—
Orissa High Court
Procedure vs Sadasiba Mohapatra(Dead) And on 28 February, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
S.A. No.172 of 1995
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Smt. Parvati @ Parvati Mohapatra …. Appellants
and others
-versus-
Sadasiba Mohapatra(dead) and …. Respondents
others
Appeared in this case:-
For Appellants : Mr. S.D. Das, Senior Advocate
assisted by Mr. M. Fardish,
Advocate
For Respondents : None
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 31.01.2024 / date of judgment : 28.02.2024
A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellants of this 2nd appeal were the defendants before the
trial court in the suit vide T.S. No.07 of 1986 and they were the
respondents before the 1st appellate court in the 1st appeal vide T.A.
No.04 of 1992.
3. The respondents of this 2nd appeal were the plaintiffs before the
trial court in the suit vide T.S. No.07 of 1986 and they were the
// 2 //
appellants before the 1st appellate court in the 1st appeal vide T.A. No.04
of 1992.
The suit of the plaintiffs(those are the respondents in this 2nd
appeal) vide T.S. No.07 of 1986 was a suit for recovery of possession.
Sadasiba Mohapatra was originally the sole plaintiff in the suit
vide T.S. No.7 of 1986. After his death, plaintiff nos.1 to 9 have been
substituted in his place in that suit vide T.S. No.07 of 1986 as plaintiffs.
4. The case of the plaintiff Sadasiba Mohapatra before the trial court
in the suit vide T.S. No.07 of 1986 was that, the defendant no.1
developed illicit intimacy with him six to seven years prior to the filing
of the suit vide T.S. No.07 of 1986 and due to such intimacy, the plaintiff
permitted the defendant no.1 to stay in his house. As per such permission
of the plaintiff Sadasiba Mohapatra, the defendant no.1 and her children,
i.e., defendant nos.2 to 4 stayed in the house of the plaintiff Sadasiba
Mohapatra and since then till yet, they are staying in that house. When
the plaintiff became old and sick, the defendants quarreled with him
regularly, for which, he(plaintiff Sadasiba Mohapatra) asked the
defendant no.1 to vacate his house (which is the suit house) in order to
enable him (plaintiff) to live peacefully and to use the suit house for his
own purposes. But, the defendant no.1 did not vacate the suit house, for
which, he (plaintiff) Sadasiba Mohapatra issued a notice on 29.04.1985
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to the defendant no.1 requesting her to vacate the suit house since
15.05.1985, but, the defendant no.1 avoided to receive that notice. As the
suit house exclusively belong to the plaintiff Sadasiba Mohapatra and the
defendants have no interest in the same, then, for which, the occupation
of the suit house by the defendants is purely unauthorized. As the
defendants did not vacate the suit house in spite of repeated requests of
the plaintiff, then, without getting any way, the plaintiff Sadasiba
Mohapatra approached the civil court by filing the suit vide T.S. No.07 of
1986 against the defendants praying for recovery of possession of the suit
house by evicting the defendants from the same and to direct the
defendants to pay pendetelite and future damages as fixed by the court
and as well as such other relief, to which, he (plaintiff Sadasiba
Mohapatra) is entitled for, as per law and equity.
5. Having been noticed from the trial court in the suit vide T.S. No.07
of 1986, the defendants filed their joint written statement challenging the
suit of the plaintiff denying the averments made by the plaintiff in his
plaint with their specific stands that, the defendant no.1 is the wife of the
plaintiff, as the plaintiff had married her (defendant no.1) 30 years back
as per social custom. Since such marriage of defendant no.1 with plaintiff
Sadasiba Mohapatra, they(Sadasiba Mohapatra and defendant no.1) were
leading their conjugal life unitedly and out of their wedlock, the
defendant nos.2, 3 and 4 have borne. As such, the defendant no.1 is the
// 4 //
wife of the plaintiff Sadasiba Mohapatra and defendant nos.2, 3 and 4 are
the children of the plaintiff and defendant no.1. They (defendant no.1 and
the plaintiff Sadasiba Mohapatra) were leading their normal conjugal
lives till the year 1983. Late father of the plaintiff Sadasiba Mohapatra
and their relatives were recognizing the defendant no.1 as the wife of the
plaintiff Sadasiba Mohapatra and the suit house was gifted to the
defendant no.1 by her husband, i.e., plaintiff Sadasiba Mohapatra after
the birth of defendant no.2. Since then, the defendants are staying in the
suit house as their own rights. Therefore, the substituted legal heirs of the
deceased plaintiff Sadasiba Mohapatra, i.e., plaintiff nos.1 to 9 have no
manner of right, title and interest in the suit house other than the
defendants. Therefore, the suit of the plaintiff is liable to be dismissed
against them (defendants).
