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2002 Supreme(All) 523
High Court of Allahabad
B.K.Rathi, J.
Dinanath Verma
Vs.
Gokaran
Second Appeal No. 1761 of 19
Decided on : Apr 12, 2002
Ashutosh Srivastava, Rajeev Gupta, S.S.Tiwari, A.C.Chaturvedi, J.P.Pandey, H.P.Mishra, R.K.Yadav, V.P.Mathur, L.C.Srivastav
The main legal point established is that the absence of evidence for a legal remarriage, the binding admission of the widow, and the provisions of relevant acts influenced the court's decision in favor of the defendants.
Headnote:
Customary Marriage - Property Dispute - U.P. Consolidation of Holdings Act, Hindu Succession Act, Hindu Widow's Re-marriage Act - Section 49 of U.P. Consolidation of Holdings Act, Section 14 of Hindu Succession Act, Section 2 of Hindu Widow's Re-marriage Act
Fact of the Case:
The suit was filed for partition of 1/3 share in disputed houses and recovery of arrears of rent. The plaintiff claimed that the widow was divested of the property after re-marriage, while the defendants contested this claim.
Finding of the Court:
The court found that there was no evidence of a legal remarriage, and the widow was declared as the exclusive owner of the property. The court also held that the plaintiff had no right in the property and the sale deeds executed by the widow in his favor were void. The trial court's dismissal of the suit was upheld.
Issues: The issues involved the jurisdiction of the court, the effect of the dismissal of a previous suit, and the interpretation of the Hindu Succession Act and Hindu Widow's Re-marriage Act.
Ratio Decidendi: The court relied on the lack of evidence for a legal remarriage, the binding admission of the widow, and the provisions of the U.P. Consolidation of Holdings Act and Hindu Succession Act to decide the case.
Final Decision: The appeal was allowed, the judgment and decree of the first appellate court were set aside, and that of the trial court was restored.
B. K. Rathi, J.
1. THE Suit No. 20 of 1972 was filed in the court of Civil Judge, Basti by the respondent No. 1 for the relief of partition of 1/3 share of respondent No. 1 in the disputed four houses, details at the foot of the plaint and for recovery of Rs. 2,136 being arrears of rent from defendants Nos. 1 and 2 and Rs. 840 as arrears of rent from defendants Nos. 6 and 7.
2. THE facts of the case in brief are that there was one Pati Raj Sonar, who left Smt. Yashoda as his widow and Tirath Ram as his son. Tirath Ram was married to Smt. Lakhraji, appellant No. 8. Tirath Ram died on 14.10.1967, leaving Smt. Lakhraji his wife, Smt. Yashoda Devi his mother, Smt. Kesari Devi and Smt. Kapura Devi, respondent Nos. 2 and 3 as his daughters. It is alleged in the plaint that after the death of Tirath Ram, Smt. Lakhraji re-married with Phagoo, who was appellant No. 1 in this appeal and died during the pendency of the appeal. That according to the custom prevailing in the locality regarding the community to which parties belong, Smt. Lakhraji divested of the property, which was inherited by her from her husband, Tirath Ram after re-marriage. That the plaintiff purchased the property from Yashoda Devi, mother of Tirath Ram, who had 1/3 share in the disputed houses after the death of Tirath Ram and re-marriage of Lakhraji.
It was also pleaded that Smt. Lakhraji also executed sale deeds of the disputed houses in favour of other appellants. That Smt. Lakhraji has no right to execute the sale deed. She had no share in the property. That the appellants Nos. 1 and 2 had realised Rs. 2,136 as rent from the purchasers and they are liable to pay this amount to the plaintiff. That the respondent No. 1 is also entitled to get Rs. 2,136 as arrears of rent from the other appellants.
3. THE respondent Nos. 2 and 3 claimed 2/3rd share in the disputed houses and also paid court fee and made request for partition of their 2/3 share in the disputed house.
4. THE suit was contested by the appellants and they have pleaded that Smt. Lakhraji never re-married to Phagoo. That there is no such custom in the community that on the re-marriage of the widow, she is divested from the property succeeded by her from her previous husband. That Smt. Yashoda Devi had no right in the property. She surrendered her rights in the property in favour of Tirath Ram and after the death of Tirath Ram, the property was inherited by Smt. Lakhraji. That the disputed property is agricultural land in which houses have been constructed. That during the consolidation operations, the entire property was entered in the name of Smt. Lakhraji and, therefore, the claim of Smt. Yashoda Devi and the plaintiff and respondent Nos. 2 and 3 is barred by Section 49 of U. P. Consolidation of Holdings Act.
The trial court recorded the oral and documentary evidence and has held that Smt. Lakhraji has never re-married with Phagoo. That there is no custom in the community of Tirath Ram of divesting the widow of the property on remarriage after the death of husband. That the plaintiff had no share in the property. That he is not entitled to damages and rent. Accordingly, the trial court dismissed the suit.
5. AGGRIEVED by the dismissal of the suit, Gokaran, respondent No. 1 preferred Civil Appeal No. 492 of 1980, which has been allowed and suit for partition of 2/3 share and recovery of Rs. 2,136 from the appellant Nos. 1 and 2 and Rs. 840 from appellant Nos. 6 and 7 has been decreed. AGGRIEVED by the decree, the present appeal has been preferred.
6. I have heard Sri Rajeev Gupta, learned counsel for the appellants and Sri H. K. Mishra, learned counsel for the respondent Nos. 2 and 3, who have come to contest the appeal. The learned counsel for the respondent No. 1, who filed the suit did not appear and, therefore, could not be heard. I have gone through the entire record.
Various substantial questions of law were framed by the appellants in the memo of appeal. However, order sheet shows that the a
