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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 115 of 2010
Shankar Prasad S/o Guru Prasad, Aged about 53
years, R/o Village Sulsuli (Chando), P.S.
Basantpur, Tahsil Pal, Distt. Surguja,
Chhattisgarh.
Appellant/Plaintiff
Versus
1. Radheshyam S/o Devsharan, Aged about 66 years.
2. Saligram, S/o Radheshyam, Aged about 46 years.
3. Ramji Prasad, S/o Radheshyam, Aged about 43
years.
4. Pramod Kumar S/o Radheshyam, Aged about 35 years.
5. Sanjeev Prasad, S/o Radheshyam, Aged about 33
years.
All R/o Village Sulsuli, P.S. Basantpur, Tahsil
Pal, Distt. Surguja, Chhattisgarh.
6. State of Chhattisgarh, Through Collector Surguja,
Ambikapur, Chhattisgarh.
Respondents/Defendants
For Appellant :
Mr. Shakti Raj Sinha, Advocate
For Respondents 1 – 5 :
Mr. Anurag Dayal Shrivastava, Advocate
For Respondent 6/State :
Mr. Ankur Kashyap, P.L.
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Hon’ble Shri Justice Sanjay K. Agrawal
Judgment on Board (Through Video Conferencing)
13/07/2021
1. This second appeal preferred by the
appellant/plaintiff was admitted for hearing on
06/01/2021 by formulating the following two
substantial questions of law :
“1. Whether the first appellate Court is
justified in holding that the original
plaintiff Mus. Bhagmaniya Bai was not
entitled to succeed the property of
Devsharan in view of the fact that the
trial Court has already held entitled to
succeed the property of Devsharan and no
appeal or crossobjection was preferred by
defendant No. 1 questioning that part of
finding and that has become final, by
recording a finding which is perverse to
the record ?
2. Whether the trial Court is justified in
closing the opportunity of the plaintiff to
lead evidence to prove the due execution
and attestation of Will when the affidavit
of Satendra Prasad – one of the attesting
witnesses, has already been filed on 2811
2005, by recording a finding which is
perverse to the record ?”
[For the sake of convenience, the parties will
hereinafter be referred to as per their status
and ranking given in the plaint before the trial
Court.]
2. Devsharan and Sahdev were two brothers.
Devsharan was firstly married to Marchi and they
had no issue. The other brother Sahdev was
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married to Bhagmaniya Bai. Since there was no
issue of Devsharan with Markhi, after the death
of Sahdev, Devsharan entered into second
marriage with Bhagmaniya Bai during the lifetime
of Markhi.
3. It is the case of the plaintiff that after the
death of Devsharan, Bhagmaniya Bai being his
widow succeeded the suit property owned and held
by Devsharan and thereafter executed a Will
dated 21/05/1993 (Ex. P/1) in favour of
plaintiff by which he has become titleholder of
the suit property and is entitled for decree for
declaration of title, partition and recovery of
possession.
4. Resisting the suit, defendants filed their
written statement stating inter alia that since
Devsharan married with Bhagmaniya Bai during the
lifetime of his first wife Markhi, their
marriage was void and therefore, Bhagmaniya Bai
would not succeed to the property of Devsharan
and she would not be entitled to execute the
Will (Ex. P/1) in favour of the plaintiff, as
such, the suit filed by the plaintiff deserves
to be dismissed.
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5. Learned trial Court, upon appreciation of oral
and documentary evidence on record, though
dismissed the suit vide its judgment and decree
dated 31/12/2005 but while answering issue No. 1
held that Bhagmaniya Bai has succeeded the suit
property owned by Devsharan after his death and
she is competent to execute the Will (Ex. P/1)
in favour of the plaintiff but the said Will has
not been proved in accordance with law. On
appeal being preferred by the plaintiff, learned
first appellate Court affirmed the judgment and
decree of the trial Court and dismissed the
appeal filed by the plaintiff vide impugned
judgment and decree dated 26/11/2009 but
reversed the finding recorded by the trial Court
with regard to issue No. 1 and held that
Devsharan married with Bhagmaniya Bai during the
lifetime of his first wife Markhi, as such,
their marriage is void as per the provisions
contained under Section 5(i) read with Section
11 of the Hindu Marriage Act, 1955 and
Bhagmaniya Bai would not succeed the suit
property owned by Devsharan. Now, this second
appeal has been preferred by the
appellant/plaintiff under Section 100 of CPC in
which two substantial questions of law have been
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formulated and set out in the opening paragraph
of this judgment.
