RAKESH KUMAR GARG, J. (ORAL)

This is plaintiff’s second appeal challenging the judgment and decree dated 29.07.2010 of the trial Court whereby his suit for declaration that he is owner in possession of the suit land was dismissed and further judgment and decree dated 29.04.2011 of the lower appellate Court dismissing his appeal filed against the aforesaid judgment and decree of the trial Court.

Briefly stated, appellant filed a suit on the averments that defendant No.1 has been wrongly recorded as owner to the extent of 1/5th share in the revenue record with regard to the land, as detailed in para No.1 of the plaint. According to the appellant, the entire land was owned by Sultan, father of the plaintiff appellant and husband of defendant No.1, who had died in the years 196263 and thereafter the land was inherited by plaintiff appellant and defendants No.1, 5 and 6. It is further case of the plaintiff appellant that after the death of Sultan, defendant No.1Shanti contracted a Karewa marriage with Desha @ Desh Raj, brother of Sultan, and gave birth to defendants No.2 to 4. After the Karewa marriage, defendant No.1Shanti was divested from all rights in the suit land and the same had been reverted to the family of her first husband i.e. appellant as well as defendants No.5 and 6. The appellant has further pleaded customs in this regard. It is his further case that defendant No.1 Shanti suffered a decree dated 14.08.2006 in favour of defendants No.2 to 4 of the land of her share qua which she had no right. By filing the instant suit, the plaintiff appellant has sought declaration that the aforesaid decree is null and void and the appellant is owner in possession of the suit property, and has further sought injunction against the defendants No.1 to 4 restraining them from interfering into his peaceful possession over the suit land and from alienating the same.

Defendants No.1 to 4 contested the suit by filing a joint written statement submitting that on the death of Sultan, Shanti had become absolute owner in possession of her share in the property left by her husband Sultan and she had every legal right to deal with the property in the manner she liked, and therefore, she was competent to suffer the decree dated 14.08.2006 in favour of defendants No.2 to 4, who are in actual physical possession over the suit property. However, it was admitted that she had contracted Karewa marriage with Desh Raj after the death of Sultan.

After considering the evidence on record and hearing learned counsel for the parties, the trial Court dismissed the suit. The appeal filed by the plaintiff challenging the aforesaid judgment and decreed of the trial Court was also dismissed by the first appellate Court.

While dismissing the appeal, the lower appellate Court found that on the death of Sultan, his property devolved upon defendant No.1, being widow; and plaintiff appellant and defendants No.5 and 6, being son and daughters respectively as per the provisions of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as, ‘the 1956 Act’) and she became the absolute owner over the property. The first appellate Court further found that by reason of the overriding effect of Section 4 of the 1956 Act, reliance upon Section 2 of the Hindu Widow’s Remarriage Act, 1856 (hereinafter referred to as, ‘the 1856 Act’) cannot be made.

Challenging the aforesaid judgments and decrees of the courts below, the plaintiff appellant has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:

(A) Whether the Section 2 of the Hindu Widow’s Remarriage Act, 1856 was fully in force till repealed by Act No.24 of 1983 in view of the Supreme Court in case ‘Velamuri Venkata Sivaprasad (Dead) by LRs v. Kathuri Venkateswarlu (Dead) by LRs’ 2000(1) RCR (Civil) 485 and ‘Cherotte Sugathan (Died) through LRs & others v. Cherotte Bharathi & others’ 2008 (2) RCR (Civil) 696?

(B) Whether the Section 2 of the Hindu Widow’