FIRST APPEAL No. 222 OF 1988 Against the judgment dated 29.4.1988 and the decree following thereupon signed on 5.5.1988 by Sri Surendra Prasad Thakur, Subordinate Judge II, Munger in Title Suit No. 39 of 1978. KEDAR HALWAI ………. Defendant/Appellant Versus SACHITANAND HALWAI & ORS. ……… Plaintiffs/Respondents ******** For the Defendant/Appellant : Mr. Anish Chandra Sinha, Advocate For Respondent no. 1 : Md. Bahauddin, Advocate Mr. Najmul Hoda, Advocate For Respondent nos. 2 and 3 : Mr. Achal Kumar Sinha, Advocate Dated : 7th day of October, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo, J. The original defendant-plaintiff namely Smt. Piyari Devi and Smt. Sumitra Devi had filed this First Appeal against the judgment dated 29.4.1988 and the decree signed on 5.5.1988 by Sri Surendra Prasad Thakur, the learned Subordinate Judge II, Munger in title suit no. 39 of 1978 decreeing the plaintiff-respondent no. one’s suit for partition to the extent of half share in the suit property. (2) It may be mentioned here that original appellant no. 1, Smt. Piyari Devi was the mother of appellant no. 2, Smt. Sumitra Devi. Plaintiff-respondent no. 1, Sachitanand Halwai is the husband of original appellant no. 2, Sumitra Devi. Both the appellants named above died during the 2 pendency of the appeal. Earlier, appellant no. 1, Piyari Devi died. Therefore, her name was expunged on the ground that the only daughter is Sumitra Devi who is already on record. Subsequently, Sumitra Devi also died on 21.2.2005. Thereafter, Kedar Halwai filed a substitution application for being substituted in place of Sumitra Devi on the ground that he is the husband of Sumitra Devi. It appears that by terms of order dated 4th July, 2005, the Registrar General passed order in the following terms on the substitution application:- “Subject to objection, if any, to be raised in future on behalf of respondent no. 1, let the heirs stated in I.A. No. 1906 of 2005 be substituted.” The respondent no. 1 thereafter filed objection petition on 11.1.2007 alleging that he is the husband of Sumitra Devi and Kedar Halwai falsely and mala fidely showing himself as husband of Sumitra Devi filed the substitution application, therefore, prayed for rejecting the substitution application. It was directed that the said substitution application shall be considered at the time of hearing of this appeal. I heard the parties on this application also. (3) The plaintiff-respondent no. 1, Sachitanand Halwai filed the aforesaid partition suit claiming half share in the suit building. According to the case of the plaintiff- respondent, the defendant no. 1, Piyari Devi and her husband late Ramdhani Sao through a registered gift deed dated 15.10.1971 gifted the suit building in the name of Sumitra Devi and the plaintiff, Sachitanand i.e. husband of Sumitra Devi. The further case is that after gift, both of them came in 3 joint possession of the house and thereafter, the defendant no. 2 Sumitra Devi sold her half share in the suit house in favour of her mother, Piyari Devi through a registered sale deed. The plaintiff demanded partition of his half share but the defendant no. 1 refuse to partition. Therefore, the suit for partition was filed. (4) The defendants filed joint written statement contending that in fact, plaintiff was married with the defendant no. 2 and after marriage, he was living in the house as Gharjamai. At the instigation of the plaintiff, the defendant no. 2 repeatedly asked for gift of the house property and therefore, Rampiyari Devi and his husband Ramdhani Sao agreed to gift the property i.e. suit house in the name of their only daughter, Sumitra Devi, the defendant no. 2. They also went to the registry office. The plaintiff fraudulently got his name entered in the gift deed. The said gift deed was never scribed at the instance of defendant no. 1 or her husband. The said gift deed is forged and fabricated and it was never acted upon. The plaintiff left Sumitra Devi and married second wife and is living at Sheikhpura. Sumitra Devi married with Kedar Halwai and is living in the suit house. (5) After trial, the learned Court below came to the conclusion that the gift deed is genuine and it was acted upon and the plaintiff has got half share in the property acquired through the gift deed and therefore, decreed the suit for partition. (6) The learned counsel for Kedar Halwai submitted 4 that in fact the plaintiff left Sumitra Devi and went away and married second wife, therefore, Sumitra Devi married with this Kedar Halwai and after marriage, Kedar Halwai was living with Sumitra Devi in the suit house as husband. After her death, he is in possession of the suit house and therefore, he filed application for being substituted. The learned counsel further submitted that the learned Court below has wrongly found the gift deed as genuine. According to the learned counsel, the learned Court below has wrongly decreed the plaintiff’s suit. (7) The learned counsel appearing on behalf of the respondent no. 1 submitted that mere assertion that the deceased