UMASHANKAR Vs. GULABI BAI

JUDGEMENT

(1.) This order shall govern disposal of the aforesaid two Second Appeals No. 440 & 441 of 2001 filed by the appellants- Umashankar, aggrieved by common judgment and decree dtd. 29/2/2000 passed in Civil Appeal No.7-A/2000 and Civil Appeal No.8-A of 2000, both arising out of judgment and decree dtd. 29/2/2000 passed in Civil Suit No.109-A of 1997.

(2.) The two appeals were admitted on the following substantial question of law:-

(3.) Appellant- plaintiff filed a suit for partition and separate possession against the defendants in respect of property shown in Schedule A, B & C of the plaint on the pleading, inter alia, that Umashankar and defendants No. 1 to 4 are the legal heirs of deceased- Asharam who owned property shown in three Schedules. The plaintiff's case was that defendant No.5- Gulabi Bai was not legally wedded wife of Asharam because she claimed to be the wife of Asharam by virtue of marriage solemnized during subsistence of Asharam's marriage with Rampyari (defendant No.3). According to plaintiff, after death of Asharam, sons and daughters of Asharam, born out of first wedlock with Raghuri Bai and widow and daughter of second marriage with Rampyari alone are entitled to succeed to the property of Asharam. However, Gulabi Bai (defendant No.5), who is not legally wedded wife and her offsprings (defendants No. 6 to 11) are illegitimate children of void marriage and are, therefore, not entitled to succeed to the property of plaintiff -Umashankar. The stated cause of action for filing suit was that defendants No.5 to 11 are asserting their share in the property of deceased -Asharam and, therefore, the plaintiff was required to seek partition and separate possession of the property only amongst the plaintiff and defendant No. 1 to 4.