Badri Prasad and Others Vs. Smt. Chandrakantabai & Others
EmailAppeal: Civil Appeal No. 4174 of 1988
Petitioner: Badri Prasad and Others
Respondent: Smt. Chandrakantabai & Others
Apeal: Civil Appeal No. 4174 of 1988
Judges: V.N. KHARE & S.N. VARIAVA, JJ.
Date of Judgment: Jul 18, 2000
Head Note:
SPECIFIC RELIEF
Specific Relief Act, 1963
Section 34 – Declaratory suit – After death in 1949, widow remarrying twice – In 1966, widow executing sale deed – Daughters of deceased filing suit – Fact of remarriage not denied – Suit decreed by trial court on ground of no consideration – High Court upholding. Held that in view of the admitted fact of remarriage, there is no illegality in the judgment. Appeal dismissed.(Para 4)
JUDGEMENT:
Order
1. In view of the agreement between
the Counsel for the parties that respondent nos. 1 & 2 are the heirs and legal representatives of respondent no.3 who has died, there is no need for taking any steps for substitution proceedings. It is also agreed that the statement of learned Counsel for the appellants that respondent nos. 1 & 2 have also died, is not correct. In fact, they are still alive. We, therefore, proceed to hear this appeal.
2. Defendant nos. 1 to 3 are in appeal before us. In the year 1949, one Shankar-lal died leaving his widow, Smt. Shivrani, and the daughters who are respondents in this appeal. It is alleged that in the year 1951, Smt. Shivrani, remarried one Hariram from whom a son was born to her. Subsequently, Smt. Shivrani again remarried one Haricharan from whom a girl was born. On 20.12.1966, Smt. Shivrani executed a sale deed in favour of defendant-appellants in respect of the property purported to have been inherited from deceased Shankarlal. On 26.7.1977, the plaintiff-respondents, who are the daughters of Shankarlal, brought a suit for declaration that the sale deed, dated 20.12.1966 executed by Smt. Shivrani was null and void, as she forfeited her right over the property on her remarriage with Hariram. A written statement was filed by the defendant-appellants wherein the factum of remarriage by Smt. Shivrani as alleged in the plaint was not denied. However, the trial court decreed the suit on the ground that the sale deed was without any consideration. On appeal by defendant-appellants, the lower Appellate Court allowed the appeal and set aside the decree passed by the trial court. The High Court in second appeal, filed by the plaintiff-respondents, found that in view of the admission made by the defendant-appellants in their written statement that Smt. Shivrani had remarried, allowed the appeal and restored the decree passed by the trial court. It is against the said judgment the defendants are in appeal before us.
3. Learned Counsel appearing for the appellants urged that in view of statement by Smt. Shivrani in her examination-in-chief that she never married Hariram and thereafter Haricharan and her relationship with them was like a mistress and, therefore, under such circumstances she was not divested of her right in respect of the property in dispute and thus the judgment under appeal deserves to be set aside. This argument has no merit. The defendants in para 2 of the written statement stated which reads thus:
The genealogical tree, shown in para 2 of the plaint is admitted. It is also admitted that the disputed land was joint property. These facts are also not known to the defendants that the second marriage of Shivrani was performed 26 years ago and thereafter she married thrice. The fact that Shivrani had no right in the family of Khemchand, is totally false. This fact is also not true that her civil rights had been extinguished. In fact, as per the statement of plaintiff, Shankarlal died on 11.2.49 and 2-3 years thereafter, second marriage of plaintiff was performed with defendant no. 4. Accordingly it is clear that Shivrani acquired the rights in the disputed property after the death of her husband and as such, accordingly, she is the widow of Shankarlal in law.”
4. A perusal of the aforesaid paragraph shows that the plaint allegation that Smt. Shivrani had remarried after the death of Shankarlal was not denied. Moreover, Smt. Shivrani in her cross-examination admitted that she had remarried. In view of the admission of the plaint allegation made by the defendants in their written statement and further admission by Smt. Shivrani in her cross-examination that she had remarried, we do not find any illegality in the judgment under appeal. The appeal fails and is accordingly dismissed. There shall be no order as to costs.
1. In view of the agreement between
the Counsel for the parties that respondent nos. 1 & 2 are the heirs and legal representatives of respondent no.3 who has died, there is no need for taking any steps for substitution proceedings. It is also agreed that the statement of learned Counsel for the appellants that respondent nos. 1 & 2 have also died, is not correct. In fact, they are still alive. We, therefore, proceed to hear this appeal.
2. Defendant nos. 1 to 3 are in appeal before us. In the year 1949, one Shankar-lal died leaving his widow, Smt. Shivrani, and the daughters who are respondents in this appeal. It is alleged that in the year 1951, Smt. Shivrani, remarried one Hariram from whom a son was born to her. Subsequently, Smt. Shivrani again remarried one Haricharan from whom a girl was born. On 20.12.1966, Smt. Shivrani executed a sale deed in favour of defendant-appellants in respect of the property purported to have been inherited from deceased Shankarlal. On 26.7.1977, the plaintiff-respondents, who are the daughters of Shankarlal, brought a suit for declaration that the sale deed, dated 20.12.1966 executed by Smt. Shivrani was null and void, as she forfeited her right over the property on her remarriage with Hariram. A written statement was filed by the defendant-appellants wherein the factum of remarriage by Smt. Shivrani as alleged in the plaint was not denied. However, the trial court decreed the suit on the ground that the sale deed was without any consideration. On appeal by defendant-appellants, the lower Appellate Court allowed the appeal and set aside the decree passed by the trial court. The High Court in second appeal, filed by the plaintiff-respondents, found that in view of the admission made by the defendant-appellants in their written statement that Smt. Shivrani had remarried, allowed the appeal and restored the decree passed by the trial court. It is against the said judgment the defendants are in appeal before us.
3. Learned Counsel appearing for the appellants urged that in view of statement by Smt. Shivrani in her examination-in-chief that she never married Hariram and thereafter Haricharan and her relationship with them was like a mistress and, therefore, under such circumstances she was not divested of her right in respect of the property in dispute and thus the judgment under appeal deserves to be set aside. This argument has no merit. The defendants in para 2 of the written statement stated which reads thus:
The genealogical tree, shown in para 2 of the plaint is admitted. It is also admitted that the disputed land was joint property. These facts are also not known to the defendants that the second marriage of Shivrani was performed 26 years ago and thereafter she married thrice. The fact that Shivrani had no right in the family of Khemchand, is totally false. This fact is also not true that her civil rights had been extinguished. In fact, as per the statement of plaintiff, Shankarlal died on 11.2.49 and 2-3 years thereafter, second marriage of plaintiff was performed with defendant no. 4. Accordingly it is clear that Shivrani acquired the rights in the disputed property after the death of her husband and as such, accordingly, she is the widow of Shankarlal in law.”
4. A perusal of the aforesaid paragraph shows that the plaint allegation that Smt. Shivrani had remarried after the death of Shankarlal was not denied. Moreover, Smt. Shivrani in her cross-examination admitted that she had remarried. In view of the admission of the plaint allegation made by the defendants in their written statement and further admission by Smt. Shivrani in her cross-examination that she had remarried, we do not find any illegality in the judgment under appeal. The appeal fails and is accordingly dismissed. There shall be no order as to costs.
