Heard Sri Arvind Vashistha, coun sel for the appellants and Sri Rajendra Dobhal, counsel for the respondent.

2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and de cree dated 25-5-2005 passed by the Dis trict Judge, Tehri Garhwal by which the suit filed by the plaintiff-appellants has been dismissed.

3. Briefly stated, a suit was filed by the plaintiffs-appellants for declaration to the effect that they are the successor of late Mohan Singh. According to the plaint case, late Mohan Singh (herein after referred as the deceased) was posted in the Indian Army on the rank of Naik, who died on 15-11-2003. The deceased was married with Smt. Usha Devi, the defendant. There was no issue from the wedlock of the deceased and Usha Devi. Later on, the deceased mar ried the plaintiff-appellant no. 1 Rajani Devi with the consent of Usha Devi in September, 1989 and there were three issues from their wedlock as a result of which plaintiff-appellants no. 2,3 and 4 became the heirs of the deceased. Smt. Usha Devi has filed an application un der Section 125 of the Cr. PC. and a compromise has taken place between the parties on 31-10-1990 and thereaf ter, the deceased started giving a sum of Rs. 300/- per month towards the main tenance of his wife. In paragraph 12 of the plaint, she (sic) has claimed that she is entitled for the movable and immov able property including the family pen sion and amount of life insurance also.

4. A written statement was filed by the defendant stating therein that she is the legally married wife of the deceased. It has been stated that she has been left in her parental house by the deceased. In paragraphs 15 and 16 of the addi tional pleas, it has been stated as un der;-

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5. The defendant has also stated that neither the plaintiff-appellant no. 1 nor the plaintiff-appellants nos. 2 to 4 are entitled for any claim by way of the present suit.

6. Smt. Raani Devi has filed her own affidavit, paper no. 31 ka and she has stated regarding the second marriage with the deceased. P. W. 2 Jitar Singh and P. W. 3 Raghuvar Dayal have also filed their affidavit i. e. paper no. 32 ka and 33 ka respectively. All the plaintiff witnesses have stated that all the plain tiff- appellants are the children from the wedlock of Smt. Raani Devi and the de ceased and the plaintiff- appellants are the legal heirs and the successor of the deceased.

7. Smt. Usha Devi has filed her af fidavit D. W. 1, paper no. 36 ka and she has asserted that she is the legally wed ded wife of the deceased. Paragraph nos. 4 and 5 of the affidavit are quoted be low:

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8. A compromise application dated 31-10-1990 was also filed by Smt. Usha Devi and the deceased with regard to the suit filed under Section 125 of the Cr. PC. The compromise application reads as under:

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9. The C. J. M. New Tehri Garhwal has passed the order to the following ef fect:

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10. As will appear from the afore said statement that she has completely denied about the second marriage with the deceased. From the record, it appears that suit no. 36/ 1991, paper no. 30 C/ 5, was filed for divorce and the said suit was dismissed on 1/-8-1992. The find ing recorded by the court in the said suit is quoted below:-

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11. The trial court has dismissed the suit on the ground that she is not enti tled on account of the fact that first wife is alive and no benefit can be given till the first wife is alive and the second marriage is completely barred by the provisions of the Hindu Marriage Act.

12. Section 5 of the Hindu Marriage Act provides as under :-

"5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two

Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, nei ther party

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;

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