97 4 RSA Nc11730f1986 1 IN THE 141GH COURT OF PUNJAB AND HARYANA AT CHAND1GARH RSAN011730f1986 Date ofdecision 06092010 Smt Sarti died throughlegal Appellant 0 versus I Manglaandothers D Respondents I CORAM 1eHONBLE MRJUSTICE KCOURI Z Presentl Mr JaswantJain Advocate for theappellant C Mr Mani Ram Verma Advocate for the c8 ICCPUR V This is a regularsecondappealdirectedby Z againstthejudgment dated 1A 1986passedbyShri NKJain District Judge Narnaul vide which the appealpreferredby the plaintiffagainstthe and decree dated l 121982 passedby Shri BSSharma Sub JudgeIst Class was accepted Manglahas flled the suit for declarationto the effect that he lS owner of 5112 share in the suit land and for permanentinjunction to restrain the defendantsfrom interfering with his possessionin respectoftlle land as mentioned in the plaintand situatedat villageBadhra Tehsil and District Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 98 RSAN0 1173 0f1986 2 It has been averred by the plaintiff that he had other brothersnamelyAmar Chand and Hira Sarti is the widow 1 He furtherstatedthat the defendantsNo 2 to 10 are the sons and J of Amar Chand and Sarti defendantsNo 11 to 12 are the sisters of the plaintiffAfter the deathof his brotherHira on 27A 1979 defendantsNo l 5 and 8 to 10 got a mutationsanctionedwith respectto the suit property in 1 their favour illegallywrong against facts and not bindingupon him being 0 based upon fraud and In fact they had no concem with the propertyof Hira as theywere widow and son and of Amar CD Chand The Collector also wronglyaffirmed the order of the Assistant Collector which is also bad ln the eyes oflaw Z Defendant No11 Sarupiadmitted the claim of the plaintiff 2 However defendantsNo 1 5 8 to 10 contestedthe case and allegedthat defendantNo 1 was widow of Hira and defendantsNo and 8 to 10 were c8 son and of Hira and defendantNo1 So the mutationhad been properlysanctioned in their favour Theyalso allegedthat Sarti was also Z called by the name of Manbhari Denyingother averments theyprayed or Llm dismissalofthe suit Followingissueswere framedl 1Whether plaintiffilS a coowner in possession to the extent of5112 sharein the suit land as alleged2 OPP 2 Whether the mutation No 1174 dated 2911 1978 is null and void againstfactsand not bindingon theplaintiffand on theprofonnadefendantsas alleged2 OPP 3 Whether defendant Nol 1S widow and defendantsNo 5 and 8 to 10 are son and daughters of deceasedHira and are only legal of Hira deceased as alleged2 OPP Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 99 0 0 RSAN011730f1986 3 Il 4 Whetherthe plaintiffhas no locus standi to Ole the suit2OPD 5 Whether the suit is not maintainable in the present OPD 6 Whether theplaintiffis estopped from filingthe presentsuit by his act andconduct7OPD 7 Whether the defendantsare entitledto specialcosts2OPD 1 8 Relief 0 Both the partieshave led their respectiveevidence on the aforesaidissues D A8er perusalof the evidenceand hearingthe learned counsel I for the partiesthe learned trial Court dismissed SUlt of the plaintiffvide Z judgmentand decreedated 1121982a Feelingdissatisfied with the judgmentand decree dated Lr 1 21982 the preferred appealbefore the First Appellate I c25 Court The said appeal was heard and accepted by Shri NJainDistrict JudgeNamaul vide judgment and decree dated1A 1986 m7 Z Feelingdissatisfled with the judgmentand decree dated r 1A1986 passedby Shri N1CJain learned District Judge Namaul have preferred thepresentregularsecondappeal I have heard leamed counsel for the partiesand have gone through the recordsofthe case with their help Learned counsel for theappellanthas subinittedthat caseofthe plaintiffas set forth in theplaintis thatHira Singhwas unmarriedand died issueless The First AppellateCourthas givena Ondingof fact that Sarti enteredinto karewa marriage with Hira and Satbir Krishana Munni and Bedo are the children of Salappellantfrom the loins of Hira Thus the Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 400 1 RSAN 1173 0f1986 4 8ndingrecorded by the the First AppellateCourt that there was legal marnage betweenHira and Sarti is without any basis The t by both the Courts below that Satbir Krishana Munni and Bedo are the children ofHira Oom theunion ofHira and Sarti is wrong That flndingis resulted due to and the evidence on the flle 1 C Both the Courts below haveignoredthe evidence 0 0 of character ExD3 is the birth certificateof the son from Hira ExD4 1S the discharge certificate of Hira from the Indian army From the perusalof the said documents it 1S crystalclear that Manbhari alias Sarti is thelegallyweddedwife ofHira Smtujani DWl9 real Slster Z ofHira has statedon oath that Manbhari is thelegallywedded wife ofHira 2 and four children have born out of the wedlock of Hira and Sani namely I Satbir Krishana Munni and Bedo Sarti has appeared as her own witness c8 as DW2 Sarti has also examined her real brother Risal Singhwho has am7 also deposedabout the of Sarti with Hira and about their Z children DW4 Sheo Narain has also statedthat Sarti the niece of this Ll lS witness and has married to Hira and also deposed about their DW5 Siri Chand has also supported thecase ofthe defendant Learned counsel for the appellanthas hIrther submittedthat both the Courts below havenot consideredthe fact thatillegitimate children