6. Mr. Shakti Raj Sinha, learned counsel appearing
for the appellant/plaintiff, would make the
following submissions :
(i) that, the first appellate Court fell into
legal error in reversing the finding recorded by
the trial Court with regard to issue No. 1
wherein it has clearly been held that Bhagmaniya
Bai succeeded the property of Devsharan after
his death. Such a finding could not have been
reversed in absence of crossobjection filed by
the defendants before the first appellate Court
in the first appeal.
(ii) that, though in order to prove the Will
(Ex. P/1), the affidavit/evidence of one of the
attesting witnesses namely Satendra Prasad was
filed on 28/11/2005, but abruptly the
opportunity to lead evidence was closed and no
opportunity to lead evidence was granted due to
which plaintiff suffered prejudice.
As such, the instant appeal deserves to be
allowed by setting aside the judgment and decree
passed by both the Courts below.
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7. Mr. Anurag Dayal Shrivastava, learned counsel
appearing for the respondents/defendants, would
make the following submissions :
(i) that, filing of crossobjection on the part
of defendants was not necessary in order to
question the finding recorded by the trial Court
and only in order to question the decree passed
by the trial Court, filing of crossobjection
would have been necessary. He would rely upon
the decision rendered by the Supreme Court in
the matter of Banarsi and Others v. Ram Phal1
which has been followed by this Court in the
matter of Thakumal (Dead) through LRs. Mamtabai
Others v. Chakradhar Rao Bhosle2.
(ii) that, the first appellate Court has rightly
reversed the finding of the trial Court with
regard to issue No. 1 and held that the marriage
of Bhagmaniya Bai with Devsharan was void as
their marriage was solemnized during the
lifetime of Devsharan’s first wife Markhi,
therefore, Bhagmaniya Bai, though being the
widow of Devsharan, would not fall within Class
I heir as prescribed in the Schedule enacted in
the Hindu Succession Act, 1956 since she was not
1 (2003) 9 SCC 606
2 2009 (1) CGLJ 150
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the legally wedded wife of Devsharan. Moreover,
since Bhagmaniya Bai would not succeed the
property of Devsharan, she was also not entitled
to execute the Will in favour of plaintiff.
As such, the judgment and decree passed by the
first appellate Court requires no interference
by this Court in exercise of jurisdiction under
Section 100 of CPC and the instant appeal
deserves to be dismissed.
8. I have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. It is not in dispute that the suit property was
owned and held by Devsharan. He was firstly
married with Markhi and since he had no issue
out of his wedlock with Markhi, he married with
his brother’s widow Bhagmaniya Bai during the
lifetime of Markhi. Plaintiff is the grandson of
Sahdev in whose favour Bhagmaniya Bai executed
Will dated 21/05/1993 (Ex. P/1) and defendant
No. 1 Radheshyam is the son of Devsharan and
Bhagmaniya Bai and defendants No. 2 to 5 are
sons of defendant No. 1. It is also not in
dispute that the marriage of Devsharan with
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Bhagmaniya Bai was solemnized during the
lifetime of his first wife Markhi and therefore,
the first appellate Court has held that by
virtue of Section 5(i) read with Section 11 of
the Act of 1955, their marriage is void as
Section 5(i) enunciates that a marriage may be
solemnized between any two Hindus if neither
party has a spouse living at the time of the
marriage and the consequence of a marriage in
violation of Section 5(i) of the Act of 1955 has
been provided under Section 11 of the Act of
1955 which clearly provides that any marriage
solemnized after the commencement of this Act
shall be null and void and may, on a petition
presented by either party thereto, be so
declared by a decree of nullity if it
contravenes any one of the conditions specified
in clauses (i), (iv) and (v) of Section 5.