6. Basing upon the aforesaid pleadings and matters in controversies
between the parties altogether five numbers of issues were framed by the
trial court and the said issues are:-
ISSUES
i. Whether the plaintiff has any right, title or interest
over the suit property?
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ii. Whether the defendants are in continuous physical
possession over the suit property and thereby
acquired title?
iii. Whether the suit is maintainable?
iv. To what other relief, if any, the plaintiff is entitled?
and
v. Whether the suit has been under-valued and
improper court fee has been paid for the relief?
7. In order to substantiate the aforesaid relief sought for by the
plaintiffs against the defendants, the substituted legal heirs of the original
plaintiff, i.e., plaintiff nos.1 to 9 examined two witnesses from their side
including plaintiff no.2 as P.W.2 and relied upon series of documents on
their behalf vide Exts.1 to 10.
On the contrary, in order to nullify/defeat the suit of the plaintiff,
the defendants examined seven witnesses from their side including
defendant nos.1 and 2 as D.Ws.7 and 6 and relied upon series of
documents from their side vide Exts.A to R/1.
8. After conclusion of hearing and on perusal of the materials,
documents and evidence available in the record, the trial court answered
issue nos.1 and 2 against the defendants and in favour of the plaintiffs,
but whereas answered the issue nos.3 and 4 against the plaintiffs and in
favour of the defendants, as issue no.5 was not pressed by the parties.
// 6 //
9. Basing upon the findings and observations made by the trial court
in issue nos.3 and 4 against the plaintiffs and in favour of the defendants,
the trial court dismissed the suit of the plaintiffs vide T.S. No.07 of 1986
on contest against the defendants, but, without cost as per its judgment
and decree dated 29.02.1992 and 07.03.1992 respectively assigning the
reasons that, the plaintiff Sadasiba Mohapatra had married defendant
no.1 in the year 1956 and the defendant nos.2, 3 and 4 have borne out of
their wedlock, for which, the defendant nos.2, 3 and 4 are the children of
Sadasiba Mohapatra through the defendant no.1 and as the suit house was
the self acquired property of Sadasiba Mohapatra, for which, after the
death of Sadasiba Mohapatra, the defendants have shares in the same and
the suit house has not been partitioned between all the successors of
Sadasiba Mohapatra and the defendants, for which, the defendants have
right to reside and posses the suit house, therefore, the defendants cannot
be evicted from the suit house. So, the plaintiffs are not entitled to get the
decree of recovery of possession of the suit house against the defendants.
10. On being aggrieved with the aforesaid judgment and decree of the
dismissal of the suit of the plaintiffs vide T.S. No.07 of 1986 passed by
the trial court as per its judgment and decree dated 29.02.1992 and
07.03.1992 respectively, they (plaintiffs) challenged the same by
preferring the 1st appeal being the appellants vide T.A. No.04 of 1992
against the defendants by arraying them (defendants) as respondents.
