The main legal point established in the judgment is the interpretation of Sec. 15(1)(b) of the Hindu Succession Act, 1956, to determine the entitlement to property succession based on the validity of marriage and absence of a decree declaring it void.

JUDGMENT :

A.K. Rath, J.

Since the common question of facts and law are involved in both the appeals, the same were heard together and are disposed of by this common judgment.

2. These appeals have been filed against the common judgment of the learned 1st Additional District Judge, Berhampur. The plaintiff-appellant instituted the suit for declaration.

3. The case of the plaintiff was that N. Narsamma was the daughter of N. Sarathi. She was serving as sweeper in Khallikote College, Berhampur. The plaintiff is the son of N. Chinneyya, brother of N. Narsamma. N. Narsamma was a spinster. She adopted the plaintiff at about 9 A.M on makar sankaranti day, when he was aged about 10 years old. There was giving and taking ceremony. The parents of the plaintiff physically handed over to him to N. Narsamma, who accepted him as her adopted son in presence of the relatives. The plaintiff was also looking after Narsamma, when she was ill. Narsamma executed a deed of acknowledgement of adoption as a token of evidence of adoption of the plaintiff on 20.3.92 before the Notary Public. Narsamma died on 24.8.92. The plaintiff was entitled to her retiral benefits. He was entitled to a post under the rehabilitation scheme. It was further pleaded that the defendant, who is the grandson of K. Papamma, the elder sister of Narsamma, had made a false claim and wanted to take all the death benefits of Narsamma on the ground that her grandfather K. Simadri had married to Narsamma and he is the only legal heir to get such benefits. He had created certain documents like affidavit said to have been sworn by Narsamma before the Notary Public and had made a counter claim on the basis of those false affidavits. With this factual scenario, the plaintiff instituted the suit seeking the reliefs mentioned supra.

4. The defendant filed a written statement. The case of the defendant was that N. Sarathi had two sons and two daughters, namely, N. Sanyasi, N. Chinneyya, K. Papamma and N. Narsamma. K. Papamma. The elder daughter of N. Sarathi married to K. Simadri. The father of the defendant K. Krushnamurty was the only son of K. Papamma, the first wife of K. Simadri. His father, grandfather and grandmother K. Papamma are all dead. As K. Papamma was sick, K. Simadri married to N. Narsamma. After death of N. Narsamma, the defendant being her only legal heir was entitled to get the entire death benefits of her. But then the plaintiff, son of N. Chinneyya, by a fake document of adoption claimed the death benefits of Narsamma. Plaintiff is not the adopted son of N. Narsamma. He was all through rendering the services to his grandmother Narsamma, when she was ill. Narsamma died on 24.8.92. She had also sworn affidavits before the Executive Magistrate that she married to K. Simadri and as such, the defendant is the only legal heir and successor to her. She had nominated the defendant to get all the death benefits including her service benefits under the rehabilitation scheme.

5. Stemming on the pleadings of the parties, learned trial court struck eight issues. Parties led evidence. Learned trial court came to hold that the plaintiff is not the adopted son of N. Narsamma. He disbelieved the marriage of Narsamma with K. Simdari. Held so, it dismissed the suit. Feeling aggrieved, the plaintiff filed T.A. No.20/94 before the learned District Judge, Berhampur. The defendant also filed T.A. No.25/94. Both the appeals were transferred to the court of the learned 1st Additional District Judge, Berhampur and renumbered as T.A. No.37/99 and T.A. No.38/99 respectively and heard analogously. Learned lower appellate court dismissed T.A. No.37/99. In T.A. No.38/99, it held that Narsamma married to K. Simadri during life time of his first wife, K. Papamma, for the second time. The marriage is void. No petition under Sec.11 of the Hindu Marriage Act, 1955 was filed to declare the marriage void. With regard to succession of the death and service benefits of Narsamma, it held that the plaintiff had c