third share in the Plaint Schedule Property by
virtue of the Will Deed executed by father of plaintiff No.2 and
defendant Nos.2 and 3. Accordingly, the findings of the Trial Court on
this issue are set aside, and the appeal deserves to be allowed to that
extent.
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(iv) Findings beyond Pleadings and Jurisdiction:
43. This Court finds that the Trial Court has erred in stepping
beyond the pleadings of the parties and the reliefs sought in the plaint.
The underlying suit was filed primarily for declaration of marital
status and for recovery of possession of the suit schedule property.
There was no specific prayer nor any pleading seeking partition or
determination of shares in the suit property. In spite of the same, the
Trial Court had adjudicated upon the notional partition, which was
wholly unwarranted and impermissible in law.
44. It is a settled principle that a Court cannot grant relief or record
findings on issues which were neither pleaded nor prayed for by the
parties. By determining questions relating to ancestral nature of the
property, notional partition, and apportionment of shares, the trial
Court exceeded its jurisdiction and effectively converted a suit for
declaration and possession into one for partition, without affording the
parties an opportunity to lead evidence on such aspects. Such an
approach has resulted in prejudice to the defendants and vitiates the
impugned judgment.
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45. The Honourable Apex Court in Akella Lalitha v. Konda
Hanumantha Rao and Another 1 observed as follows:
"16. Coming to address the second issue, while this Court is
not apathetic to the predicament of the Respondent grandparents, it
is a fact that absolutely no relief was ever sought by them for the
change of surname of the child to that of first husband/son of
respondents. It is settled law that relief not found on pleadings
should not be granted. If a Court considers or grants a relief for
which no prayer or pleading was made depriving the respondent of
an opportunity to oppose or resist such relief, it would lead to
miscarriage of justice.
17. In the case of Trojan & Co. Ltd. v. Rm.N.N. Nagappa
Chettiar, this Court considered the issue as to whether relief not
asked for by a party could be granted and that too without having
proper pleadings.
The Court held as under: -
"It is well settled that the decision of a case cannot be based
on grounds outside the pleadings of the parties and it is the case
pleaded that has to be found. Without an amendment of the plaint,
the Court was not entitled to grant the relief not asked for and no
prayer was ever made to amend the plaint so as to incorporate in it
an alternative case."
18. In the case of Bharat Amratlal Kothari v. Dosukhan
Samadkhan Sindhi held:
"Though the Court has very wide discretion in granting
relief, the Court, however, cannot, ignoring and keeping aside the
norms and principles governing grant of relief, grant a relief not
even prayed for by the petitioner."
2022 SCC Online SC 928
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46. Applying the above principle to the present case, this Court
holds that the findings and reliefs granted by the Trial Court beyond
the pleadings and prayers are legally unsustainable and liable to be set
aside.
47. Further, the Trial Court failed to appreciate the limits of its
jurisdiction. It is well settled that reliefs not specifically prayed for
cannot be granted merely on the basis of evidence or incidental
observations, particularly when such reliefs involve substantive civil
rights. The Trial Court, by granting findings on notional partition
clearly acted contrary to the mandate of Order VII Rule 7 CPC,
thereby travelling beyond both the pleadings and the relief clause of
the plaint.
48. The consequence of such an error is not merely procedural but
goes to the root of jurisdiction, as the defendants were deprived of an
opportunity to contest a relief that was never sought. The impugned
findings, therefore, suffer from legal infirmity and cannot be sustained
in law. Accordingly, this Court holds that the Trial Court erred in
granting reliefs not specifically claimed, in violation of Order VII
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Rule 7 CPC, and the findings rendered beyond the scope of the
pleadings are liable to be set aside.
VIII. CONCLUSION:
49. In view of the foregoing discussion, this Court is of the
considered opinion that there is no infirmity in the findings of the
Trial Court insofar as the validity of the alleged marriage is
concerned. The marriage claimed by Defendant No.1 with late
Venkata Swamy is held to be void in law, as it was contracted during
the subsistence of a prior valid marriage. Consequently, the said
marriage does not confer any legal or matrimonial status upon
Defendant No.1 under law and the said finding is hereby affirmed.
Likewise, the conclusion of the Trial Court rejecting the claim for
damages/mesne profits is also found to be well founded, as the
plaintiffs failed to establish exclusive possession or unlawful
occupation by the defendants. The said finding does not call for any
interference and is accordingly upheld.
50. However, with regard to the rights in the plaint schedule house
property, this Court finds it necessary to modify the judgment of the
Trial Court. While the Trial Court correctly recognized the entitlement
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of Defendants Nos.2 and 3 to residence and maintenance, it erred in
not giving full effect to the testamentary disposition governing the
property. In view of the Will Deed dated 29.03.1998, which
specifically provides for the devolution of the house property upon the
children, this Court holds that Defendants Nos.2 and 3 are entitled
each to a one-third share in the Plaint Schedule property, as
bequeathed under the Will Deed. To the said extent, the judgment and
decree of the Trial Court stands modified, while the remaining
findings are confirmed.
IX. RESULT:
51. For the reasons recorded above, C.M.P. No. 11472 of 2003 is
allowed. Consequently, the Appeal Suit is partly allowed. The
Judgment and Decree dated 04.06.2002 in O.S. No. 39 of 2000 on the
file of the Family Court at Secunderabad is hereby set aside only
insofar as the determination of rights in the plaint schedule property is
concerned. The finding of the learned Trial Court holding that the
alleged marriage of Defendant No.1 with late P. Venkata Swamy is
invalid is affirmed. The rejection of the claim for damages/mesne
profits is also confirmed. However, the Judgment and Decree is
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modified to the extent that Defendants Nos.2 and 3 are each entitled to
a one-third share in the plaint schedule property, in terms of the Will
dated 29.03.1998. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, in this
Appeal shall also stand closed.
_________________
K. LAKSHMAN, J.
__________________________________
VAKITI RAMAKRISHNA REDDY, J.
Date: 16.04.2026
AS
