RSA No. 1525 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1525 of 1985 Date of decision:- 30.11.2011 Smt. Bhagli ...Appellant Versus Parbhati and others ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Dinesh Sharma, Advocate for the appellant Mr. Mahipal Singh, Advocate for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI J (Oral) This regular second appeal is against the judgment and decree dated 27.10.1984 passed by the learned Additional District Judge, Rohtak, whereby the appeal filed against the judgment and decree dated 20.04.1983 passed by the Senior Sub Judge, Rohtak, has been dismissed. Smt. Bhagli appellant/plaintiff was married to Parbhati respondent No.1-defendant according to Hindu rites. Three daughters were born from the wed-lock. Out of them, only one daughter namely Kishni is alive and is now married. There was no male issue. Prabhati married to another lady namely Smt. Savitri respondent No.2/defendant. A male child RSA No. 1525 of 1985 -2- namely Sanjay, defendant/respondent No. 3 was born from the second marriage. Smt. Bhagli filed a suit for declaration that the second marriage was null, void and against the provisions of Hindu Marriage Act. A permanent injunction had also been sought restraining Prabhati from interfering in the possession of the plaintiff over the aforementioned land already given to the plaintiff. The suit was contested by the defendants. It was admitted that Parbhati married Smt. Bhagli plaintiff some fifteeen years back according to Hindu rites. It was also admitted that Smt. Kishni, daughter from that wed-lock, is alive and is married to one Wattan Singh. Prabhati has also admitted his second marriage with Smt. Savitri and has admitted that a son namely Sanjay was born out of this wedlock. However, it was denied that the marriage was performed after the passing of Hindu Marriage Act. It was further denied that the plaintiff was given any land for her maintenance by way of family arrangement. On 13.11.1980, the following issues were framed by the trial Court:- 1. Whether the second marriage performed by defendant No. 1 with Smt. Savitri is valid? OPD 2. Whether defendant No. 1 had given the land mentioned in para No. 6 of the plaint to the plaintiff by way of family settlement? If so, whether plaintiff is still in its possession and to what effect? OPP 3. Relief. On issue No. 1, the trial Court gave a finding that defendants RSA No. 1525 of 1985 -3- have failed to show that the second marriage, which they admit, was performed before the enforcement of the Hindu Marriage Act,1955 and is valid in the eyes of law. So, the issue was decided against the defendants and in favour of the plaintiff. On issue No. 2, after examining the entire evidence, the trial court has held that it was not established that any land was given to the plaintiff by way of family settlement or that plaintiff was still in possession of it. In the jamabandi 1973-74 (Ex.P1) relied upon by the plaintiff herself, the land is recorded to be ownership and khud-kast of Parbhati. No khasra girdawari has been brought on the file to show that the land was under cultivation of Smt. Bhagli. Mahender Singh (P.W.2) deposes in cross- examination that a writing to this effect was executed before the village Panchayat. No writing has been brought on the file nor anyone from the village Panchayat has been examined to show that this was done. A complaint was made by Smt. Bhagli to the Army authorities about the maltreatment at the hands of Parbhati. The matter was investigated by the Police. In the statement made before the police in that enquiry, he had stated that he had given four to five killas of land to Smt. Bhagli and this was also corroborated by the Sarpanch (Ex. PQ/1) and the member Panchayat (Ex. PQ/3). Parbhati while appearing in witness box has denied that he has given any such statement before the Police. This statement has not been duly proved as Head Constable was not cross-examined. The statement RSA No. 1525 of 1985 -4- before the police does not carry value in the civil litigation even if these statements had been proved to be recorded. This issue was decided against the plaintiff and in favour of the defendants The trial Court partly decreed the suit of the plaintiff and a declaration was given that second marriage contracted by Prabhati, defendant No. 1 with Smt. Savitri defendant No. 2 was illegal and void.The son from the wedlock named Sanjay defendant No. 3 has no right to succeed to the property of Prabhati, defendant No. 1. However, the prayer for permanent injunction was declined. Feeling aggrieved, both plaintiff and defendants filed appeal against the judgment and decree dated 20.04.1983 of the trial Court. However the lower Appellate Court had accepted the appeal of Parbhati and others. The Lower Appellate Court has held that the trial Court fell in error in casting issue No. 1 in such a manner so as to put the burden of proof about the validity of marriage in question upon the defendants. Since the plaintiff had come to the Court with the version that the second marriage was celebrated about 18 years back and not earlier to the commencement of the Act, hence, it was up to her to establish the truth of her allegation. The Lower Appellate Court has reversed the finding on issue No. 1 and held that the second marriage of Prabhati with Savitri is legally valid. The Lower Appellate Court has affirmed the finding on issue No. 2. It has further been held that the declaration given by the learned trial Judge that Sanjay RSA No. 1525 of 1985 -5- defendant No. 3 has no right to succeed to the estate of Parbhati appears to have been granted under misconception of law. Assuming that the marriage of Parbhati with Bhagli is void even then in view of the provisions of Section 16 of the Act, the child born of such marriage will be legitimate child and shall have at least right to to inherit the property of his parents. This issue was decided against the plaintiff and in favour of the defendants It was held that it was highly improbable that any settlement would have been made regarding the transfer of rights of cultivation in the land by Prabhati for securing maintenance for her daughter who had been married long back and who is happily residing with her husband, Vatan Singh P.W.3. The appeal filed by Smt. Bhagli was dismissed by the lower Appellate court. Learned counsel for the appellant has framed following substantial question of law:- (1)“Whether the second marriage solemnized by respondent No.1/defendant No. 1 with respondent No. 2/defendant No. 2 after the commencement of Hindu Marriage Act, 1955, is declared to be void, being performed during the existence of First Marriage of respondent No. 1/defendant No. 1 with appellant/plaintiff? (2)Whether the suit for permanent injunction be allowed in favour of the appellant/plaintiff and against the respondents/defendants, when the possession of the said land was himself voluntary given by respondent No. 1/defendant No. 1 to appellant/plaintiff?” RSA No. 1525 of 1985 -6- As far as first question is concerned, the lower Appellate Court has held that second marriage of Prabhati with Savitri had taken place more than 28 years prior to the institution of the suit. It has been further held that plaintiff's version as PW1 is quite close to the version of Dws, in this respect. The marriage had thus taken place before 1955 i.e before the commencement of the Act. So, this findings of fact is based on evidence and thus, requires no interference. On the second question, the plaintiff has miserably failed to lead any evidence to show that she was in cultivating possession of 6 killas of land which was given to her by her husband for the maintenance. No other evidence was led to enable the Court to return any finding which has been affirmed by the lower Appellate Court. No substantial question of law arises for adjudication by this court. Accordingly, R.S.A is dismissed. 30.11.2011 ( RITU BAHRI ) G.Arora JUDGE