ofvoid andvoidable marriage are entitledto inheritanceofthe parents The inheritanceof Hira 1S 111 questionSatbir is the son Krishna Munni and Bedo are the daughtersof Hira So theyalongwith Sarti are entitled to Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 401 RSA No11730f1986 5 inheritanceof Hira Learned counsel for the appellanthas further that simpliciter suit for declaration without seekingthe relief of possession 1S not maintainable Both the Courts below havenot considered this aspectof thecase Learned counsel for theappellant hasfurther submittedthatthe 1 tX First Appellate Court hasmisreadthe evidence on the file 0 t In supportof his case leamed counsel for the has I relied upon authorities Hero Vinoth IMinorl VS Seshammal l200615 I SupremeCourt Cases 545 and Rattan Dev VS Pasam Devi 1200217 SupremeCourt Cases 441 Z Learned counsel for the has rther submittedthat t followingsubstantial questions of law arisein this case for 1Whether and decree passedbythe Lower c8 Appellate Court basedupon ofevidence1S sustainablein the eyes of law 2 2 Whether in Vlew of Section 34 of the SpecificRelief Act Z simpliciterSUit for declarationwithout seekingthe relief of possessionis maintainable 3 Whether the Lower AppellateCourt could have decreed the SUit of the without settingaside the flndingsrecordedbythetrial Court Whether the who had lived for a sufficient longperiodwith Hira Singhgave birth to four children out ofthat cohabitationwould be consideredto be wife of Hira even 111the absence of dissolution of her marriagewith Amar Singh In replyto the above notedsubmission learned counsel for the respondent has supported thejudgmentand decree of the First Appeilate Court It is submittedthat there 1S findingof fact recordedby both the Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 402 RSA No11730f1986 Courts below that Sarti is not the legallywedded wife and that SatbirSinghKrishana Muni and Bedo are the illegitimate children of Hira It is submittedthat thoughthe case of the is that Hira was unmarried but in view of the well reasoned flndingof fact recorded by the First AppellateCourt the of the plaintiff cannotbechallengedin theregularsecondappeal It is further submittedthat plaintiffin para Nol of the plaint 0 has pleaded that suit propertywas jointHindu familypropertyof deceased I Hira his brother Amar Chand and plaintiffMangla The contents of para D No l have been admitted So the nature of the propertyas joint Hindu familycoparcenarypropertyhas been admitted by the defendants A fact Z admittedneed notto be proved Since SatbirKrishanaMunni and Bedo 2 t have been held to be illegitimate children of Hira and as such in view of I authority Jinia Keotin and others VS Kumar Sitaram Manihi and 025 others 1200311SupremeCourt Cases 730theyare not entitled to inherit a the propertyof Hira as the propertyis joint Hindu familycoparcenary Z Qm proper I have given my thoughtfulconsideration to the rival submissionsmadebyboth the learnedcounselfor theparties The main controversyin the presentlis is whether Sarti is the Iegallyweddedwife of Hira and that Satbir Krishana Munni and Bedo are the legitimatechildren of Hira and Sarti 2 Both the Courts below have returneda flndingof the fact that Sarti lS not the legallywedded wife of Hira and respondent Nosl to 4 are illegitimate children ofHira and Sarti That beinga findingoffact cannot be interferred The First Appellate Court Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 403 RSAN011730f1986 7 has dealt in all the evidence on the file The main of the is on the testimony of real sisterof Hira ie DH Smt Sujani This witness has statedthat Amar Chand and Sarti were mauied and five children have born out of this wedlock consisting of three sons and two She has further deposed that about 25 years ago her brotherAmar Chand had left the housedue to his mental ill function Her statement was recordedon 5111981 So we go back by25 years in that 0 0 Clrcumstance Amar Chand left the house in the year 1956 This Witness I further stated that 34 years thereafter Sarti has entered into Karewa D I marriagewith Hira So according to her statement the karewa of Hira and Sarti has taken placein the year 195960 AD ie afler the enforcementof Z Hindu Succession Act It is nobodys case that Sarti getdivorce from Amar C3 Chand prior to marriagewith Hira So 111 these circumstances the I documentary evidence Ex4 does not helpthe case of the appellant to a prove the fact that marriageof Sarti with Hira was legal as the said Pl documentsimplyprovedthat Manbhari has been shown as wife of Hira It Z does not mention about the validityof the said marriageThe findingof both the Courts below to the effect that Satbir Krishana Munni and Bedo are the illegitimate son and of Sarti and Hira thus standsprovedfrom the evidence producedby Sarti herselt So I have no hesitation 111 holdingthat both the Courts below have not committedany error to arnve at the conclusion that Sarti is not the legally wedded wife of Hira and that Satbir Krishana Munni and Bedo are children ofHira and Sarti No doubt the First AppellateCourt has read Exl7 as birth certificate of Dharam Pal but 111 fact the said Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 404 S RSAN011730f1986 8 documentis a death certiflcate of Dharam Pal son of does not makeany