Partly allowed

Ahilya Kuer and Ors. v. Ramawati Devi and Ors.

Patna HC16 Jan 2017FA/98/1973

Case brief

AI extract

What is this about?

The Patna High Court allowed a partition suit appeal. The court confirmed the marriage between Prithvi Nath Pandey and Ramawati Devi before his second marriage, but held that his son with Ahilya Kuer is entitled to a share under Section 16 of the Hindu Marriage Act, ultimately fixing the respondent's share at 4 annas out of 16.

What did the court decide?

The First Appeal was allowed in part; the suit was decreed to the extent of 4 annas share out of 16 annas share.

Ahilya Kuer and Ors. Vs Ramawati Devi and Ors. — Partition | Patna HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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First Appeal No.98 of 1973

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Against the Judgment and Decree dated 30.11.1972 passed by 3^rd Addl. Sub Judge, Chapra in partition suit No.164 of 1965 / 94 of 1968.

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=========================================================== Ahilya Kuer & Ors. ................Defendants-appellants Versus Mostt. Bhagmani Kuer & Ors. ………..…….....Plaintiffs - Respondents =========================================================== Appearance : For the Appellant/s (in all the Appeals) :- Mr. Nagendra Rai, Adv. Mr. Navin Nikunja, Advocate For the Respondent :- Mr. Binod Kumar Singh, Advocate Ms. Vagisa Pragaya Vaccanavi, Advocate ==========================================================

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Dated : 16^th day of January, 2017

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P R E S E N T

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CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO

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CAV JUDGMENT

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1. The defendants have filed this First Appeal against the Judgment and Decree dated 30.11.1972 passed by the learned 3^rd Addl. Subordinate Judge, Chapra in Partition Suit No.164 of 1965 / 94 of 1968.

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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2. The original plaintiff Pushpdanta Pandey filed the suit claiming for partition of his half share in the suit property alleging that the plaintiff-defendant No.1, Sarjug Pandey, and defendant No.2, Prithvi Nath Pandey, constituted joint Hindu Family. Plaintiff is the son of defendant No.2, Prithvi Nath Pandey. Defendant No.2 was living with one Ahilya Kuer and through them, three children have been born. The defendant No.1 Sarjug Pandey is the father of defendant No.2. Defendant No.1 started selling the suit properties and as such a Panchayati was held wherein defendant No.1 surrender his entire interest to defendant No.2, Prithvi Nath Pandey. Thereafter, defendant No.2 became the absolute owner of the property.

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3. During the pendnecy of the suit, original defendant No.1, Sarjug Pandey, died in the year 1966. The original plaintiff, Puspadant Pandey, also died in 1970 leaving behind his mother, Ramawati Devi who has been substituted. The original defendant No.2 also died and in his place the sons and daughters of Ahilya Devi have been substituted. Partition was demanded but it was refused hence the suit was filed.

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4. The original defendant No.1 and 2 filed contesting written statement. Besides taking various legal and ornamental please, they alleged that original plaintiff, Puspadant Pandey, is not the son of

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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Prithvi Nath Pandey and Ramawati Devi, substituted plaintiff is not the wife of Prithvi Nath Pandey. According to them, Ramawati Devi is the daughter of Chandrika Ojha and is distant Aunt of defendant No.2. She began to live in her father’s place after death of her husband and because of her loose character, she gave birth to the plaintiff.

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5. On the basis of the pleadings of the parties, the learned Court below framed the following issues :-

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(i) Is the suit as frame maintainable?

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(ii) Has the plaintiff got any cause of action for the suit?

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(iii) Is there any unity of title and possession between the parties over the properties in dispute?

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(iv) Whether the plaintiff and Pushpandant Pandey(deceased) are the sons and widow of Prithwi Nath Pandey, defendant No.2?

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(v) Is the plaintiff entitled to get a decree for partition as claimed? If so, to what share and for which property?

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(vi) To what relief, if any, is the plaintiff entitled?

