Darbari vs Chait Kunwar Bai And Ors

@JUDGMENT-JUDGMENT

Sanjay K. Agrawal, J

Proceedings of this matter have been taken up through video conferencing.

Heard on admission and formulation of substantial question of law in this second appeal preferred by defendant No. 1 under Section 100 of CPC. By the impugned judgment and decree, the first appellate Court reversed the judgment and decree of the trial Court dismissing the suit of the plaintiffs.

Mr. Prafull N. Bharat, learned counsel for the appellant/defendant No. 1 would submit that though marriage of defendant No. 1's mother with Trilochan was not solemnized, yet he will the illegitimate child for the purpose of Section 16 of the Hindu Marriage Act, 1956 and thereby, he is also entitled to succeed the property of Trilochan, as such, the first appellate Court is absolutely unjustified in reversing the judgment and decree of the trial Court holding that the suit as framed and filed by the plaintiffs is barred by limitation, therefore, the appeal be admitted and substantial question of law be framed for determination.

Plaintiffs are the children of Trilochan (born from his first and second marriage) whereas defendant No. 1 claimed that he is the son of Trilochan as Trilochan kept his mother Devkunwar Bai as his wife, therefore, he would also succeed the property of Trilochan.

In the suit filed by the plaintiffs, learned trial Court held that defendant No. 1, also, is the son of Trilochan, but in the appeal, learned first appellate Court reversed that finding recorded by the trial Court.

The Madhya Pradesh High Court, in the matter of Reshamlal Baswan v. Balwant Singh Jwalasingh Punjabi1, has clearly held that children born to married woman from illicit relationship are not entitled to benefit under Section 16 of the Hindu Marriage Act and benefit under Section 16 is available only where there is marriage that is hit by Section 11 of the Hindu Marriage Act.

In the instant case, the principle of law laid down by the Madhya Pradesh High Court in Reshamlal Baswan (supra) would squarely attract and the provisions contained under Section 16 of Hindu Marriage Act would not apply as it is admitted position on record that no marriage took place between Trilochan and Devkunwar Bai i.e. mother of defendant No. 1. Therefore, the first appellate Court was absolutely justified in 1 1994 MPLJ 446 holding that defendant No. 1 would not succeed the property of Trilochan being his illegitimate son with no marriage at all between Trilochan and his mother Devkunwar Bai. Similarly, the suit filed by the plaintiffs cannot be held to be barred by limitation as the order dated 31/03/1981 passed by the S.D.O. and affirmed by the Commissioner on 31/03/1982 was challenged by the plaintiffs by way of filing the suit on 11/03/1983 and consequently, that suit cannot be held to be barred by limitation as within one year from 31/03/1982 the suit was filed from which this appeal has arisen.

Consequently, I do not find any merit in this second appeal. It deserves to be and is hereby dismissed in limine without notice to the other side. No cost(s).