Common Judgment                               Vakiti Ramakrishna Reddy, J.

1. This Appeal Suit is filed by the Appellants/Defendants against the Judgment and Decree dated 04.06.2002 in O.S. No. 39 of 2000 on the file of the Family Court at Secunderabad, whereby the suit filed by the plaintiffs against the defendants for declaration and for recovery of possession of the Plaint Schedule Property, came to be decreed in favour of the plaintiffs.

2. It is pertinent to note that along with the present Appeal, the Appellants/Defendants have also filed a Civil Miscellaneous Petition vide C.M.P. No. 11472 of 2003 in A.S. No. 999 of 2003, invoking Order XLI Rule 27 of the Code of Civil Procedure, seeking permission to adduce additional evidence namely, the Will Deed dated 29.03.1998 and the other connected documents.

3. For the sake of convenience and clarity, the parties shall hereinafter be referred to as per their status before the Trial Court.

I. Brief Facts:

4. The plaintiff No.1 is the legally wedded wife of late P. Venkata Swamy, their marriage having been solemnized on 09.05.1965 at Kazipet as per Hindu rites and customs. Late P. Venkata Swamy was employed as a Painter in the Railways, he retired from service on 31.05.1998, and subsequently died on 29.08.1999. During his life time, he nominated the plaintiff No.1 to receive his pensionary benefits, and she is presently receiving family pension from South Central Railway. The plaintiff No.2 is the daughter of late P. Venkata Swamy. She is married and residing with her husband. Upon the intestate death of late P. Venkata Swamy, the plaintiffs succeeded to his estate, including the residential house bearing Plot No.10 at Mettuguda.

5. It is the case of the plaintiffs that on 29.08.1999 i.e., the very date of death of late P. Venkata Swamy, the defendants trespassed into the suit schedule property claiming that the defendant No.1 was the second wife of the deceased. It is further alleged that the defendants unlawfully occupied a portion of the said house property, which was earlier vacant, and continued in possession without any lawful entitlement, while the plaintiffs remained in occupation of another portion and a further portion was let out to tenants.

6. In the above circumstances, the plaintiffs filed the suit in O.S.No.39 of 2000 on the file of learned Family Court at Secunderabad seeking: (i) a declaration that the alleged marriage, if any, between the defendant No.1 and late P. Venkata Swamy is illegal, null and void, and (ii) recovery of vacant and peaceful possession of the plaint schedule property consisting of two rooms with open space. The plaintiffs also sought damages for use and occupation at the rate of ₹800/- per month from the date of the suit till delivery of possession, along with costs.

7. In reply to the plaint averments, the defendants filed their written statement inter-alia denying all the allegations made by the plaintiffs and contending that the marriage of Defendant No.1 with late P. Venkata Swamy was solemnized on 03.03.1968 as per Hindu rites and caste customs in the presence of elders from both families. It is further stated that the defendant No.1 and late P. Venkata Swamy lived together as husband and wife at H.No. 12-8-264/1/C, Allugaddabavi, Secunderabad and were blessed with three children. According to the defendant No.1, late P. Venkata Swamy married her with the consent of his first wife, as she had no issues with the said marriage.

8. The defendant further contended that late P. Venkata Swamy had executed a Will during his lifetime, initially providing for equal distribution of his properties among his daughters and subsequently executing another Will directing that his youngest daughter, A. Nagasree, perform his last rites and that his self-acquired properties be divided into three equal shares among his three daughters, with pensionary benefits were to be shared by both wives after his death. On these grounds, the defendant denied the liability for damages and sought dismissal of the suit.

II. ISSUES FRAMED BY THE TRIAL COURT:

9. Basing on the above pleadings, the trial Court framed the following issues for trial:

               1. Whether the plaintiff No.1 is the legally wedded wife of late Venkat Swamy?

               2. Whether the plaintiff No.1 and 2 are entitle for damages for use and occupation of suit schedule property @ Rs.800/ p.m. from the date of Suit till the possession is delivered to them by the defendant?

               3. Whether the marriage between the defendant and late Venkat Swamy is illegal as alleged by the plaintiff.

               4. Whether the defendants are illegal occupants of two rooms portion of the suit schedule house.

               5. To what relief?

III. EVIDENCE:

10. During the course of trial, Plaintiff No.2 was examined as PW-2 and no documentary evidence was adduced on behalf of the plaintiffs.

11. On the other hand, on behalf of the defendants DWs 1 to 8 were examined and Exs. B1 to B15 were marked.

IV. FINDINGS OF THE TRIAL COURT:

12. The learned Trial Court, upon careful appreciation of oral and documentary evidence on record, held that the marriage between the plaintiff No.1 and late P. Venkat Swamy was admitted and subsisting till the date of his death. The learned Trial Court further held that even according to the version of the defendant No.1, her alleged marriage with late P. Venkat Swamy, was solemnized during the subsistence of the first marriage. Consequently, the said marriage was held to be void under Sections 5(1) and 11 of the Hindu Marriage Act, 1955 (for short ‘the Act’). However, by applying Section 16 of the Act, the learned Trial Court held that the children born through the defendant No.1 would be treated as legitimate and entitled to succeed to the property of late P. Venkat Swamy, while declaring the marriage of the defendant No.1 with late P. Venkat Swamy as null and void and granted relief accordingly.

