1. The legality and validity of the judgment and decree dated 28.6.2005 passed in Title Appeal No. 15 of 2005 by the learned Civil Judge (Sr. Div.), Goalpara, reversing the judgment and decree dated 10.3.2005 passed in Title Suit No. 75 of 2003 by the learned Civil Judge (Jr. Div.) Goalpara is under challenge in the instant Regular Second Appeal.

2. Heard Mr. B. Banerjee, learned counsel appearing for the appellant. Also heard Mr. H. Das, learned counsel for the respondents.

3. This Court while admitting the Regular Second Appeal, formulated the following substantial questions of law :

(a) Whether the learned court of appeal below is justified in holding that there was valid marriage between the defendant and the deceased Moniram under Garo Customary Law though the defendant had admittedly deserted the deceased and married another person without the decision of Mohari, the special custodian of marriage laws under Garo custom?

(b) Whether the learned court of appeal below is justified in holding that the defendant and the deceased lived together as husband and wife but failed to consider the question of re-marriage with another person and eventually she has lost all her right to property and she is not entitled to get any thing under the law of inheritance of Garo Customary Law and, therefore, all property would automatically passes into the hands of Nokna or of the new wife whom the mahari eventually provides for the abandoned husband and as such whether the impugned judgment suffers from perversity?

4. In order to answer the substantial questions of law as formulated, the court has to go through the pleadings of the parties, the evidence on record and the relief sought for :

The appellant herein as plaintiff brought a suit being Title Suit No. 75 of 2003 seeking the following reliefs :

RESPONDENT BALBILA

"(a) For a declaration that the defendant is not a lawful wife of late Moniram Marak;

(b) For a declaration that the defendant is not entitled to any property left by late Moniram Marak;

(c) For a declaration that Succession certificate obtained by the defendant in Misc. (success) Case No. 26/2000 is fraudulent, void and inoperative in law;

(d) For a declaration that the plaintiff is sole heiress of late Moniram Marak and entitled to all properties -movables and immovables left by said late Moniram Marak;

(e) For a permanent injunction to restrain the defendant from claiming herself as the wife of late Moniram Marak and also from claiming any right to any property left by late Moniram Marak.

5. The relief as sought for is based on the averments made in the plaint contending that Maniram Marak was an employee of Assam State Electricity Board, Goalpara Division, who died on 9.5.1999 while on service and he died as unmarried leaving the plaintiff as full sister as his only heiress and under Garo customary law, the plaintiff being the only surviving sister is entitled to inherit all the properties of late Moniram Marak. It has further been averred that the defendant lived with the deceased for few years as his mistress without any formal marriage but deserted late Moniram Marak in the year 1983 and went to Meghalaya by adopting a new name, 'Mailani Sangma', married one Mr. Pinalson Momin of village Hatibasha under PS and PO Mendipathar, East Garo Hills district and residing there since 1983. But after the death of Moniram Marak, the defendant with mala fide intention came back in order to grasp the entire property and in fact obtained a Succession Certificate to the estate of late Moniram Marak being Misc. (Succ.) Case No. 26/2002 on 4.6.2003 without arraying the plaintiff as party respondent in the case and, hence, the suit seeking the relief as indicated above.

6. On receipt of the summon the defendant appeared and contested the suit by filing her written statement contending that the suit is not maintainable, the suit is bad for non-joinder of heirs of the deceased Maniram Marak and raised other objections as available under the law. The re

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