SWAROOPA PRAKASH VAIGANKAR Vs. DEEPA PRAKASH NAIK

JUDGEMENT

(1.) BY this appeal the appellant takes exception to judgment and decree dated 26. 09. 2003 passed by the Civil Judge, Senior Division, Vasco in Special Civil Suit No. 61/1996/b, by which the Trial Court decreed the suit filed by the respondent no. 1 and 2.

(2.) THE appellant is defendant no. 5, the respondent nos. 1 and 2 are the plaintiffs and respondent no. 3 to 6 are the defendant no. 1 to 4 respectively in the above suit. The parties shall hereinafter be referred to as per their status in the suit before the Trial Court.

(3.) THE plaintiff no. 2 is the son of the plaintiff no. 1. The plaintiff filed the above suit for a declaration the they were the sole and universal heirs of late Prakash Naik and therefore, they were entitled to all the benefits from the defendant no. 2 to 4 due to late Prakash. The plaintiffs also sought declaration that the marriage of the appellant and Prakash solemnised on 17. 07. 1983 was null and void. The plaintiffs further sought declaration that the Deed of Succession and Qualification of heirs drawn before the Ex-Officio Notary and Sub Registrar of Tiswadi Taluka at Panaji by which the defendant no. 5 was declared as the sole successor of the estate of late Prakash be declared null and void. The plaintiffs also sought the amount due from the Insurance Company, the Bank and Mormugao Port Trust with whom late Prakash was employed. The suit was contested and the Trial Court by the impugned judgment and decree decreed the suit. In the Trial Court, the appellant claimed that she was married to late Praksh and the marriage was registered at Sawantwadi on 17. 7. 1983. She further claimed that late Prakash had represented to her that he was unmarried. The plaintiffs raised a counter claim claiming that she was the surviving spouse and was the sole successor of late Prakash. Before the Trial Court, the defendant no. 5 claimed right to the entire estate left by deceased Prakash. The Trial Court upon appreciation of the evidence and the legal position held that the plaintiff no. 1 was the legally wedded wife by placing reliance upon the Marriage Certificate produced by the plaintiff at Pw. 1/dw. 1/a. The marriage was solemnised on 17. 05. 1978. The Trial Court held that under Article 5 of the Law of Marriage, in force in Goa, a person cannot enter into a marriage during the subsistence of the earlier marriage. Placing reliance upon Article 11 and clause 6 of Article 4 of the Law of Marriage, the Trial Court held that the marriage solemnised during the subsistence of the earlier marriage was presumed to be non existing. Resultantly, the Trial Court held that since the defendant no. 5 had married late Prakash during the subsistence of valid marriage of plaintiff no. 1, the marriage of defendant no. 5 with late Prakash was null and void. Consequently, the Trial Court held that the defendant no. 5 did not have right of any nature in the estate of late Prakash and upon marriage of plaintiff no. 1 with late Prakash, she was entitled to half share and upon his death, plaintiff no. 2 would inherit the estate to the exclusion of others under Article 1969 of the Civil Code. The Trial Court held that the plaintiffs being the wife and son of late Prakash, were entitled to inherit the estate of late Prakash and as such the defendant no. 5 is not entitled to receive any benefit accrued upon the death of Prakash. Aggrieved by the judgment and decree passed by the Trial Court, the defendant no. 5 has filed the present appeal.