PARU BALA MAHATAIN Vs. BIJUBALA MAHATAIN

JUDGEMENT

(1.) THIS second appeal, at the instance of the appellant, is directed against the judgment dated 15.2.1991 and decree dated 4.3.1991 passed in the Appeal No. 42 of 1987 whereby and whereunder the learned District Judge, Santhal Pargana at Dumka modified the judgment and decree of the learned Subordinate Judge and allowed the appeal.

(2.) THE plaintiffs instituted a suit for the partition for half share in the suit property and after the appointment of a Amin Commissioner for carving out their separate share, this partition suit was registered as Title Suit No. 11/84/12/87. The case of the plaintiff in brief is that one Lakhiram had two sons namely Iswari Mahato and Jogendra Mahto and defendant No. 1 Kamal Mahto is son and defendant Nos. 2, 3 and 4 are daughters of Jogendra Mahto. The lands described in Schedule A, B and C of the plaint stand recorded jointly in the name of the Iswari Mahato and Jogendra Mahto. Iswari Mahato died in 1940 leaving behind Puran Chand Mahto as his heir, who came in joint possession with Uncle Jogendra Mahto. Jogendra Mahto also died leaving behind his son defendant No. 1 and defendant Nos. 2 to 4 as his heirs. The wife of Jogendra Mahto had predeceased him and plaintiffs are the heirs of Puran Chand Mahto. Further case of the plaintiffs is that in 1966 Puran Chand Mahto married Parubala and had a son Prabhakar. The case of the plaintiffs is that Parubala was not the legally married wife of Puran and as such she is not entitled to any share in the suit property. Bijubala, plaintiff No. 1, is the legally married wife of Puran Chand Mahto and the plaintiff No. 2 Manju Bala Mahtain is daughter of Puran Chand Mahto and after the death of Puran Chand Mahto, trouble arose and hence this suit.

(3.) ON the pleadings of the parties, the trial Court framed issues and decided them and the trial Court held that appellant No. 1 is legally married wife of Puran Chand Mahto and decreed the suit of the plaintiff to the extent of half share only and being aggrieved by the judgment and decree of the learned trial Court, the plaintiffs filed Title Appeal No. 42/87 where learned lower appellate Court after considering the evidence and submissions of the plaintiffs witnesses, has come to a finding that appellant No. 1 Parubala is the legally married wife of Puran Chand Mahto and appellant No. 2 Prabhakar is the son of Puran Chand Mahto but at the same time, appellate Court held that marriage between Puran and appellant Parubala is hit by Section 6 of the Hindu Marriage Act and, therefore, appellant Mahtain cannot inherit any property left by Puran Chand Mahto. It was also held that Prabhakar Mahto has got an interest over the property left behind by his father and accordingly he is entitled to get his share separately. The plaintiff Bijubala Mahtain being the first wife of deceased Puran Chand Mahto, is entitled to 1/3rd share in the suit properties. The plaintiff Manju Bala Mahatain and appellant No. 2 Prabhakar Mahto are entitled to 1/12th share each in the suit properties. Being aggrieved and dissatisfied with the judgment and decree of the learned appellate Court, the appellants preferred this Second Appeal, wherein following substantial question of law has been formulated. "Whether the finding of the Court below that the marriage between Puran Chand Mahto and Paru Bala Mahtain is hit by Section 6 of the Hindu Marriage Act -