Dismissed

(Died), Chamely Bai Through LRs. v. Smt. Chandrika Bai

Chhattisgarh HC4 Dec 2023FA/40/2019

Case brief

AI extract

What is this about?

Appeals challenging a civil suit decree regarding succession and land division. High Court found lower court correctly applied Hindu Succession Act recognizing second wife's status under Choori custom, affirming 1/3rd share division and rejecting mutation set-aside plea.

What did the court decide?

Appeals dismissed affirming lower court decree granting 1/3rd share to each heir and upholding mutation status.

(Died), Chamely Bai Through LRs. Vs Smt… — Succession and Inheritance | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA No. 591 of 2018

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Smt. Chandrika Bai D/o Late Sitaram Aged About 48 Years, Caste Satnami, W/o Late Nirmal Das, R/o Village Dothama, Tahsil Mungeli, District - Bilaspur, Present District - Mungeli, Chhattisgarh. ---Plaintiff/appellant

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Versus

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1. Chameli Bai (Died) Through Legal Heirs as per Hon'ble Court's Order Dated 11-10-2022.

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1.1 (A) Ramakant Satnami S/o Tulsiram Jangde Aged About 50 Years R/o Village H, R/o Village Kanan Pendari, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh

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1.2 (B) Kavita Bai W/o Mahendra Giri, D/o Ramakant Aged About 29 Years R/o Village Amane, Tahsil Kota, District : Bilaspur, Chhattisgarh

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1.3 (C) Suraj Satnami S/o Ramakant Satnami Aged About 27 Years R/o Village Kanan Pendari, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh

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1.4 (D) Prakash Satnami S/o Ramakant Satnami Aged About 25 Years R/o Village Kanan Pendari, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh

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1.5 (E) Kumari Savita D/o Ramakant Satnami Aged About 22 Years R/o Village Kanan Pendari, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh

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1.6 (F) Kumari Bhuri D/o Ramakant Satnami Aged About 20 Years R/o Village Kanan Pendari, Tahsil Takhatpur, District : Bilaspur, Chhattisgarh

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2. Smt. Ghasnin Bai W/o Guhara Aged About 60 Years Caste Satnami, R/o Village Kanan Pendari, Tashil Takhatpur, District - Bilaspur, Chhattisgarh. ---(Defendant No.-2), District : Bilaspur, Chhattisgarh

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3. State Of Chhattisgarh, Through Collector, Bilaspur, Chhattisgarh.

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-----Defendants/Respondents

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For Appellant/Plaintiff : Mr. Arvind Shrivastava, Advocate For Respondents/Defendants No.1 and 2 : Mr. Ravi Maheshwari, Advocate For Respondent No.3/State : Ms. Seema Singh, Panel Lawyer

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FA No. 40 of 2019

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1. Chamely Bai (died) through Legal representative :

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1a. Ramayan Jangde, aged about 55 years, son of late Tulsiram,

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1b . Kumari Kavita, aged about 29 years, daughter of shri Ramayan Jangde,

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1c . Suraj, aged about 27 years, son of shri Ramayan Jangde,

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1d. Prakash, aged about 25 years s/o Shri Ramayan Jangde,

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1e . Kumari Savita, aged about 23 years, daughter of shri Ramayan Jangde,

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1f. Kumari Bhuri, aged about 21 years, daughter of shri Ramayan Jangde,

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All are resident of village Hafa, Tahsil Takhatpur, District Bilaspur, Chhattisgarh.

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2. Smt. Ghasnin Bai, w/o Guhara (correct name Sitaram, aged about 60 years old) resident of village Kanan Pendari, Tahsil Takhatpur, District Bilaspur Chhattisgarh.

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---- Appellants/Defendants

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Versus

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Smt. Chandrika Bai, daughter of late Sitaram, W/o. late Nirmal Das, aged

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about 48 years, R/o village Dothama, Tahsil Mungeli, District Bilaspur, now Mungeli, Chhattisgarh.

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2. State of Chhattisgarh, through its Collector, Bilaspur, District Bilaspur, Chhattisgarh.

