Karuna Bai vs Parobulin

This appeal has been preferred by the Defendants 1 & 2 under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) questioning the legality and propriety of the judgment and decree dated 24.10.2018 passed in Civil Appeal No.33/2014 by the Third Additional District Judge, Bilaspur (CG), whereby the learned appellate Court, while reversing the judgment and decree dated 25.04.2014 passed by the 4th Civil Judge, Class-2, Bilaspur, in Civil Suit No. 32-A/2013, has decreed the Plaintiffs' claim. Parties of this appeal shall be referred hereinafter as per their description in the Court below.

Briefly stated the facts of the case are that the Plaintiffs instituted a suit claiming declaration of title, partition and separate possession with regard to the plaint Schedule “A & B” properties by submitting, inter alia, that the property in question was the ancestral property, which was obtained by their predecessor-in-interest, namely, Heera, from his father Raru by way of inheritance. It is pleaded further that since the property is the ancestral property, therefore, the registered deed of sale dated 31.05.2008 as executed by Defendant No.1 – Smt. Karuna Bai, widow of Raghunandan (son of said Heera), in favour of Defendant No.5-Tijram Kewat, was null and void and would not confer any right, title or interest upon him.

The aforesaid claim was contested by Defendants and the trial Court, vide its judgment and decree dated 25.04.2014, has dismissed the Plaintiffs' claim by observing, inter alia, that the property in question described in plaint Schedule “A & B” are the self-acquired property of Heera, predecessor-in-interest of the Plaintiffs and, held further that since the property bearing Kh.No.153/31 admeasuring 0.809 hectares was obtained by Defendant No.1 – Smt. Karuna Bai, wife of Raghunandan, in partition, and therefore, the registered deed of sale as executed by her (Smt. Karuna Bai) on 31.05.2008 in favour of Defendant No.5 – Tijram Kewat cannot be held to be null and void.

The aforesaid finding of the trial Court has been reversed by the lower appellate Court in an appeal preferred by the Plaintiffs and while reversing the finding, it was held that said Heera, predecessor-in-interest of the Plaintiffs, had contacted second marriage with Defendant No.6 – Kejhin Bai after the death of his first wife, and therefore, Kejhin Bai is also entitled to obtain a share with regard to the property in question.

Being aggrieved, the Defendants No. 1 & 2 have preferred this appeal, which has been admitted for hearing vide order dated 18.02.2020 while framing the substantial question of law, which reads as under :-

“Whether the first appellate Court is justified in granting share to defendant No.6-Kejhin Bai (second wife of Heera) as by virtue of Section 16(3) of the Hindu Marriage Act, 1955, second wife is not entitled and only an illegitimate child is entitled for share in the property of their parents, by recording a finding which is perverse and contrary to record?”

From perusal of the record, it appears that the lower appellate Court, after considering the evidence led by the parties, arrived at a conclusion that since predecessor-in-interest of the Plaintiffs, namely, Heera had contacted second marriage with said Kejhin Bai, Defendant No.6, after the death of his first wife, therefore, being class-1 heir, she is also entitled to inherit the property left by the said Heera. Since the predecessor-in-interest of the Plaintiffs had married with Defendant No.6 – Kejhin Bai after the death of his first wife, therefore, the lower appellate Court has not committed any illegality in granting share to her also along with other co-sharers of him. Accordingly, the substantial question of law is answered by holding that said Kejhin Bai (Defendant No.6) is also entitled to inherit the property in question.

Be that as it may, during the pendency of this appeal, the Appellants and the legal heirs of said Heera, have arrived at a compromise and have settled their dispute amicably and they, i.e., the Appellants and Respondents No. 1 to 4 and 7 have moved an application (I.A.No.01/2022) as required under Order 23 Rule 3 of CPC praying for passing the decree in terms of the deed of compromise dated 26.09.2022 while furnishing the same as Annexure A/5. Since the parties have arrived at a compromise and have recorded their statements before the Additional Registrar (J), as directed by this Court on 10.11.2022 in accordance with said compromise deed, therefore, I am inclined to dispose of this appeal based upon the said deed of compromise as recorded.

Considering the statements of all the legal heirs of said Heera, predecessor-in-interest of the parties, vis-a-vis, the deed compromise dated 26.09.2022, it is directed that the shares be allotted to the parties as per the said deed of compromise, which shall be the part of the decree. It is made clear that since by virtue of the alleged deed of compromise, Defendant No.6 – Kejhin Bai has not obtained any share, therefore, the Appellants, i.e., Smt. Karuna Bai and Ritesh Kumar based upon their statements are directed to take care and maintain her throughout her entire life, which shall also be the part of decree. It is also made clear that the parties shall be bound by the registered deed of sale dated 31.05.2008 as executed by Smt. Karuna Bai in favour of Defendant No.5 – Tijram Kewat with regard to the property bearing Kh.No.153/31 admeasuring 0.809 hectares, which shall also be the part of the decree.

It is directed further that the Appellants – Smt. Karuna Bai and Ritesh Kumar shall hand over the possession of property in question to Plaintiffs No. 1 to 4, namely, Parobulin, Tijiya Bai, Pushpa Bai and Sunita, within a period of 30 days from today and, which shall also be the part of the decree.

With the aforesaid directions, the appeal is accordingly disposed of.

A decree be drawn accordingly.