Sumitra Devi was married with Kedar Halwai cannot be accepted because the plaintiff is the husband who is alive. Therefore, even if, the case of Kedar Halwai to the effect that he was married with Sumitra Devi is accepted then also, the said marriage is void ab initio and cannot be taken into account. Therefore, by virtue of void marriage, Kedar Halwai will not acquire any right, title in the suit house and therefore, he has no right to be substituted in place of Sumitra Devi. On the death of both the appellants namely Piyari Devi and Sumitra Devi, the appeal will abate because Kedar Halwai has no semblance of title to the suit property. He was only a tenant in the suit premises. So far merit is concerned, the learned counsel submitted that the gift has been exhibited which has been marked Exhibit-1 in the case. According to the learned counsel, the said gift deed was acted upon and therefore, Sumitra Devi sold her half share relying 5 upon the gift to her mother Piyari Devi. The sale deed has been proved by the defendant which has been exhibited in the case. (8) In view of the above facts and circumstances of the case and the submissions made by the parties, the question arises for consideration are: (i) Whether the plaintiff is entitled for half share in the suit house or not on the basis of the gift deed, Exhibit-1. (ii) Whether Kedar Halwai has the right to be substituted in place of Sumitra Devi on the ground that he is husband of Sumitra Devi. (9) The parties have adduced oral as well as documentary evidences. It may be mentioned here that execution of gift deed is admitted by the defendants. The only defence is that Piyari Devi and her husband were intending to gift the suit house to their only daughter, Sumitra Devi but the plaintiff got his name inserted in the gift deed. P.W. 8 is Piyari Devi herself. In her cross- examination, she has admitted that she along with her husband had gone to Registrar of registration. Both of them admitted regarding execution of the gift deed. At that time, their daughter and son-in-law, Sachitanand were also present. Both of them accepted the gift. In view of the said evidence of Piyari Devi herself, the evidence of other witnesses are not so very material. Admittedly, no suit for cancellation of the gift deed was ever filed. On the other hand, Exhibit-F has been filed by the defendants themselves which is registered deed dated 7.1.1972 by which Sumitra 6 Devi, the defendant no. 2 sold half portion of suit house for Rs.10,000 in favour of her mother. In the said sale deed, Exhibit-F, she has clearly admitted that she derived title to the half portion of the house through the registered deed of gift dated 15.10.1971. Therefore, this is the admission by Sumitra Devi, now dead. This sale deed shows that the gift deed was admitted and it was even acted upon. In view of the above discussion, I find that the gift deed is genuine gift deed and it was acted upon. (10) The learned counsel for Kedar Halwai submitted that the learned Court below found that Sumitra Devi had married with Kedar Halwai and Sachitanand also married second wife and therefore, Kedar Halwai is entitled for being substituted in place of Sumitra Devi. So far this submission is concerned, the necessary conditions for a lawful marriage is laid down under Section 5(i) (i) of Hindu Marriage Act is that neither party should have a spouse living at the time of marriage. By virtue of Section 11 of Hindu Marriage Act, a marriage in contravention of the condition laid down under Section 5(i) (i) of Hindu Marriage Act is void ipso jury i.e. void from the very inception. Such a marriage has to be ignored as not existing in the eye of law at all if and when, such a question arises. This is the law laid down by the Hon’ble Supreme Court in the case of Yamuna Bai Anant Rao Adhav vs. Anant Rao Shivram Adhav reported in 1988, Vol. 1 SCC 530. In the present case, Kedar Halwai claimed that he is the husband of Sumitra Devi. It is admitted case that Sumitra Devi was the wife of plaintiff- 7 respondent no. 1. In view of the above well settled principles of law and the provisions as contained in Section 5 read with Section 11 of Hindu Marriage Act, 1955, the so called marriage of Kedar Halwai with Sumitra Devi if any, is void ab initio and therefore, non-existent in the eye of law. In such view of the matter, he has got no semblance of title so far suit property is concerned. I, therefore, find that he is not entitled for being substituted in place of Sumitra Devi. (11) In view of my above discussion, I find that the learned Court below has rightly decreed the plaintiff- respondent no. 1’s suit for partition, holding that the gift deed is genuine and was acted upon. In my opinion, the finding needs no interference. Accordingly, the finding of the learned Court below on this point is hereby confirmed. (12) So far substitution application filed by Kedar Halwai is concerned, it is rejected. (13) In the result, this appeal is dismissed. Patna High Court Dated 7th October, 2010 N.A.F.R./Saurabh (Mungeshwar Sahoo, J.)