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---- Respondents/Plaintiff

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(Cause Title is taken from Case Information System)

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For Appellants/Plaintiffs : Mr. Ravi Maheshwari, Advocate For Respondent/Defendant No.1 : Mr. Arvind Shrivastava, Advocate For Respondent No.2/State : Ms. Seema Singh, Panel Lawyer

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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04.12.2023

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1. The parties shall be referred to their original status before the Civil court.

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1. In the present appeals, the plaintiff(s) and defendant(s) have challenged the judgment and decree dated 07.09.2018 passed by the IXth Additional District

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Judge Bilaspur, District Bilaspur, Chhattisgarh in Civil Suit No. (A)/333/2012 parties being ‘Chandrika Bai v. Chameli Bai and others’ whereby the suit preferred by the plaintiff/Chandrika Bai and counter claim of defendants/Chameli Bai and Ghasnin Bai, were partly decreed.

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1. Facts of the present case are that a civil suit was filed by the plaintiff (Chandrika Bai) for declaration of title and further that mutation No. 30 be declared null and void, and for possession of the property detailed in Schedule B and for injunction.

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1. The suit property described in Schedules A and B are Survey Nos. 989, 991/2, area 0.040 hectares; Survey No.1184/1 area - 0.105 hectare, total area- 0.146 hectares and other lands described in Schedule A are situated in Village Pendari, Patwari Circle No. 25, Sakri, Tahsil- Takhatpur, District- Bilaspur.

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1. Earlier, the entire property was recorded in the name of Sitaram who died on 31.12.2011. Sitaram had two wives. His first wife-Urmila died in 1996, and his second wife Ghasnin is still alive. The plaintiff/Chandrika is a daughter of Sitaram – Urmila, whereas, defendant No.1/late Chameli is a daughter of Sitaram and Ghasnin. After the death of Sitaram, the property was recorded in the names of plaintiff/Chandrika, defendant No.1/late Chameli and defendant No.2/Ghasnin Bai. It is further stated in the plaint that during the lifetime of the first wife-Urmila, Sitaram performed marriage with Ghasnin through the Choori custom and she had no right over the suit property. It is also pleaded that defendant 2/Ghasnin Bai was married to one Guhara Satnami and their marriage was not dissolved, therefore, the marriage of Sitaram and Ghasnin is void and she could not claim right over the suit property. It is further stated that earlier a civil suit was filed between the parties with regard to the property described in Schedule B and the parties entered into a compromise. There was

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no dispute between the parties. The defendants No.1 & 2/late Chameli and Ghasnin, filed the written statement and denied the plaint averments and categorically stated that the property detailed in Schedule B was given to defendant No.1/late Chameli Bai by late Sitaram through a registered sale deed dated 01.02.2007. It is also stated that the property described in Schedule B was a self-acquired property of the late Sitaram, thus, he had the right to alienate the property. A counter claim was also filed, wherein defendants No.1 and 2 claimed right over the suit property stated in Schedule A and also sought relief to declare mutation No. 30 as null and void. The right of a second wife during the lifetime of the first wife is a legal issue which can be proved by the parties at the time of evidence.

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1. The learned Court below framed issues and held that the plaintiff has the right over 1/3rd share of the property described in Schedule A and she has no right over the property detailed in Schedule B. The plaintiff and defendants No. 1 and 2 along with the daughter and son would be entitled to get a 1/3rd -1/3rd share in the suit property, whereas, defendant No.1 is the exclusive owner of the property detailed in Schedule B.

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1. With regard to the relief sought to declare mutation No. 30 dated 07.02.2012 as null and void, the trial Court rejected such relief and also held that the compromise judgment and decree passed in civil suit No. 21A/2007 dated 24/06/2008 is binding on the plaintiff; thus, the learned trial court found plaintiff and defendants No.1 and 2 entitled to get 1/3rd-1/3rd share in the suit property stated in Schedule B. Consequently, the civil suit as well as the counter claim was decreed in part. Thus both parties have preferred these appeals.