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6. On the basis of the evidences oral and documentary, the learned Court below came to the conclusion that Ramawati Devi is the

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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wife of original defendant No.2, Prithvi Nath and original plaintiff is the son of Prithvi Nath Pandey. The Court below also recorded finding that marriage between Prithvi Nath Pandey with Ahilya Kuer is void because of the fact that the marriage took place after Hindu Succession Act during life time of first wife. The Court below decreed the plaintiff’s suit and granted 5½ annas share out of 16 annas.

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7. The learned counsel, Mr. Nagendra Rai, for the defendantappellant submitted that the Court below has wrongly recorded finding that Ramawati Devi, the mother of original plaintiff Puspadant Pandey was the wife of Prithvi Nath Pandey. The learned Court below has misread the evidences oral and documentary and recorded a wrong finding. Since Ramawati Devi was not the wife of Prithvi Nath Pandey, the finding of the Court below that the marriage with Ahilya Kuer is void is liable to be set aside and the plaintiff’s suit be dismissed.

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8. Secondly, the learned counsel submitted that even if it is held that Ramawati is wife of Prithvi Nath Pandey then also the share of original plaintiff will not be 5½ annas out of 16 annas. According to the learned counsel, admitted fact is that Sarjug Pandey had 3 daughters and one son Prithvi Nath Pandey. Even if Ahilya Kuer’s

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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marriage was void then also the sons born through her will be entitled to share in the share of Prithvi Nath Pandey. Therefore, Sarjug Pandey original defendant No.1 Prithvi Nath Pandey, Original defendant No.2 had 1/2^nd share in the co-personary property. In other words, both have got 8 annas each. On the death of Sarjug Pandey, his 8 annas will devolve on Prithvi Nath Pandey and three daughters in equal share, i.e., 2 annas each. The share of Prithvi Nath Pandey will be 8 anna + 2 annas = 10 annas and on partition, the share of Prithvi Nath Pandey will devolve on Ramawati Devi, Puspadant Pandey and three sons through Ahilya Kuer. As such plaintiff will get 2 annas of Puspadant Pandey and 2 anna her share = 4 annas only, i.e., 1/4^th share in the suit property. But the Court below wrongly held that plaintiff will get 5½ annas share which is wrong.

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9. On these grounds, the learned counsel for the appellant submitted that the impugned Judgment and Decree are liable to be set aside and the plaintiff’s suit be dismissed with cost.

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10. On the other hand, the learned counsel, Mr. Binod Kumar Singh appearing on behalf of the respondent submitted that there are overwhelming evidences oral and documentary adduced by the plaintiff-respondent in support of the relationship between Prithvi Nath Pandey and Ramawati Devi and their son Puspadant Pandey, the

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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original plaintiff. Admitted fact is that marriage of Puspadant Pandey with Ahilya is claimed by the defendant in the year after commencement of Hindu Marriage Act, therefore, during life time of first wife, if any marriage is held, it will be a void marriage. The Court below considered this fact and has clearly recorded a finding that marriage of Prithvi Nath with Ahilya will be void. So far share is concerned, the learned counsel submitted that the Court below has rightly held that plaintiffs have got 5½ annas share. On these grounds, the learned counsel submitted that the First Appeal be dismissed.

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11. In view of the above submissions of the learned counsel for the parties, the following points arises for consideration in this First Appeal :-

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(i) Whether plaintiff has been able to prove relationship of Prithvi Nath with Ramawati Devi as husband and wife as such there is unity of title and possession between the parties?

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(ii) Whether the plaintiff is entitled to a share to the extent of 5½ annas and if not what is her share?

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12. Point No.(i) :- The plaintiff has adduced evidences in support of the case that marriage between Prithvi Nath pandey and

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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Ramawati Devi was held some time in the year 1954-55-56. In support of the marriage, in addition to oral evidences, the plaintiff had also produced exhibit ‘2’ which is invitation letter for taking part in the marriage. The electoral roll of the year 1966 has also been produced which has been marked as exhibit ‘7’ and in this voter list, Ramawati Devi has been shown as wife of Prithvi Nath Pandey. The voter list is of the year 1971 is exhibit ‘7A’ which also shows that Ramawati was the wife of Prithvi Nath Pandey. The pariwarik register is exhibit ‘4’ which also proves this fact. P.W.27, the Mukhiya has proved this Pariwarik register. From perusal of evidences of P.W.27, it appears that this Pariwarik register was prepared in 1960, i.e., prior to institution of the suit. At that time, there was no controversy regarding relationship.