difference so far as the status of marriage Sartiis concerned Another evidence which leads towards the fact that marriage between Sarti and Hira was not valid are the documentsExP 4 andExD3 From theperusalof ExlO it is revealedthat a son was born 1 to Hira on 281958 However from the perusalof ExP4 it is revealed 0 that a son was born to Amar Chand on 25 1960 So from these 0 I documents it is clear that Sarti gave a birth to the son of Amar Chand on CD 251960 and priorto that a son hasalreadybom to her on 281958 from Hira Z The counsel for the appellant could not pointout any other 2 evidence which has been misread and by both the Courts below regarding ofSarti andHira c8 Another objectionhas been taken by the counsels for the appellantthat without settingasidethe findingof the trial Court theappeal Z could not be acceptedThat argumentis also without any substance In Qm fact the findingof of Hira and Sarti has been affirmed bythe First AppellateCourt The only which now left to be determinedis regarding Section 16 ofthe Hindu Marriage Act In order to properlyappreciate the said contention the relevant section is reproduced as under 16 Legitimacyofchildren ofvoid and voidable marriagese 6l9 that marriageis null and void under sectlOIl 11 any child of such marriagewho would have been legitimate if the marriagehad been valid shall be legitimate Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 405 S RSANo 1173of 1986 whethersuch child is born beforeor commencement of the MarriageLaws Act 1976 668of 19769 3 andwhether or not a decreeofnullityis granted in respectof thatmarriageunder this Act and whetheror not themaniage1S heldto be void otherwisethan on a petitionunder this Act 629 Where a decreeof nullityis granted in respectof a voidable m t under section 12 any child begottenor conceived 0 beforethe decreeis made who would have been the legitimate I child oftheparties to themarriage ifat the date ofdecree it had 0 been dissolved insteadof beingannulled shall be deemedto I betheir legitimate child the decreeof nullity Z Sr 639 Nothingcontainedin sulsection 61Jor sulsection 629shall L beconstrued as conferringupon any child of a marriagewhich I null and void or which is annulled by a decree of nullity 1S c8 undersection 12 any rightsin orto thepropertyof any persot m otherthan the parentsin any case where but for thepassingof Z thisAct such child would havebeen incapable of or C1 acquiringany such rightsby reason of his not beingthe legitimate child ofhis parents From readingof Section 16 clause 619and 629of the Hindu Marriage Act it is clear that illegitimatechildren are entitled to inherit the property of the parentsas legitimate children The trial Court by applying the said principles dismissed the SUit of the plaintiff However the First Appellate Court byapplyingorder 16 Rule 3 CPC hasacceptedtheappeal The plaintiffin para No l of the plainthas pleadedthat suit Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 406 RSA No11730f1986 10 1 was jointHindu familypropertyofHira and his two brothers That facthas been admitted in the written statement A fact admitted in the written statement need not to be provedHowever there is observationof this Court in one case that if theplaintiffallegedthat suit propertyis joint Hindu FamilyCoparcenarypropertyand that fact is denied in the written statement and in case the defendant while appearing as his own witness 1 admitted the nature of the propertyas coparcenary propertyin that case 0 0 plaintiffhas to prove the nature of the propertyas joint Hindu Family property irrespectiveof admission of the defendants However the facts of the presentcase are different as the plaintiffhas pleadedthatpropertywas jointHindu familypropertyand that fact hasbeen Z admitted in the written statement by the contesting tX So the law regarding coparcenarypropertyhas been settled by the Apex Court in authority Jinia Keotin and others case lprall that authority c8 it hasbeenheld that children born out ofvoid and voidable marriage are not entitledfor sharein jointHindu Family property So in these Z circumstances the illegitimatechildren of Hira are not entitled for inheritancein view ofthe said authority Another objection hasbeentakenbythe learned counsel for the appellantto the effect that a simpiicitersuit for declaration 1S not maintainablein view ofSection 34 ofthe Specic ReliefAct However that objection cannot be accepted as the case of the plaintiffnow respondent 1S thatplaintiffisowner in possession ofthe suit propertybeinga cosharerand as 5112 share in the whole khatta Here the questionis onlyregardingthe share of the plaintiffwhether it is 113 or 5112 share Everycosharer Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 407 RSA No11730f1986 11 1 would be deemed to be in of whole of the land to the joint khatta So the abovesaid objection also cannot be maintained In view of the above discussion all the substantialquestionsof law mentionedabovestanddeterminedagainsttheappellant theappealis without any merit andthe same standsdismissed m A copy of this judgmentbe sent to the trial Court for strict 0 0 compliance t 6ICCPURI9 JUDGE Gl4 2010 Z Sv 1 2 I c8 Va2 Z r1 l Batra Amit Sh. Charanjit Batra 2012.05.22 15: 32 True Scaned Copy of Orignal PHHC, Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document