The main legal point established in the judgment is that the remarriage of a widow during the lifetime of her deceased husband affects her status as a widow and her rights to the deceased husband's property.

A.K. Sharma, J.:-

1. This appeal has been preferred by the appellant -defendant under Section 100 of CPC being aggrieved by the judgment and decree dated 17/02/2007 passed by learned First Additional District Judge Ashok Nagar, Guna in Civil Appeal No. 21-A/06 whereby the judgment and decree dated 21/3/2006 passed by learned Civil Judge, Class-I, Guna in Civil Suit No. 108- A/04 has been reversed.

2. This Court vide order dated 12/02/2009 admitted this appeal on the following substantial question of law:

"Whether impugned judgment and decree is not sustainable in law on account of non consideration of effect of Section 2 of the Hindu Widows Remarriage Act, 1956, despite finding in para 18 that Godawari Bai had made Kanhaiyalal as husband after death of Ratan Singh?"

3. The brief facts giving rise to the appeal are that respondents-plaintiffs No. 1 to 3 have filed a suit for declaration of title and partition in respect of agricultural land survey No, 103, 104, 105, 106, 109, and 110 having total area of 5.529 hectare situated in village Shadhora, Tahsil and District Ashok Nagar. At the time of Zamidari, Bhagwan Singh was the owner of the above said land. He breathed his last leaving behind two sons Laxman Singh and Ratan Singh, who became owner of half share .each of the suit land. Laxman Singh died about 30 years prior to filing of the suit. Wife of Laxman and her children are owner of the share of the property of the Laxman. Ratan Singh died about 27 years before filing of the suit. Plaintiffs and defendant-Ram Singh are owner of the share of property belonging to Ratan Singh. Without knowledge of the plaintiffs, name of Ram. Singh was recorded in revenue record. On 29/07/2004, when plaintiffs came to know about this fact, they filed a suit for declaration of possession stating that they are co-owners and possession holder of the suit land.

4. The appellant-defendant in his written statement submitted that plaintiffs Ushabai and Gulab Singh are not the children of late Shri Ratan Singh. During last time of Ratan Singh, plaintiff Godawari left the house of Ratan Singh and thereafter she was residing with Kanhaiyalal. Plaintiffs Ushabai and Gulab Singh are the children of Kanhaiyalal, therefore, they have no right in the property. Father of defendant Ratan Singh had executed a Will in favour of defendant Ram Singh. It has also been contended that Godawari Bai is not legally wedded wife of Ratan Singh. She was married to Hazari and thereafter live with Ratan Singh and in the last time of Ratan Singh, she was residing with Kanhaiya at Rajasthan since 1973, therefore, plaintiffs are not entitled to any share in the property.

5. Learned trial Court rejected the suit holding that it is not proved that suit land is of co-ownership of plaintiffs and defendant and that the plaintiffs are not entitled for partition and separate possession of the suit land. The finding of the learned trial Court has been reversed by learned appellate Court holding that Godawari Bai is legal wife of late Ratan Singh and she has remarried with Kanhaiyalal after the death of Ratan Singh. Therefore, Godawari is widow of Ratan Singh and plaintiffs No. 2 and 3 are children of Ratan Singh. They are not the children of Kanhatyalal. Learned lower appellate Court has also held that no will has been executed by Ratan Singh in favour of defendant Ram Singh and both the plaintiffs and defendant are having 1/4 share each in the suit land and plaintiffs are entitled to get possession of their share after partition.

6. For decision of this appeal and substantial question of law, the main question for consideration is whether Godawari Bai married Kanhaiyalal in the lifetime of Ratan Singh or not?

There is no dispute that Godawari married Karhaiyalal of village Faliya, District Baran, Rajasthan.

7. So far as the question of marriage of Godavari Bai with Kanhaiyalal during lifetime of Ratan Singh is concerned, Ex. D/17 is a document "Will" (Panchnama), executed by Ratan