MAHILA MATHURO BAI Vs. RAMWATI

JUDGEMENT

(1.) The decree passed in favour of the plaintiffs of declaration and of permanent injunction passed by the trial Court in relation to the suit land situated at Survey No.531 in village Babrod, Tahsil Mungaoli of Guna District, area 1 Bigha 13 Biswa, was reversed by the First Appellate Court. Aggrieved of this dismissal of the suit, the plaintiffs have preferred this second appeal.

(2.) Brief facts leading to this appeal are these: One Fodal Singh and Murli Singh, who were real brothers partitioned their properties and agricultural lands; land bearing Survey Nos. 220, 224, 243, 510 and 531, situated in village Babrod came in the share of Fodal Singh and the rest of the lands went to the Murli Singh. Mathurobai, plaintiff No.1, was married to one Takhat Singh, but without seeking any decree of divorce, she, according to the custom prevailing in the caste, married Fodal Singh and started living with him as his wife. Mathurobai gave birth to one daughter and two sons. It is not disputed that appellants Nos. 2, 3 and 4 are the children of Fodal Singh and Mathurobai. Fodal Singh died after about 15 years. After the death of Fodal Singh the names of the appellants/ plaintiffs were mutated as Bhumiswamis in the revenue records as heirs of Fodal Singh. Murli Singh, after the death of Fodal Singh, transferred by way of sale, the suit-land, i.e., 1 Bigha 13 Biswa, situated at Survey No.531 along with some other lands to Gorelal and Phool Singh, the defendants Nos.2 and 3. After sale, the defendants tried to dispossess the plaintiffs forcibly, hence, the plaintiffs instituted a suit for declaration of their title and for permanent injunction, seeking the relief that the sale deed executed by Murli Singh in favour of the defendants is ineffective against the title and rights of the plaintiffs. During trial, Phool Singh compromised the suit with the plaintiffs and admitted their claim. The other defendants contested the suit on the ground that as plaintiff No.1 Mathurobai is not the legally wedded wife, she and her children are not the legal heirs of deceased Fodal Singh; the plaintiffs have no right in the property left by deceased Fodal Singh. The trial Court raised a presumption of marriage, because of the long cohabitation between Fodal Singh and Mathurobai as husband and wife, decreed the suit of the plaintiffs. The lower appellate Court, in appeal preferred by the defendants, reversed the decree holding that Mathurobai was not the legally wedded wife, though, as wife, she remained in long cohabitation with Fodal Singh for a period of 15 years and gave birth to a daughter and two sons; as Mathurobai is not the legally married wife; the children are illegitimate, hence, the plaintiffs do not acquire any right in the properties left by deceased Fodal Singh, the order of mutation, as Bhumiswami, of the plaintiffs has no effect.

(3.) Shri K.B. Chaturvedi, learned counsel for the appellants, contended that Takhat Singh, former husband of Mathurobai, never objected to her long cohabitation with Fodal Singh; there is a custom of such marriage in the caste, therefore, long cohabitation between a man and a woman raises a clear presumption of marriage, particularly where they lived as husband and wife and children born out of such marriage were treated as the children of Fodal Singh by the community. It was also contended that a third person has no right to challenge that the marriage was void in any suit or proceeding; if a marriage is solemnised in contravention of any of the provisions of the Hindu Marriage Act, 1955 (for short, the 'Act'), it remains only a punishable offence, it does not affect the right of succession. Lastly, it was submitted that, in any case, S.16 of the Act safeguards the interest of the offsprings of void or voidable marriage and it upholds the legitimacy of paternity of a child born out of such marriage, the section removes the disability of illegitimacy and confers status with interest in the property. Learned counsel in support of his contentions placed reliance on the decisions in Lila Gupta v. Laxmi Narain, AIR 1978 SC 1351, Badri Prasad v. Dy. Director, Consolidation, AIR 1978 SC 1557, Rewa Ram v. Ram Ratan, 1961 Jab LJ 1126; Ramkali v. Nathoo Singh, 1983 MPWN 262; Gindan v. Barelal, AIR 1976 Madh Pra 83; Laxmibai Nagappa v. Limbabai Nagappa, AIR 1983 Bom 222 and Smt. Sheel Wati v. Smt. Ram Nandani, AIR 1981 All 42.