Smt. Vijaya Vilas Malbari v. Smt. Vrushali Vilas Malbari And ORS

k 1/3 28 ia 20088.22 in sa as.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.751 OF 2022 WITH CIVIL APPLICATION NO.694 OF 2019 IN SECOND APPEAL NO.751 OF 2022 MRS. VIJAYA VILAS MALBARI ....Appellant/Applicant V/S SMT. VRUSHALI VILAS MALBARI & ORS ....Respondents ...

WITH INTERIM APPLICATION NO.20088 OF 2022 IN SECOND APPEAL NO.751 OF 2022 SMT. VRUSHALI VILAS MALBARI ....Applicant

IN THE MATTER BETWEEN

MRS. VIJAYA VILAS MALBARI ....Appellant V/S SMT. VRUSHALI VILAS MALBARI & ORS ....Respondents ...

Mr. Mandar Limaye for the Appellant/Applicant in SA and IA. Ms. Neeta P. Karnik for the Respondent No.1 in SA and for the Applicant in IA 20088 of 2022.

...

CORAM: SANDEEP V. MARNE, J.

DATE : JANUARY 11, 2024.

P.C.:

The Appellant has filed the present Appeal challenging the judgment and decree dated 11 December 2018 passed by the District 1/3

k 2/3 28 ia 20088.22 in sa as.doc Judg, Thane, in Civil Appeal No.33 of 2016 thereby confirming the judgment and decree dated 29 July 2011 passed by the Civil Judge Senior Division, Thane in Special Civil Suit No.480 of 2007. It appears that the deceased Vilas Malbari had solemnized two marriages. His first marriage was with Plaintiff Vrushali. The marriage between Vilas and Vrushali is not under dispute. It appears that subsequently Vilas married Vijaya. It is the Appellant Vijaya's case that Vilas had divorced Vrushali and on such representation, the marriage between Vilas and Vijaya was solemnized. Perusal of the findings recorded by the Trial Court and the First Appellate Court would indicate that no material could be produced by the Appellant Vijaya to prove dissolution of marriage between Vilas and Vrushali.

There is no dispute to the position that the solemnization of marriage between Vilas and Vijaya is subsequent to the marriage between Vilas and Vrushali. Once Appellant Vijaya fails to prove that the marriage between Vilas and Vrushali was dissolved by decree of divorce, her marriage becomes void. The children born out of void marriage are however legitimate. It is on this count that the Trial Court and the First Appellate Court have held that Appellant Vijaya's children - Satish and Rupesh to be included in the heirship certificate. Thus though Appellant Vijaya is not held entitled for inclusion of her name in the heirship certificate, the names of her children are included in heirship certificate. No error can be traced in the concurrent findings recorded by the Trial and First Appellate Court.

k 3/3 28 ia 20088.22 in sa as.doc No substantial question of law is involved in the present Appeal. The Second Appeal is accordingly rejected.

In view of the disposal of the Second Appeal, nothing survives in the Civil Application and Interim Application and the same are disposed of accordingly.

(SANDEEP V. MARNE, J.) Digitally signed by SUDARSHAN RAJALINGAM KATKAM Date:

2024.01.15 13:09:01 +0530 SUDARSHAN RAJALINGAM KATKAM 3/3