IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2242 of 2006 Date of Decision : August 18, 2009 Smt. Kamla and others .....Appellants Versus Smt. Laxmi Devi .....Respondent CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. Munishwar Puri, Advocate for the appellants. Mr. Atul Lakhanpal, Senior Advocate with Mr. R.S. Chahal, Advocate for the respondent. T.P.S. MANN, J. The plaintiff-respondent filed a suit for declaration that mutation No. 2645 sanctioned regarding inheritance of her father-in-law Bhupinder Kumar in favour of defendants No.1 to 4 was illegal and liable to be corrected and that she was entitled to inherit the suit land to the extent of 1/5th share, being legal heir of Niraj Kumar. The suit was decreed and she was held entitled to inherit 1/6th share of the suit land, instead of 1/5th, as claimed by her in the suit. Mutation No.2645, sanctioned in favour of defendants No.1 to 4 regarding inheritance of deceased Bhupinder Kumar, was declared illegal and ordered to be corrected by recording the plaintiff alongwith all the defendants as co-owners of the suit land to the extent of 1/6th share each. Defendants No.1 to 4 were restrained from alienating the suit land on the basis of mutation No. 2645. The judgment and decree passed by learned Civil Judge R.S.A. No. 2242 of 2006 -2- (Senior Division), Fatehabad on October 20, 2005 was challenged by the defendants by filing the first appeal but the same was dismissed by the learned Additional District Judge, Fatehabad on 14.2.2006. Aggrieved of the same, the defendants are now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff-respondent she was married with Niraj Kumar son of Bhupinder Kumar on 26.1.1996. Her husband Niraj Kumar expired on 13.8.1997. Two months later, i.e. 13.10.2007, her father-in-law Bhupinder Kumar also died. Being widow of his pre-deceased son, she was entitled to inherit the property of Bhupinder Kumar to the extent of 1/5th share. At the time of sanctioning of mutation No.2645 in the revenue estate of village Alawalwas, Tehsil Ratia, District Fatehabad, defendants No.1 to 4 concealed the name of the plaintiff as well as defendant No.5, mother of deceased Bhupinder Kumar from the Patwari intentionally and knowingly for illegal gains. Therefore, the plaintiff and defendant No.5 were entitled to inherit the land of Bhupinder Kumar to the extent of 1/5th share each, being his legal heirs and mutation No.2645 sanctioned in favour of defendants No.1 to 4 only was liable to be corrected. In their written statement, all the defendants took preliminary objections about the locus standi of the plaintiff, cause of action, estoppel, time limitation and maintainability of the suit. On merits, they admitted that the plaintiff was widow of deceased Niraj Kumar son of Bhupinder Kumar. They also admitted about the death of Niraj Kumar taking place on 13.8.1997 R.S.A. No. 2242 of 2006 -3- and of Bhupinder Kumar on 13.10.1997. However, according to them, the plaintiff was not entitled to inherit the suit land as she had left the matrimonial home about 15 days before the death of her husband Niraj Kumar. A meeting of the Panchayat was convened by Bhupinder Kumar in which the plaintiff, her brother and her father were also summoned. In the meeting, the plaintiff refused to live with Niraj Kumar as his wife and, therefore, marriage of the plaintiff with Niraj Kumar was dissolved in the Panchayat and all the dowry articles returned to her and her family members. She also agreed that she would not claim any right in the property of Niraj Kumar. Thereafter, the plaintiff never came to the house of her husband and even at the time of his death and, therefore, she was not entitled to claim any right in the property of Niraj Kumar and Bhupinder Kumar. The only issue framed by the trial Court was as to whether the marriage of the plaintiff with deceased Niraj Kumar had been legally dissolved before his death or not as all the other material facts stood admitted by the defendants. While exercising powers under Order XV Rule 3 of the Code, the learned trial Court, after satisfying itself that no further argument or evidence would be required upon the issue framed and no injustice would result from proceeding with the suit forthwith, proceeded to determine the issue so framed. Holding that the marriage of the plaintiff with Niraj Kumar was not dissolved by a decree of divorce passed by the Court but had been dissolved in the Panchayat, learned trial Court held that the said dissolution of marriage had no value in the eyes of law and, therefore, it could not be R.S.A. No. 2242 of 2006 -4- recognized by the Court. Accordingly, the suit was decreed, as mentioned above. Learned counsel for the defendants-appellants submitted that after the framing of issue, learned trial Court did not grant any opportunity of hearing to any of the parties and, therefore, the judgment and decree was liable to be set aside and the matter required to be remanded back for fresh decision. Learned counsel for the respondent submitted that the defendants had already admitted the facts mentioned in the plaint regarding the relationship between the parties and also the death of Niraj Kumar and Bhupinder Kumar. The only issue which remained to be decided was as to whether the divorce before the Panchayat was valid or not. By relying upon the provisions, as contained in Section 13 of the Hindu Marriage Act, 1955 learned Courts below rightly held that the marriage was never dissolved by any decree of Court. Admittedly, plaintiff Laxmi Devi was married to Niraj Kumar on 26.1.1996. Said Niraj Kumar died on 13.8.1997. Some time before his death, a Panchayat was said to have been convened by Bhupinder Kumar, wherein the marriage of the plaintiff with Niraj Kumar was dissolved. Section 13 of the Act clearly states that any marriage solemnized before or after the commencement of the Act may, on a petition presented by either of the parties to the marriage, be dissolved by a decree of divorce on the various R.S.A. No. 2242 of 2006 -5- grounds mentioned therein. Under Section 13-B of the Act, the marriage could also be dissolved by mutual consent. However, the dissolution of the marriage would follow the filing/presentation of the petition by either of the parties to the marriage to the district court. The Panchayat, said to have been convened by Bhupinder Kumar, father-in-law of the plaintiff-respondent, was not competent to dissolve the marriage between the plaintiff and her husband Niraj Kumar. Once it is held that the divorce granted by the Panchayat was not valid and for which there was no evidence required to be led by any of the parties, the defendants cannot be now heard saying that the marriage of the plaintiff with Niraj Kumar stood dissolved and, therefore, she was not entitled to the share in the property of Bhupinder Kumar, being widow of his pre-deceased son Niraj Kumar. The concurrent findings arrived at by the learned Courts below, are neither perverse nor they suffer from any illegality or infirmity. None of the substantial questions of law, as formulated by the appellants, arise for consideration. The appeal is, accordingly, dismissed. ( T.P.S. MANN ) August 18, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO