BIBBE Vs. RAM KALI

JUDGEMENT

(1.) THIS appeal arises in the following circumstances. The plaintiff -respondents filed a suit for Partition of a house situate in Karta Chand Khan old City, Bareilly. They claimed 2/3rds share in the said house and also claimed payment of damages. The house belonged to one Ram Swarup who died on 5 - 11 -1967. The plaintiff No. 1 claimed to be the widow of Ram Swarup. The plaintiff No. 2 and the defendant No. 1 were said to be his daughters. It was said that Ram Swarup did not leave behind any other heir except the plaintiffs and the defendant No. 1. The defendant No. 2 was said to be not having any share in the property but she was asserting her right in the house. The suit for its partition was filed. The suit was resisted by the defendant No. 2 on the ground inter alia, that the plaintiff No. 1 was not the legally wedded wife of Ram Swarup and that the plaintiff No. 2 and the defendant No. 1 had also no share in the Said house. The contention of the plaintiff No. 1 that she was married to Ram Swarup in the year 1958 was denied. The trial court recorded the statement of the defendant No. 2 under O. 10, R. 2 C. P. C. She said that the plaintiff No. 1 had "gar Par Aakar Baith Gai Thhi". The trial court on a consideration of the evidence adduced by the parties held that the plaintiff No. 1 was not an heir nor the widow of Ram Swarup and as such was not entitled to any share in the disputed property. The trial court, however, held that the legal heirs of Ram Swarup were the plaintiff No. 2, the defendant No. 1 and the defendant No. 2 who are the daughters of Ram Swarup and are therefore entitled to a share of 1/3rd each in the house in dispute. It also held that there was no evidence that the husband of defendant No. 2 was a tenant of the accommodation in dispute: hence the question of damages did not arise. The suit for partition was accordingly decreed and it was declared that the plaintiff No. 1 has no share in the house in dispute. It was further declared that the plaintiff No. 2 was entitled to 1/3rd share in the house in dispute and that the defendant No. 1 had 1/3rd share. It was further declared that the defendant No. 2 had also 1/3rd share in the disputed house. Against that decision an appeal was filed by the plaintiff Smt. Ram Kali. The appellate court below held that the plaintiff Ram Kali was the widow of Ram Swarup. Consequently the appeal was allowed with costs and the decree was modified to the effect that the suit of the plaintiff shall stand decreed for partition and separation of 1/4th share of Smt. Ram Kali, 1/4th share of, Smt. Hanso, 1/4th share of Smt. Bibbe and 1/4th share of Smt. Bimla. Smt. Bibbe has filed the second appeal.

(2.) FOR the appellant it was urged that the appellate court below erred in holding that Smt. Ram Kali is the widow of Ram Swarup. The submission was that Smt. Ram Kali had not alleged in the plaint that her marriage had been performed in accordance with the customary rites prevailing in her community in the year 1958 and as the same fact had not been pleaded the appellate Court below fell in error in considering the evidence adduced in that behalf and in setting aside the finding reached by the trial court.

(3.) THE parties to the dispute are Hindus. They are governed by the provisions of Hindu Law and the Hindu Marriage Act. The plaintiff No. 1 had stated in the plaint that she was married to Ram Swarup in the year 1958. In her deposition before the court below she had stated that when she became a widow her parents got her marriage settled with Ram Swarup and she was married with Ram Swarup in the year 1958. That being the position the said marriage would obviously be governed by the provisions of Hindu Marriage Act, 1955.