// 7 //
11. After hearing from both the sides, the 1st appellate court allowed
the 1st appeal vide T.A. No.4 of 1992 of the plaintiffs on contest and set
aside the judgment and decree of the dismissal of the suit of the plaintiffs
vide T.S. No.07 of 1986 passed by the trial court and passed the
judgment and decree of T.A. No.04 of 1992 on dated 12.05.1995 and
19.06.1995 respectively and decreed the suit vide T.S. No.07 of 1986 of
the plaintiffs in part entitling the plaintiffs for recovery of possession of
the suit house evicting the defendants or anybody claiming through them
from the suit house directing them(defendants) to vacate the suit house
within four months from the date of judgment, failing which, the
plaintiffs would be at liberty to recover the possession of the suit house
from the defendants through the process of court assigning the reasons
that, the defendant no.1 is the 2nd wife of the original plaintiff Sadasiba
Mohapatra, as the plaintiff no.1 is his first wife, for which, the marriage
between the deceased Sadasiba Mohapatra and the defendant no.1 is an
invalid marriage. Therefore, neither the defendant no.1 nor the defendant
nos.2 to 4 has any right, title, interest and possession in the suit house as
per law, as the suit house is the self acquired property of deceased
Sadasiba Mohapatra. As, the defendant no.1 is not the legally married
wife of Sadasiba Mohapatra and the defendants nos.2, 3 and 4 have borne
through an invalid marriage, for which, they (defendant nos.2 to 4)
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cannot take protection of Section 16 of the Hindu Marriage Act, 1955 for
establishing their claim over the suit house.
12. On being aggrieved with the aforesaid judgment and decree dated
12.05.1995 and 19.06.1995 respectively passed by the 1st appellate court
in T.A. No.04 of 1992 against the defendants in setting side the judgment
and decree of the trial court passed in T.S. No.07 of 1986, they
(defendants) challenged the same by preferring this 2nd appeal being the
appellants against the plaintiffs by arraying them (plaintiffs) as
respondents.
13. This 2nd appeal was admitted on formulation of the following
substantial question of law, i.e.:-
Whether the judgment and decree passed by the 1st appellate court
in T.A. No.04 of 1992 reversing the judgment and decree of the dismissal
of the suit of the plaintiff passed by the trial court in the suit vide T.S.
No.07 of 1986, on the ground that, the children of the 2nd wife through
invalid marriage with original plaintiff Sadasiba Mohapatra that, the
defendants are not titled to get any interest in the suit house left by
Sadasiba Mohapatra is sustainable under law?
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14. I have already heard from the learned counsel for the
appellants(defendants) only, as none appeared from the side of the
respondents(plaintiffs) to participate in the hearing of this 2nd appeal.
15. The right of the children through an invalid marriage in the
properties left by their father like this suit/appeal at hand has already
been clarified by the Apex Court in the Full Bench decision reported in
2023(4) CCC (S.C.)-64, 2023(3) CCC (S.C.)-281 and 2023(6) Supreme
(S.C.) 420 : Revanasiddapa and others vrs. Mallikarjun and
Others(decided on 01.09.2023)(Para-54) that,
Hindu Marriage Act, 1955–Sections 11 read with Hindu
Succession Act, 1956–“Section 16–Succession rights of child borne to
parents, whose marriage is null and void.
In terms of Sub-section(1) of Section 16, a child of a marriage
which is null and void under Section 11 is statutorily conferred
with legitimacy irrespective of whether, (i) such a child is born
before or after the commencement of Amending Act, 1976.
Where a voidable marriage has been annulled by a decree of
nullity under Section 12, a child ‘begotten or conceived’ before
the decree has been made, is deemed to be their legitimate child
notwithstanding the decree.
A child born from a voidable marriage, which has been annulled,
such a child will have rights to or in property of parents and not in
property of any other person.