10. Section 5(i) of the Act of 1955 introduces
monogamy which is essentially the voluntary
union for life of one man with on woman to the
exclusion of all others. It enacts that neither
party must have a spouse living at the time of
marriage. The expression “spouse” employed
herein means lawfully wedded husband or wife.
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Before a valid marriage can be solemnized, both
parties to such marriage must be either single
or divorced or a widow or widower and only then
they are competent to enter into valid marriage.
Section 11 of the Act of 1955 declares that a
marriage solemnized after commencement of the
Act of 1955, in contravention of any of the
conditions specified in clauses (I), (iv) and
(v) of Section 5 of the Act of 1955 shall be
null and void in respect of such marriages, it
is provided that application for declaration of
nullity can be filed.
11. The Supreme Court in the matter of Smt. Lila
Gupta v. Laxmi Narayan and Others3 held that
Section 5(i) of the Act of 1955 ensures monogamy
and any marriage solemnized after the
commencement of the Act of 1955 shall be null
and void by virtue of Section 11 of the Act and
may, on a petition presented by either party
thereto be so declared by decree of nullity if
it contravenes any of the conditions specified
in Clause (I), (iv) and (v) of Section 5 of the
Act of 1955.
3 (1978) 3 SCC 258
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12. Similarly, in the matter of Smt. Yamunabai
Anantrao Adhav v. Ranantrao Shivram Adhav 4 Their
Lordships of the Supreme Court have held that a
marriage in contravention of Section 5(i) of the
Act of 1955 is null and void. It was further
held that marriages covered by Section 11 are
void ipsojure, that is, void from the very
inception and have to be ignored as not existing
in law at all and when such question arises,
although Section permits a final declaration to
be made on presentation of a petition. It is not
essential to obtain in advance such a final
declaration from a Court in a proceeding
specifically commenced for the purpose. Similar
is the proposition laid down by the Supreme
Court in A. Subash Babu v. State of Andhra
Pradesh and Anr.5 and M.M. Malhotra v. Union of
India and Others6.
13. Reverting to the facts of the instant case in
light of the aforesaid legal analysis, it is
quite vivid that since Devsharan did not have
any issue with his first wife Markhi, he married
with Bhagmaniya Bai during the lifetime of
Markhi which is in violation of Section 5(1)(i)
4 AIR 1988 SC 644
5 (2011) 7 SCC 616
6 (2005) 8 SCC 351
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of the Act of 1955 and by virtue of Section 11
of the Act of 1955, their marriage would be null
and void and since the marriage of Devsharan
with Bhagmaniya Bai was void, Bhagmaniya Bai
would not succeed to the property of Devsharan
after his death by virtue of the Schedule
enacted under Section 8 of the Hindu Succession
Act, 1956. A widow is also Class I heir and the
widow of a male Hindu inherits simultaneously
with the son, daughter and others specified in
Class I of the Schedule, but the “widow”
mentioned among Class I heirs is a lady who was
validly married under the provisions of the
Hindu Marriage Act, 1955 and who has acquired
the status of widow by virtue of death of her
husband. If her marriage with the person is void
under law, on his death she would not get status
of widow under Class I of the Schedule of Hindu
Succession Act, 1956. In the instant case, it
has already been held the marriage of Devsharan
with Bhagmaniya Bai was void, therefore, after
the death of Devsharan, Bhagmaniya Bai cannot be
conferred with the status of widow and she
cannot be declared as Class I heir within the
meaning of Section 8 of the Hindu Succession
Act, 1956, as such, she would not succeed to the
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property of Devsharan. Consequently, the first
appellate Court has rightly held that Bhagmaniya
Bai was not entitled to succeed the property of
her husband Devsharan as their marriage was void
by virtue of Section 5(i) read with Section 11
of the Act of 1955.