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1. Mr. Shrivastava, appearing for the plaintiff (FA No. 591 of 2018) would submit that there was a specific plea in the plaint that defendant No.2 is not a legally

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wedded wife of Sitaram. He would further submit that she started staying with Sitaram during the lifetime of his first wife; therefore, she cannot attain the status of legal wife. Thus, she is not entitled to get suit property. He argued that though this fact finds a place in the plaint, the same has not been denied by defendants No.1 and 2 in the written statement. He would fairly admit the fact that no issue was framed in this regard, but the subject matter was discussed at length by the Court below. With regard to Schedule B, he would admit that there was a compromise decree between the parties. He submits that the daughter of Sitaram-Urmila and Sitaram-Ghasnin would be entitled to get 1/3rd – 1/3rd share in the property stated in Schedule B and the Survey Nos. 991/1, 991/2 and 1184/1 and the Court below has committed an error of law in dividing the share of the parties as 1/3rd – 1/3rd.

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On the other hand, Mr. Ravipal Maheshwari appearing for defendants No.1 and 2 would submit that earlier, there was a compromise in Civil Suit No. 21A/2007 dated 24/6/2008 and the dispute involved with regard to the property detailed in Schedule B has already been resolved. He would further submit that Ghasnin is the legally wedded wife of the late Sitaram and according to Schedule 1 appended to the Hindu Succession Act, 1956, she is a Class-I heir. He further submits that no issue was framed before the Court below with regard to the entitlement of defendant No.2 on the suit property and for the first time, this issue is being raised before this court which is not permissible. He would also submit that Ghasnin Bai, Chameli Bai and Chandrika Bai, all are Class-I heirs, therefore, the learned trial Court has rightly granted 1/3rd - 1/3rd share to each of them. Therefore, no error of law with regard to the division of the land between the parties has been committed by the learned Court below. He lastly submits that the learned Court below has committed an error of law in partly

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dismissing the counter claim whereby it was held that mutation No. 30 cannot be set aside.

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1. Mrs. Seema Dixit, Panel Lawyer, appearing for the State would oppose.

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1. I have heard learned counsel appearing for the parties and perused the record.

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1. It is not in dispute that with regard to properties detailed in Schedule B, a compromise decree was passed by the learned VIIth Civil Judge Class-II, Bilaspur in Civil Suit No. 21A/2007 dated 24/06/2008 and the parties have accepted the outcome of the compromise judgment and decree, and with regard to property described in Schedule A, particularly Survey No. 991/2 ad-measuring 0.040 hectares and Survey No. 1184 ad-measuring 0.105 hectares, the plaintiff has claimed 1/2 share over that whereas, the learned Court below has divided the properties between the plaintiff and defendants No.1 and 2 as 1/3rd-1/3rd.

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1. With regard to the submission made by Mr. Shrivastava that defendant No.2 Ghasnin is not a legally wedded wife of Sitaram, no issue was framed by the learned trial Court. Though this plea was taken by the plaintiff in the plaint, and the written statement was also filed, the learned trial Court did not frame specific issues in this regard. The plaintiff also failed to move an application for framing additional issues under Order 14 Rule 5 of CPC and for the first time, this issue has been raised before this court.

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1. It is not in dispute that the learned trial Court has categorically held that the Choori custom is prevalent in the Satnami community and most of the witnesses like Ganeshram Satnami (PW/2), Netram Gandharv (PW/3), who are Kotwar of the village, Ghasnin Bai (DW/2), Dwarika Prasad Mishra (DW/3) and Resham Lal Khande (DW/4) had admitted the fact that there was marriage between Sitaram and Ghasnin, and Chameli is their daughter.

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1. From a perusal of the evidence led by the parties and the pleadings, it is quite

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vivid that the learned trial Court came to the conclusion that Ghasnin Bai is the legally married wife of the late Sitaram through Choori custom and the late Chameli Bai is daughter, though the marriage was performed during the lifetime of Urmila, the plaintiff has not stated that such custom did never prevail in their community at the relevant time.

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1. Taking into consideration the findings recorded by the Court below, in the opinion of this Court, no interference is required by this Court with the judgment and decree passed by the learned Court below in Civil Suit No. (A) 333/2012 and the learned trial Court is absolutely justified in dividing the property into 1/3rd –

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1/3rd shares to the parties.

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1. Accordingly, these appeals fail and are hereby dismissed.

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Nadim

(Died), Chamely Bai Through LRs. v. Smt. Chandrika Bai

Case brief

What is this about?

What did the court decide?

(Died), Chamely Bai Through LRs. v. Smt. Chandrika Bai

Case brief

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