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13. P.W.4 claimed to be the witness of taking birth of Puspadant Pandey and this P.W.4 had admitted that his sister was married with Sarjug Pandey. The father of Ramawati has been examined as P.W.21. He has supported the marriage in the year 1956. Likewise the other witnesses, P.W.20, P.W.14, P.W.11, P.W.22, supported the marriage. P.W. 22 is neighbour. P.W.2, 3, 6, 8, 10, 14, 19, 23 and 24 claimed that they attended the marriage between Prithvi Nath Pandey and Ramawati.

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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14. On the contrary, the defendants have examined witnesses whose evidences are in negative form. They had only denied the marriage with Ramawati Devi and in addition to that they had stated about the marriage of Prithvi Nath with Ahilya Devi.

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15. Now, the question is so far marriage of Prithvi Nath with Ramawati is supported by the documentary evidences. The defendant’s case is that the marriage between Prithvi Nath and Ahiliya took place in the year 1958 to 1960. In such circumstances, during life time of Ramawati Devi, the second marriage is void in view of Hindu Marriage Act. From the discussion of the evidences oral and documentary produced by the plaintiffs, it becomes clear that the marriage between Prithvi Nath and Ramawati took place some time in the year 1955-56, i.e., prior to the marriage of Ahilya with Prithvi Nath as claimed by the defendants. In view of the provision of Hindu Marriage Act, the second marriage during life time of Ramawati will be void.

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16. In view of the above discussion, I find that the plaintiff has been able to prove that Ramawati Devi is the wife of Prithvi Nath Pandey through whom original plaintiff Puspadant Pandey was born.. So far marriage of Ahilya even if it was held it is a void marriage. However, in view of Section 16 of the Hindu Marriage Act, the sons

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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will be entitled to shares in the property of Prithvi Nath Pandey. The finding of the learned trial Court on this point is thus confirmed.

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17. Point No.(ii) :- So far the share is concerned, admittedly, Sarjug Pandey had died. For calculating the share of his daughters, there will be notional partition. Sarjug Pandey will get half share, i.e., 8 annas and 8 annas will go to Prihtivi Nath Pandey. On the death of Sarjug Pandey, his 8 annas will go to Prithvi Nlath Pandey (2 annas), Chandrawati Devi (2 annas), Sonawati Devi (2 annas) and Sheopati Devi (2 annas). Thus, Prithvi Nath Pandey will get 10 annas share and on his death, this 10 annas will devolve on Puspadant Pandey (2 annas), Ramawati Devi (2 annas), Ghanshayam Pandey (2 annas) Radhyshayam Pandey (2 annas) and Prabhawati Kumar (2 annas). Original plaintiff, Puspadant Pandey, died in the year 1970, therefore, his 2 annas share will go to Ramawati Devi, his mother who is class I heir and, therefore, Ramawati Devi will get her 2 annas share + 2 annas share of Puspadant Pandey = 4 annas shares. Accordingly, the plaintiff is entitled to this share only out of 16 annas. The Court below has wrongly calculated the share and granted 5½ annas share. Thus, the finding of the Court below that the plaintiff has got 5½ annas share is hereby modified to the extent that the plaintiff will get 4 annas share out of 16 annas share.

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Patna High Court FA No.98 of 1973 dt.16-01-2017

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10 -

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18. In the result, this First Appeal is allowed in part and the impugned judgment and decree of the trial Court is modified to the extent that the plaintiff’s suit is decreed to the extent of 4 annas share only out of 16 annas share. In the facts and circumstances of the case, there shall be no order as to cost.

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(Mungeshwar Sahoo, J)

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Sanjeev/-

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U T

Ahilya Kuer and Ors. v. Ramawati Devi and Ors.

Case brief

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Ahilya Kuer and Ors. v. Ramawati Devi and Ors.

Case brief

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