14. Now, the question is whether the first appellate
Court was justified in reversing the finding
recorded by the trial Court with regard to issue
No. 1, as according to learned counsel for the
appellant/plaintiff, the said finding was not an
issue before the first appellate Court and since
defendants did not file any crossobjection, the
finding recorded by the trial Court had become
final and it was not open for the first
appellate Court to reach to a different
conclusion other than what has been recorded by
the trial Court.
15. In order to answer this question, it would be
appropriate to notice Order 41 Rule 22 of CPC,
which states as under :
“ORDER XLI
APPEALS FROM ORIGINAL DECREES
22. Upon hearing respondent may object to
decree as if he had preferred separate
appeal. (1) Any respondent, through he
may not have appealed from any part of the
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decree, may not only support the decree
but may also state that the finding
against him in the Court below in respect
of any issue ought to have been in his
favour; and may also take any cross
objection to the decree which he could
have taken by way of appeal, provided he
has filed such objection in the Appellate
Court within one month from the date of
service on him or his pleader of notice of
the day fixed for hearing the appeal, of
within such further time as the Appellate
Court may see fit to allow.
(2) Form of objection and provisions
applicable thereto. Such crossobjection
shall be in th form of a memorandum, and
the provisions of Rule 1, so far as they
relate to the form and contents of the
memorandum of appeal, shall apply thereto.
(3) [ * * *]
(4) Where, in any case in which any
respondent has under this rule filed a
memorandum of objection, the original
appeal is withdrawn of is dismissed for
default, the objection so filed may
nevertheless be heard and determined after
such notice to the other parties as the
Court thinks fit.
(5) The provisions relating to appeals by
indigent persons shall, so far as they can
be made applicable, apply to an objection
under this rule.”
16. Their Lordships of the Supreme Court in the
matter of Banarsi (supra) have explained the
need of filing crossobjection and crossappeal
and held as under in paragraphs 10 and 11 :
“10. The CPC Amendment of 1976 has not
materially or substantially altered the law
except for a marginal difference. Even under
the amended Order 41 Rule 22 subrule (1) a
party in whose favour the decree stands in
its entirety is neither entitled nor obliged
to prefer any cross objection. However, the
insertion made in the text of subrule (1)
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makes it permissible to file a cross
objection against a finding. The difference
which has resulted we will shortly state. A
respondent may defend himself without filing
any cross objection to the extent to which
decree is in his favour; however, if he
proposes to attack any part of the decree he
must take cross objection. The amendment
inserted by 1976 amendment is clarificatory
and also enabling and this may be made
precise by analysing the provision. There
may be three situations:
(i) The impugned decree is partly in favour
of the appellant and partly in favour of the
respondent;
(ii) The decree is entirely in favour of the
respondent though an issue has been decided
against the respondent;
(iii) The decree is entirely in favour of
the respondent and all the issues have also
been answered in favour of the respondent
but there is a finding in the judgment which
goes against the respondent.
11. In the type of case (i) it was necessary
for the respondent to file an appeal or take
cross objection against that part of the
decree which is against him if he seeks to
get rid of the same though that part of the
decree which is in his favour he is entitled
to support without taking any cross
objection. The law remains so post amendment
too. In the type of cases (ii) and (iii)
preamendment CPC did not entitle nor permit
the respondent to take any cross objection
as he was not the person aggrieved by the
decree. Under the amended CPC, read in the
light of the explanation, though it is still
not necessary for the respondent to take any
cross objection laying challenge to any
finding adverse to him as the decree is
entirely in his favour and he may support
the decree without cross objection; the
amendment made in the text of subrule (1),
read with the explanation newly inserted,
gives him a right to take cross objection to
finding recorded against him either while
answering an issue or while dealing with an
issue. The advantage of preferring such
cross objection is spelled out by subrule
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(4). In spite of the original appeal having
been withdrawn or dismissed for default the
cross objection taken to any finding by the
respondent shall still be available to be
adjudicated upon on merits which remedy was
not available to the respondent under the
unamended CPC. In preamendment era, the
withdrawal or dismissal for default of the
original appeal disabled the respondent to
question the correctness or otherwise of any
finding recorded against the respondent. ”
17. Similar issue came up for consideration before
this Court in the matter of Thakumal (supra)
wherein the following substantial question of
law was framed in paragraph 6(C) :
“(C) Whether in the absence of a cross
objection having been filed by the
respondent/plaintiff, the lower appellate
Court was justified in reversing finding
recorded by the trial Court on issue No. 6?”
