HIGH COURT OF CHHATTISGARH

SECOND APPEAL NO: 356 OF 2001

SHRIBACHAHH KUMAR BHOI & ORS V/S SINDHU & ORS

IN THE COURT OF HON’BLE SHRI JUSTICE SANJAY K. AGRAWAL

In an appeal filed in the High Court Chhattisgarh, Bilaspur, the Court observed that the effect of the valid remarriage is the widow losing her right to the property inherited from the previous husband. The Bench consisting of Hon’ble Shri Justice Sanjay K. Agrawal dismissed the appeal of Second Appeal No.356 of 2001, filed by the plaintiff against the Order of the first appellant Court which allowed the appeal of the defendant No.2. and held that defendant No.1 is the full owner of the suit property and that the plaintiff is not entitled to any decree.

Facts of the Case

It is the case of the plaintiff that since Ghasi who died in the year 1942 and his wife defendant No.1 entered into a second marriage in the year 1954-55 in chudi form, therefore, she ceases to have any interest in the suit property and would be governed by clause 29 of the Raigarh State Wajib-ul-arz and as such, she did not become the full owner of the suit property being not in possession of the property held by Ghasi by virtue of Section 14(1) of the Hindu Succession Act, 1956.

Therefore, defendants No.1 & 2 have no right and title over the suit property situated at Village Chichor Umariya in Account Nos.276 & 277 and as such, defendants No.1 & 2 be restrained from interfering with the possession of the plaintiff and the plaintiff be declared to be the titleholder.

The trial Court after considering oral and documentary evidence available on record passed the decree in favour of the plaintiff. The defendants in turn filed an appeal in the first appellant court against the order of the trial court and the judgement was given in favour of the defendants. Aggrieved by this present appeal, Second Appeal No.356 of 2001 was filed by the appellant on behalf of the plaintiff who died during the pendency of the suit.

Contentions of the Parties

Mr Neelkanth Malaviya, learned counsel appearing for the appellants submitted that the first appellate Court had erred in holding that Section 14(1) of the Hindu Succession Act, 1956 would apply and defendant No.1 Kiya Bai & defendant No.2 had become full owners of the suit property and further erred in holding that clause 29 of the Raigarh State Wajib-ul-arz would not apply.

He further submitted that the finding recorded by the first appellate Court that Kiya Bai has not entered into a second marriage in 1954-55 is an erroneous finding being contrary to the record and it is against the admission made by defendant No.1 / her daughter Sindhu and therefore the judgment of the first appellate Court deserves to be set aside.

Contrary to this Defendants No.1 & 2 filed their separate written statement jointly stating inter alia that defendant No.1 after the death of Ghasi in the year 1942, remained in the village and stayed in the house left by Ghasi and she never remarried, though she left the village for some time, she never remarried and since partition has already taken place in the lifetime of Ghasi.

Therefore, after the death of Ghasi, defendants No.1 & 2 remained in possession of the suit property by cultivating the suit land and the name of defendant No.1 has also been recorded in the revenue records vide order dated 28-5- 1984  and that the plaintiff is not entitled to get the order of mutation annulled and for a permanent injunction.

Observations of the Court

The Hon’ble High Court, after the cross-examination of the parties, observed that the land in suit was cultivated by defendant No.1 for 2-3 years after the death of her husband and later on behalf of them, the land was cultivated by Govardhan, the father of the plaintiff and later on by the plaintiff and in lieu of the land crop was given to the Defendant No. 1.  

Thus, the Court held that it is established position on record that the suit land fell in the share of Ghasi after partition during the lifetime of Ghasi and after the death of Ghasi defendant No.1 came in possession of the suit land and on her behalf, the plaintiff’s father was cultivating the land and giving the share of the crop to defendant No.1. It is also established position on record that defendant No.1 remained in possession of the suit land till her death.

The Court held that the object of Section 14(1) of the Hindu Succession Act, 1956 is firstly, to remove the disability of a female to acquire and hold property as an absolute owner and secondly, to convert any estate already held by the woman on the date of commencement of the Act as a limited owner, into an absolute estate.

The Court further laid emphasis on many judgements and observed that defendant No.1 became the limited owner of his share by virtue of the provisions contained in Section 3(2) of the Hindu Women’s Rights to Property Act, 1937 and after coming into force of the Act of 1956 and by operation of Section 14(1) of the Act of 1956 with effect from 17-6-1956, defendant No.1’s limited right in the suit property would blossom into the absolute estate as contemplated by Section 14(1) of the Act of 1956 and she would become the absolute owner of the suit property as on date.

And since defendant No.1 had already become limited owner, clause 29 of the Raigarh State Wajib-ul-arz would not be applicable and the arguments based on this point was rejected

Further, the Court observed that according to Section 6 of the Hindu Widows’ Remarriage Act of 1856, in case of remarriage, all the formalities for marriage are required to be proved. Section 6 of the Act contemplates the performance of almost the same ceremonies, which are required in the case of the marriage of Hindu females.

There can be no valid marriage in any form without a substantial performance of the requisite religious ceremonies. The performance of ceremonies, therefore, is necessary for the completion of the marriage. The effect of the valid remarriage is the widow losing her right to the property inherited from the previous husband. And Since Plaintiff could not prove that a valid marriage had taken place, the claim was rejected.

Thus, on the evidence on record and considering the facts the Court dismissed the Second appeal and justified the decree of the First appellant Court.

Written by- Abey Thomas

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