As a consequence of substitution of Section 6 in Hindu
Succession Act, Rule of devolution by testamentary or intestate
succession of interest of a deceased Hindu in property of a Joint
Hindu family governed by Mitakshara law has been made the
norm.(Para-54)”
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Hindu Marriage Act, 1955–Sections– 11 and 16 read
with Hindu Succession Act, 1956–Sections– 8 and 10–
Succession rights of child born to parents whose marriage
is null and void–In dividing property of an intestate in terms of
Section 10 of Hindu Succession Act, 1956, no distinction can be
made on the basis of such classification. Once such a child is
deemed legitimate under Section 16 of the Hindu Marriage Act,
1955, such a construction shall also accord with provisions of
Sub-section (3) of Section 16 of Hindu Marriage Act, 1955, which
enunciates that conferment of legitimacy by Sub-section(1) or
Sub-section(2) shall not confer on a such a child “any rights in or
to the property of any person, other than the parents–Legislature
has provided for ascertainment of share of deceased on a notional
basis–Where deceased dies intestate, property would devolve in
terms of Section 8 and distribution would be governed by Rules
specified in Section 10.”(Para-39)
16. On application to the above, clarified propositions of law
enunciated by the Apex Court in the ratio of the aforesaid Full Bench
decision reported in 2023(4) CCC (S.C.)-64, 2023(3) CCC (S.C.)-281
and 2023(6) Supreme (S.C.) 420 : Revanasiddapa and others vrs.
Mallikarjun and Others(decided on 01.09.2023), to this suit/appeal at
hand, it is held that, even though, the defendant nos.2 to 4 are the
children through an invalid marriage between the original plaintiff
Sadasiba Mohapatra and defendant no.1, still then, they (defendant nos.2
to 4) are held under law as their legitimate children and they (defendant
nos.2 to 4) have their rights under law to succeed the properties left by
their father Sadasiba Mohapatra.
17. When the 1st appellate court has held in its judgment and decree
passed in the 1st appeal vide T.A. No.04 of 1992 that, the defendant nos.2
to 4 being the children through an invalid marriage between the original
// 11 //
plaintiff Sadasiba Mohapatra and defendant no.1, they (defendant nos.2
to 4) are not entitled to succeed the suit house left by Sadasiba
Mohapatra, then, in view of the above clarified propositions of law
enunciated by the Apex Court in the ratio of the above Full Bench
decision, the aforesaid judgment and decree passed by the 1st appellate
court in T.A. No.04 of 1992 cannot be sustainable under law.
Because, in view of the ratio of the above Full Bench decision of
the Apex Court, the defendant nos.2 to 4 are held as the legitimate
children of Sadasiba Mohapatra as per law. For which, they(defendant
nos. 2 to 4) are the lawful successors of Late Sadasiba Mohapatra (who
was the original plaintiff in the suit vide T.S. No.07 of 1986). Therefore,
they(defendant nos.2 to 4) have succeeded to the suit house left by
Sadasiba Mohapatra along with the other successors of the said Sadasiba
Mohapatra. As such, they (defendant nos.2 to 4) are the co-owners of the
suit house with the plaintiff nos.1 to 9. So, they (defendant nos.2 to 4)
cannot be evicted from the suit house at the instance of the plaintiff nos.1
to 9, because, they (defendant nos.2 to 4) are also the owners of the suit
house. Therefore, the judgment and decree passed by the 1st appellate
court in T.A. No.04 of 1992 against all the defendants including the
defendant nos.2 to 4 for their eviction from the suit house are not
sustainable under law.
// 12 //
18. As per the discussions and observations made above, when it is
held that, the judgment and decree passed by the 1st appellate court in
T.A. No.04 of 1992 reversing the judgment and decree of the dismissal of
the suit passed by the trial court in T.S. No.07 of 1986 has become
unsustainable under law, then at this juncture, there is justification under
law for making interference with the same through this 2nd appeal filed
by the appellants(defendants). Therefore, there is merit in this 2nd appeal
of the appellants(defendants). The same must succeed.
19. In the result, the 2nd appeal filed by the appellants(defendants) is
allowed on merit, but without cost.
20. The judgment and decree dated 12.05.1995 and 19.06.1995
respectively passed by the 1st appellate court in T.A. No.04 of 1992 are
set aside. The judgment and decree dated 29.02.1992 and 07.03.1992
respectively passed by the trial court in T.S. No.07 of 1986 are
confirmed.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 28th of February, 2024/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: PA
Reason: Authentication
Location: OHC, CUTTACK
Date: 28-Feb-2024 17:11:33
