LAXMIBAI NAGAPPA MATIWADAR Vs. LIMBABAI NAGAPPA MATIWADAR

JUDGEMENT

(1.) For the purpose of the present appeal that arises out of a suit filed by the respondent for possession of three plots relying on her right to succeed to the interest of her husband Nagappa, few facts as found, are not in dispute. It was held by the first Appeal Court that Nagappa got the suit property, that is, Plot No. 228, by inheritance from his mother Nagwada, but the Appeal Court dismissed the suit with regard to the other plots, being Plots Nos. 230 and 231. There is no cross-appeal with regard to those plots. The first appeal Courts judgment decreed the suit of Limbabai with regard to the said Plot No. 228, holding that the present appellants would not have any right or interest therein because appellant No. 1 Laxmibais marriage with Nagappa was void. That marriage took place on May 24, 1955. The other appellants were born thereafter. It has been found that plaintiff Limbabai was married to Nagappa according to Hindu rites and was alive on that date. Applying the provisions of the Bombay Prevention of Hindu Bigamous Act, 1946, the first Appeal Court held that Hiralal and Ambubai, the son and the daughter born from Laximibai to Nagappa, because Laxmibais marriage was void, would be illegitimate children. Holding so, the first Appeal Court has decreed suit with regard to Plot No. 228 and has also made an order, directing delivery of possession of the said plot as well as inquiry into future mesne profits.

(2.) These undisputed facts clearly go to show that as far as application of the law is concerned, there is an apparent error in the judgment under appeal. The marriage of Laxmibai and the rights and entitlement of Hiralal and Ambubai will have to be found on the basis of the Hindu Marriage Act, 1955 (hereinafter called "the Act"). It is not in dispute that this should be so because the Act came into force on May 18, 1955, while Laxmibai was married with Nagappa in May 24, 1955, that is, after the commencement of the Act. Undoubtedly, therefore, to that marriage the provisions of section 5(1) read with section 11 of the Act will have to be applied. So applied, it leaves no manner of doubt that plaintiff Limbabai, the first wife of Nagappa, being alive on the date of the marriage, the marriage of Laxmibai would be void and will have to be treated as such.

(3.) The narrow question is, what is the impact of section 16(1) and section 16(3) of the Act read with the provisions of section 8 of the Hindu Succession Act, 1956 ?