This Court, while answering the abovestated
substantial question of law which is a similar
issue as in this appeal, held in paragraph 11 as
under :
“11. I shall now deal with substantial
question of law No. (C). In Jhawarlal
Bothara Vs. Smt. Kusumlata Agarwal (dead)
through her L.Rs. I.D. Agrawal and others7,
this Court held as under :
“15. A reading of Order 41, Rule 22 of the
Code of Civil Procedure, 1908 leaves no
room for any doubt that if the respondent,
in whose favour the decree is passed,
desires to support the decree, it is open
to him to urge in the other parties appeal
that the finding of the Court below against
him on any given aspect ought to have been
in his favour and it is not mandatory for
the respondent to file a crossobjection
7 2007 (3) CGLJ 175
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under Order 41. Rule 22 of the Code. The
words “but may also state that the finding
against him in the Court below in respect
of any issue ought to have been in his
favour” in Order 41, Rule 22 of the Code
permits the respondent, who may not have
appealed from any part of the decree to
support the decree and state that the
finding against him in the Court below in
respect of any issue ought to have been in
his favour. When the respondent, thus,
supports the decree, he need not file any
crossobjection because when the decree is
in his favour, crossobjection in such a
situation is inconceivable. Though the
respondent is not precluded under Order 41,
Rule 22 of the Code from filing a cross
objection against a finding recorded by the
Court passing the decree in his favour, it
is not mandatory for him to do so because
the decree is in his favour and he may,
during the course of arguments, agitate
that the finding against him in the Court
below in respect of any issue also ought to
have been in his favour. A similar view has
been taken in Manoharan Chetti v. M/s. C.
Coomaraswamy Naidu and Sons, Madras, AIR
1980 Madras 212, Naresh Ahir v. Mst.
Barhiya, AIR 1985 Patna 287 and Jatani Dei
v. Udayanath Behera, AIR 1983 Orissa 252.
Therefore, the contention of the learned
counsel for the respondent/plaintiff that
due to nonfiling of a crossobjection
under Order 41, Rule 22 of the Code by the
appellant/defendant before the lower
appellate Court he is precluded from doing
so in second appeal is liable to rejection.
”
The above decision rendered by this Court
applies with full force to the question of
law under consideration. Question of law
No. (C) is accordingly decided in the
affirmative.”
18. In view of the aforesaid principle of law laid
down by the Supreme Court in Banarsi (supra) and
by this Court in Thakumal (supra), I am of the
opinion that the defendants were not required to
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file any crossobjection in the first appeal
against the finding recorded by the trial Court
while answering issue No. 1. In that view of the
matter since Bhagmaniya Bai had not succeeded
the property of Devsharan, she was not empowered
to execute the Will (Ex. P/1) in favour of the
plaintiff which is said to have not been proved
by the two Courts below.
19. As a fallout and consequence of the aforesaid
discussion, the substantial question of law No.
1 is answered in favour of defendants and
against the plaintiff and substantial question
of law No. 2 need not be looked into in view of
nonentitlement of Bhagmaniya Bai to execute the
Will in favour of plaintiff.
20. The second appeal, being devoid of merits,
deserves to be and is accordingly dismissed
leaving the parties to bear their own cost(s).
21. Decree be drawnup accordingly.
Sd/
(Sanjay K. Agrawal)
Judge
Harneet