NIMBAMMA Vs. RATHNAMMA

JUDGEMENT

(1.) THIS revision petition has been listed along with the application for stay. I have heard Sri Jayaprakash Reddy, holding brief for Sri. Jai Kumar Patil, learned counsel for the revision-petitioner and Sri S. V. Prakash, learned counsel for respondent 2 on the merits of revision and do dispose it of.

(2.) ). This revision petition under S. 115 of the Code of Civil Procedure arises from the judgment and order dated 11th December, 1997 delivered by C. Y. Brahmagoudar, Prl. District Judge, Shimoga in Misc. Appeal No. 17/93 affirming the judgment and order of Sri C. S. Malagi, Civil Judge, Junior Division, Sagar in P and Sc. 4/91, dated 9-3-93. The respondent in the revision filed a petition under Section 276 of the Indian Succession Act in the Court of Prl. Civil Judge (Jr. Division), Sagar for grant of succession certificate claiming herself to be a legally wedded wife of deceased-Shekaraiah S/o Murugaiah who was working as Gangman in the Railway Department and was in service till the date of his death that is till 17-12-1989.

(3.) ON notice of the petition, moved by the present respondent, it appears that the revision petitioner also moved a petition and she claimed herself to be the legally wedded wife of deceased-Shekaraiah and alleged herself to be the first wife of Shekaraiah. She further alleged that the present respondent is the second wife. The trial Court considered the evidence and after having held that the present respondent Smt. Rathnamma was the first wife legally wedded to the deceased-Shekaraiah, it further found that the present revision-petitioner after going to Arasalu, developed ill-treatment towards Rathnamma and thereafter started living with revision-petitioner. It held that respondent No. 1 being a legally wedded wife, and the second marriage under law was not permissible and passed an order granting Succession Certificate in favour of Rathnamma the respondent. Feeling aggrieved from that order of the Trial Court, the revision-petitioner filed this Misc. Appeal No. 17/93 and the Prl. District Judge affirmed, the order of the Court below holding that Smt. Nimbamma-appellant before the First Appellate Court and now the petitioner in revision petition, even if she has lived with deceased-Shekaraiah for 15 years and she might have lived with Shekaraiah treating him to be her husband and they were living as husband and wife, but, it observed, that the status of legally wedded wife could not be conferred in the eye of law to the revision-petitioner, because under the provisions of Hindu Law as well as in view of the law as laid down by the Supreme Court in the case of Badri Prasad v. Director of Consolidation, reported in AIR 1978 SC 155 : (1978 All LJ 1010) that when the legally wedded wife a person, like the deceased-Shekaraiah has been alive and there has been no divorce, the second marriage performed by one spouse during the life-time of his or her spouse was null and void and it held that as the first respondent- Rathnamma was alive who is the legally wedded wife of the deceased-Shekaraiah, the second marriage of deceased-Shekaraiah with Nimbamma was void. The Lower Appellate Court after having recorded this finding dismissed the First Appeal and affirmed the order passed by the Court below. As mentioned earlier, I have heard the counsel for the petitioner. It was contended before me by the learned counsel for the petitioner that the order of the Court below and the finding of the Courts below to the effect that Rathnamma was legally wedded wife is based on non-consideration of material evidence and particularly Ex. P 4 as well as failure to consider voters' list in which the revision-petitioner Nimbamma was mentioned as a wife and, therefore, the finding of the Court below and order passed by the Court below was result of illegal and material irregularity in exercising its jurisdiction.