R.S.A. No. 1757 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.M. No. 5119-C of 2009 & R.S.A. No. 1757 of 2009 (O&M) Date of Decision : 20.5.2009 Bimal Kaur & another .......... Appellants Versus Joginder Kaur ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. A.K. Chopra, Sr. Advocate with Mr. Girish Kumar, Advocate for the appellants. Mr. M.S. Sachdeva, advocate for the caveator / respondent. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5119-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for exemption from filing certified copy of the judgment and decree of the learned trial Court. For the reasons stated in the application, C.M. is allowed, the filing of certified copy of the judgment and decree of the learned trial Court dated 3.3.2007, is ordered to be dispensed with. R.S.A. No. 1757 of 2009 & C.M. No. 5120-C of 2009 This regular second appeal is directed against the judgment and R.S.A. No. 1757 of 2009 2 decree dated 12.3.2009, passed by the learned Courts below vide which suit filed by the plaintiff / appellants seeking declaration, that the plaintiffs were owner in joint possession to the extent of 2/3rd share of property bearing No. 1541, Urban Estate, Phase-II, Jalandhar and the property situated at village Maqsoodpur, Tehsil Nadala, District Kapurthala as also the agricultural land situated at village Maqsood, Tehsil Bhullath, District Kapurthala, stands dismissed. The plaintiffs brought a suit for declaration and joint possession on the pleadings, that plaintiff No. 1 was legally wedded wife of Jagir Singh from whose loin plaintiff No.2 was born, therefore, it was claimed, that they were entitled to 2/3rd share by way of inheritance of the property of Jagir Singh as Joginder Kaur first wife of Jagir Singh was entitled to 1/3rd share. The suit was contested, wherein the relationship of plaintiff / appellants with Jagir Singh was denied. It was pleaded that she was merely appointed as servant for looking after Jagir Singh. The plaintiffs led evidence and produced sisters of Jagir Singh in witness box to prove that Bimal Kaur was in fact widow of Jagir Singh as they had married. In view of the stand taken by defendant, that Jagir Singh was not capable to consummate to have a child, because of ailment with which he was suffering. While leading evidence, stand was changed by plaintiff / appellants that Gurkamal Singh was adopted son of Jagir Singh having been R.S.A. No. 1757 of 2009 3 taken from orphanage. It is also pertinent to note here that the application moved under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint was dismissed. The basis for claiming share by Bimal Kaur was that under the Hindu Succession Act the word used is “more widows than one” and therefore all the widows are entitled to equal share. This contention was primarily raised on the ground that the Hindu Marriage Act, which bars second marriage by a Hindu, came into force in the year 1955 whereas the Succession Act was enacted in the year 1956, therefore, the subsequent Act was to prevail over the Act of 1955. The plea raised stands rejected by the learned Courts below by holding that there was no inconsistency between the two Acts. The word “widows” in 1956 Act deals with the marriages performed before coming into force of Hindu Marriage Act. The second marriage after the enforcement of Hindu Marriage Act, 1955 was not permitted. The learned Courts below rightly held that she could not claim herself to be widow of Jagir Singh to claim inheritance. The plea of the appellants, therefore, was rightly rejected by the learned Courts below. The evidence produced to prove adoption was beyond pleading and, therefore, could not be looked into. Thus, the learned Courts below also rightly held that the plaintiff No.2 was not entitled to any share in the property by way of inheritance. The property was to be inherited by defendant, being widow of Jagir Singh i.e. Class I heir. R.S.A. No. 1757 of 2009 4 The learned senior counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law :- 1. Whether the judgment and decree passed by the learned Courts below is contrary to Section 10 of the Hindu Succession Act and, therefore, is perverse ? 2. Whether the learned Courts below misread the documentary evidence to hold that the plaintiff No.1 / appellant was not widow of Jagir Singh ? In support of the substantial questions of law the learned senior counsel appearing on behalf of the appellants vehemently contends, that the learned Courts below misinterpreted Section 10 of the Hindu Succession Act, which reads as under :- “10. Distribution of property among heirs in class I of the Schedule.- The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules :- Rule 1.- The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3.- The heirs in the branch of each pre- deceased son or each predeceased daughter of the intestate shall take between them one share. Rule 4.- The distribution of the share referred to in rule 3:- (i) among the heirs in the branch of the pre- R.S.A. No. 1757 of 2009 5 deceased son shall be so made that his widow ( or widow together ) and the surviving sons and daughters get equal portions; and the branch of his pre-deceased sons gets the same portion; (ii) among the heirs in the branch of the pre- deceased daughter shall be so made that the surviving sons and daughters get equal portions.” The contention of the learned senior counsel for the appellants is that all the widows are entitled to share the property in equal share. Therefore, once it was proved that plaintiff No.1 was legally married wife of Jagir Singh, she was also entitled to equal share under Section 10 of the Hindu Succession Act. This contention of the learned senior counsel for the appellant deserves to be rejected as plaintiff No.1 cannot be treated to be wife of Jagir Singh as admittedly the alleged second marriage was performed after coming into force of Hindu Marriage Act, which bars the marriage during the life time of his spouse. Admittedly, the defendant was alive at the time when the alleged marriage had taken place rather case set up by the plaintiff / appellants was that Jagir Singh had married her with consent of defendant / respondent. The contention raised cannot be accepted as the learned Courts below rightly held that she could not be treated to be legally wedded wife to claim inheritance being widow. The contention deserves to be rejected in view of the law laid R.S.A. No. 1757 of 2009 6 down by the Andhra Pradesh High Court in the case of Mallipeddy Seshaish (died ) & Anr. Vs. Nadendla Tulasamma (d9ed) & Ors. 2005(3) Civil Court cAses 147 (A.P.), wherein the Hon'ble Andhra Pradesh High Court has been pleased to lay down that second wife is not entitled to any property, and it is only the first wife who is entitled to all properties when there is no other survivor. On the second substantial question of law the learned senior counsel for the appellants contends that the learned Courts below have wrongly held that the plaintiff to be not wife of Jagir Singh, though, documentary evidence i.e. ration card and voter list as well as sisters of Jagir Singh were examined to prove her marriage. This contention of the learned Senior counsel for the appellants is totally misconceived. The learned Courts below have non-suited the plaintiff / appellants for want of proof of marriage but by holding that the marriage was void as Jagir Singh had living spouse at the time of second marriage. No challenge can be made to the rejection of claim by plaintiff No.2 as the plea of adoption was beyond pleadings. The second substantial question of law raised are answered against the appellants. No merit. Dismissed. 20.5.2009 ( VINOD K. SHARMA ) 'sp' JUDGE