Mangya vs Rama

J.K. Jain, J.—THIS second appeal under Section 100 of the Code of Civil Procedure is filed against the judgment and decree passed by ADJ, Susner, District Shajapur in Civil Appeal No. 49/2013 on 17.05.2014 whereby the judgment and decree passed by Civil Judge, Class-I, Susner in Civil Suit No. 8-A/2013 on 23.08.2013 has been affirmed.

Brief facts of this case are that plaintiff filed a suit for partition claiming 1/3rd share in the agricultural holdings which is an ancestral property.

The defendants resisted the suit on the ground that the plaintiff''s mother was kept of Amraji. Thus, plaintiff''s father was illegitimate child of Amraji and he has no right in coparcenary property of the defendants. Therefore, plaintiff cannot claim partition. It is also pleaded that the plaintiff has sold his share to defendant No. 1 by a Deed (Ex. D/3) and in absence of all the necessary parties, suit is not maintainable.

The Trial Court decreed the suit. The appeal filed by the appellant/defendant No. 1 has been dismissed by the impugned order. Therefore, the appellant has filed this second appeal.

Learned Senior Counsel for the appellant submits that the following substantial questions of law are involved in this appeal:--

"(i) Whether, an illegitimate child is entitled for any share in the ancestral property?

(ii) Whether, the Courts below rightly interpreted the provisions of Section 16 of the Hindu Marriage Act, 1955 and in decreeing the suit on that basis?

(iii) Whether, in view of Ex. D/3, the possession of the appellant is protected under the provisions of Section 53-A of Transfer of Property Act?

(iv) Whether, the plaintiff, though legally not competent to sell the property, but had sold equivalent to 1/3rd land, can maintain suit for partition?

(v) Whether, in absence of necessary parties, the suit for partition is maintainable?"

Per contra, learned counsel for the Respondent No. 1 submits that all the objections have already been considered by the Courts below and no substantial question of law is involved in this appeal.

After hearing learned counsel for the parties, perused the records.

The first question for consideration is that whether the appellant''s father Bheruji was illegitimate child or legitimate child of Amraji?

Though the appellant in the written statement raised a plea that the grand-mother of Respondent No. 1 was kept of Amraji. In the cross-examination the appellant himself admitted that Amraji has two wives, from first wife two sons, namely, Kalu (father of appellant) and Bhima and from second wife Bheruji (plaintiff''s father) were born. From this admission it is proved that the plaintiff''s grand-mother was a second wife of Amraji.

Undisputedly during the subsistence of first marriage, a second marriage has been solemnized by Amraji. As per the provisions of Section 16 of the Hindu Marriage Act, 1955, the children born from void or voidable marriage shall be legitimate children. Thus, plaintiff''s father Bheruji was legitimate child of Amraji. The plaintiff claiming share in Amraji''s property through his father Bheruji. Bheruji born from second wife of Amraji is entitled for equal share in the coparcener property (suit land). For this purpose, I would like to refer the judgment of this Court reported in the case of Rajesh Vs. Keshar Singh and Others, (2012) 1 MPJR 24 , in which in para 13, it is held as under:--

"13........................................................ Under Section 16 of the Hindu Marriage Act, 1955, the children born from the void or voidable marriage shall be the legitimate children and thus second defendant Babu and the daughters of Keshar Singh namely Mamta and Pankti being the children of first defendant Keshar Singh from second wife Kanchan Bai shall be his legitimate children. Although the second marriage of first defendant Keshar Singh is void because during the subsistence of his first marriage, he solemnized second marriage with Kanchan Bai. In that regard, Section 5(i) and 11 of Hindu Marriage Act, 1955 may be seen. The first legally wedded wife of defendant Keshar Singh namely Sampat Bai who is the mother of plaintiff is still alive."

Now I have considered the document Ex. D/3. This document is executed by the Respondent No. 1 in favour of appellant. The learned first appellate Court held in para 36 of the impugned judgment that this document does not intend to sell the land, even the identity of the land is uncertain. In any case the ownership in immovable property cannot be transferred through such unregistered deed. Thus, the appellant cannot get any advantage of the provisions of Section 53-A of the Transfer of Property Act.

There is no pleading in the written statement of appellant that the Respondent No. 1/plaintiff had already sold the land equivalent to his 1/3rd share in the land. Therefore, no issue framed and no evidence led in this regard. Thus, such plea cannot be considered at the stage of second appeal.

According to the appellant every person, to whom the land prior to filing of the suit was sold, are necessary party.

The suit for partition is filed for the existing land and all the coparceners were made party. It is not the case of the plaintiff that the land which is transferred/sold prior to filing of the suit may also be included. In such circumstances there is no force in the arguments of learned Senior Counsel for the appellant that all the necessary parties were not joint in the suit.

In view of the above, I am of the considered view that the Courts below have properly appreciated the evidence on record and reached the correct conclusion and this conclusion is binding on me as a second appellate Court. The question of fact raised by appellant does not call for any interference. No substantial question of law is involved in this appeal. Consequently, appeal fails and is hereby dismissed in limine. No costs.