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Judgment
T.P. Sharma, J.—By this second appeal u/s 100 of the Code of Civil Procedure, 1908 (for short CPC). the appellants have challenged the legality and propriety of the judgment S. decree dated 24.3.1996 passed by the Additional District Judge, Jashpurnagar, in Civil Appeal No. 37-A/91, reversing the judgment & decree dated 29.6.1989 passed by the Civil Judge Class-II, Jashpurnagar, in Civil Suit No. 36A/87, whereby the Civil Judge Class-II has decreed the suit in favour of the present appellants and respondent No. 1. The present second appeal was admitted on 12.4.96 on the following substantial question of law:-
Whether appellants No. 2 & 3, who are the daughters of appellant No. 1, who is the second wife of Ram Briksh, have a share in the suit property in view of Section 16 of the Hindu Marriage Act?
As per pleading of the parties, property was owned by one Ram Briksh. As per claim of the appellants, appellant No. 1 was wife and appellants No. 2 & 3 were daughters of Ram Briksha. Respondent No. 1 was not relative of Ram Briksh who has executed sale deed in favour of respondents No. 3 and 4 namely, Shiv Nandan Bhagat and Jal Ram Bhagat. The appellants have filed civil suit for declaration of title, declaration of sale deed null and void executed by respondent No. 1 and recover of possession. By filing written statement, respondent No. 1 has denied the adverse allegation made in the plaint and has specifically pleaded that appellant No. 1 was never married to Ram Briksh and appellants No. 2 & 3 were not daughters of Ram Briksh. After providing opportunity of hearing to the parties, the Civil Judge Class-II, Jashpurnagar has arrived at a finding that respondent No. 1 was first wife of Ram Briksh and appellant No. 1 was second wife of Ram Briksh and appellants No. 2 and 3 were daughters of Ram Briksh and has decreed the suit in favour of the appellants and respondent No. 1 Same was challenged before the lower appellate Court and by reversing the judgment S decree of the trial Court the lower appellate Court, has dismissed the suit, in which the lower appellate Court has held that appellant No. 1 was keep of Ram Briksh and was not legally weeded wife of Ram Briksh.
I have heard learned counsel for the parties, perused the judgment & decree impugned, judgment & decree of the trial Court and records of the Courts below.
Evidence adduced on behalf of the parties, especially the evidence of appellant/plaintiff Nirmain Bai (PW-1) clearly reveals that she was married to Ram Briksh and at the time of her marriage respondent No. 1 was residing with Ram Briksh. Other evidence is also sufficient to establish the fact that respondent No. 1 was first wife of Ram Briksh and during subsistence of first marriage with respondent No. 1 Ram Briksh has solemnized second marriage with present appellant No. 1.
As per evidence of the appellant/plaintiff, which has not been rebutted by respondent No. 1, appellants No. 2 and 3 were daughters of appellant No. 1 through Ram Briksh. This evidence is sufficient to prove the fact that appellant No. 1 was not legally wedded wife of Ram Briksh, but appellants No. 2 and 3 are illegitimate daughters of Ram Briksh, but in terms of Sections 5, 11 and 16 of the Hindu Marriage Act, 1955 marriage of appellant No. 1 with Ram Briksh was void, therefore, appellants No. 2 and 3 are legitimate daughters of Ram Briksh in accordance with Section 16 of the Hindu Marriage Act, 1955. Appellants No. 2 & 3 and respondent No. 1 are entitled for possession of the suit property. Respondents No. 3 and 4 namely, Shiv Nandan Bhagat and Jai Ram Bhagat are bonafide purchaser.
Consequently, substantial question of law formulated for the decision of this appeal is decided as positive. On the basis of decision on substantial question of law formulated for decision of this appeal, the appeal deserves to be allowed and it is hereby allowed. Judgment & decree of the lower appellate Court are hereby set aside and judgment & decree passed by the Civil Judge Class-II, Jashpurnagar are hereby modified on following terms:-
(i) Appellants No. 2 & 3 and respondent No. 1 are declared Bhumiswami of the suit property.
(ii) Sale deed executed by respondent No. 1 in favour of respondents No. 3 and 4 namely, Shiv Nandan Bhagat and Jai Ram Bhagat is not binding upon appellants No. 2 and 3.
(iii) Appellants No. 2 and 3 are entitled to recover the possession of the suit property from respondents No. 3 and 4 after expiry of six months from today.
(iv) If respondents No. 3 and 4 namely, Shiv Nandan Bhagat and Jai Ram Bhagat file suit for general partition with consequential relief for allotment of land purchased by them to respondent No. 1, then appellants No. 2 and 3 shall not be entitled to recover the possession within such period.
Parties shall bear their own costs.
Advocate fee as per schedule. Decree be drawn accordingly.