Chintaram And Ors. vs Smt. Pushibai And Anr. on 6 December, 1999

Madhya Pradesh High Court
Chintaram And Ors. vs Smt. Pushibai And Anr. on 6 December, 1999
Equivalent citations: 2000 (2) MPHT 67
Author: S Khare
Bench: S Khare


ORDER

S.P. Khare, J.

1. This is defendants’ second appeal under Section 100 C.P.C..

2. The land in dispute belonged to Lusru. He had no issue from his first wife. He married Laxminbai in 1947-48 in churi form. This marriage having taken place before the year 1955 was valid even in the presence of the first wife. Both the Courts below have held that there was a caste custom which permitted the husband to remarry if he had no issue from the first wife. Both the Courts have concurrently found that this was a valid marriage. The first appellate Court on the basis of evidence on record has held that the original plaintiff Tulsiram was son of Lusru through Laxminbai. The trial Court had held that Tulsiram was a child of 1 1/2 months when Lusru married to Laxminbai.

After perusal of the evidence this Court is of the opinion that the view taken by the first appellate Court is correct. It was difficult to expect direct evidence of an event which took place 40 years ago. Tulsiram was always treated as son of Lusru.

3. The legal position would not be different even if Tulsiram is treated to be son of Laxminbai through her former husband. It has been found that Lusru died on 17-7-1975 and his widow Laxminbai died on 23-4-1976. On the death of Lusru his property would devolve upon his widow Laxminbai and she became its absolute owner in view of Section 14 of the Hindu Succession Act, 1956. On her death the succession would be governed by Section 15 of the Act. That Section provides that the property of a female Hindu dying intestate shall devolve (a) firstly upon the sons and daughters and also the husband. In the present case there was no daughter or husband of Laxminbai when she died. Even if Tulsiram was her ‘son’ through her former husband he would inherit. In K.P. Lodhi v. Har Prasad, AIR 1971 M.P. 129, it has been held by this Court that the female’s property would devolve on her sons and daughters “even where the sons and daughters are born of the first husband and the property left by the female was inherited by her from the second husband”. The decisions of Himachal Pradesh High Court in Roshan Lal v. Dalipa, AIR 1985 H.P. 8 and Bombay High Court in R.A. Patil v. A.B. Redekar, AIR 1969 Bom. 205, are to the same effect. In Mulla’s Hindu Law 17th Edition pages 330 to 333 Illustration 3 to Entry (a) of Section 15 of the Act directly covers this point. That illustration is : “A dies leaving her surviving a son S by her first husband and property which she had inherited from her second husband B. The property will devolve upon Section under Entry (a) and not upon the heirs of B”. In view of this legal position, Tulsiram is entitled to get the lands of Lusru in preference his nephew Kunjram. The transferees of Kunjram the defendants No. 2 to 4 do not get any right to the lands in dispute.

4. The question of law which arose in this case has already been settled. Therefore, no substantial question of law arises. This appeal is dismissed in limine.

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