13. Being aggrieved by the order dated 04.06.2002 passed by the Trial Court, the Appellants/Defendants have preferred the present Appeal.

V. SUBMISSIONS OF THE PARTIES:

A) Contentions of the Appellants/Defendants:

14. The learned counsel for the Appellants/Defendants contended that the Trial Court failed to frame proper and necessary issues. In particular, framing of Issue No.1 relating to the marital status of the plaintiff No.1 was wholly unnecessary, as the appellants never disputed that the plaintiff No.1 was the legally wedded wife of late P. Venkata Swamy. The consistent case of the appellants was that the Defendant No.1 married late P. Venkata Swamy with the consent of plaintiff No.1, owing to the absence of children for several years. It was further contended that Issue No.3 was vaguely framed, referring only to “the defendant” despite there being three defendants, thereby showing non-application of mind.

15. It is submitted that the Trial Court failed to frame a vital issue as to whether late P. Venkata Swamy died intestate, as claimed by the plaintiffs, or whether he executed a Will, as pleaded by the defendants. It was also contended that the suit itself was not maintainable before the Family Court, as the reliefs sought were beyond the jurisdiction conferred under the Family Courts Act. According to the appellants, the suit was, in substance, one for recovery of possession, camouflaged with a prayer for declaration of marital status after an inordinate delay of nearly 38 years.

16. The learned counsel for the Appellants/Defendants contended that the suit for declaration was barred by limitation and not maintainable on facts, in view of the oral and documentary evidence establishing that the Defendant No.1 was treated as the second wife of late P. Venkata Swamy from 1968 onwards by the family and society. The appellants contended that the Trial Court erred in relying solely on the testimony of PW.1, the daughter of late P. Venkata Swamy through the plaintiff No.1, who was not competent to depose on the marital status of the Defendant No.1.

17. It is also contended that in the absence of a specific prayer or specific pleadings, the Trial Court exceeded its jurisdiction in adjudicating the legitimacy of Defendants Nos.2 and 3. The finding that the suit schedule property was ancestral was assailed as being contrary to the plaint averments, which described the property as self- acquired by late P. Venkata Swamy, was not supported by any documents. The appellants further contended that the Trial Court erred in construing the suit as one for partition and in adopting an erroneous method of notional division, resulting in a perverse decree.

18. On the basis of the aforesaid submissions, the learned Counsel for the appellants, has prayed that, there being merit in the appeal, the same may be allowed.

B) Contentions of the Respondents/Plaintiffs:

19. Per contra, the learned counsel for the Respondents/Plaintiffs contended that the marriage between plaintiff No.1 and late P. Venkat Swamy was solemnized on 09.05.1965 as per Hindu rites and customs and continued to subsist until his death on 29.08.1999. It was submitted that during the subsistence of the said valid marriage, late P. Venkat Swamy could not have performed a second marriage and, therefore, any alleged marriage set up by defendant No.1 is void ab initio under Sections 5(1) and 11 of the Hindu Marriage Act, 1955. D.W.1 herself has admitted that the first marriage was subsisting at the time of the alleged second marriage.

20. The Respondents/Plaintiffs further contended that the defendant No.1 entered into possession of the suit schedule property only after the death of late P. Venkat Swamy, without any lawful right, title, or interest, and that the plaintiffs, being the lawful heirs, were entitled to seek recovery of possession. It was urged that the suit was maintainable as the declaration regarding marital status was necessary to decide the rights of parties over the property and to prevent false claims by the defendants.

21. It was also contended that the Trial Court rightly applied Sections 5, 11, and 16 of the Hindu Marriage Act and did not commit any error in appreciating the evidence on record or in granting relief. It was submitted that the defendants failed to prove the execution of any Will by late P. Venkat Swamy and, therefore, the finding that he died intestate was proper.

22. On the basis of the aforesaid submissions, the Learned Counsel for Respondents has prayed that, there being no merit in the present appeal, the same deserves to be dismissed.

VI. POINTS FOR DETERMINATION:

23. Having heard the learned counsel appearing for the respective parties and having carefully examined the material placed on record, the following point arises for determination in this Appeal:

               (i) Whether the impugned judgment and decree suffers from legal or factual infirmities warranting interference by this Court?

               (ii) Whether the appellants have made out a case for reception of additional evidence under order XLI Rule 27 CPC in C.M.P. No. 11472 of 2003?

VII. ANALYSIS AND FINDINGS:

24. We have carefully considered the rival submissions advanced by the learned counsel for the Appellants/Defendants and Respondents/Plaintiffs and also perused the entire record of the case, including the pleadings, oral evidence of PW1 and DWs 1 to 8 and the documentary evidence under Exs.B1 to B15.

(i) C.M.P. No. 11472 of 2003:

25. At the threshold, this Court finds that the Appellants/Defendants have filed C.M.P. No. 11472 of 2003 seeking permission of this Court to receive the Will dated 29.03.1998 executed by late P. Venkata Swamy and another document styled as a “Caution and Request Document” dated 09.02.1993, on record, as additional evidence.

26. The Defendants submitted that the said documents have a direct and substantial bearing on the issues relating to the nature of succession, entitlement to the suit schedule property, and sharing of pensionary benefits, which form the very foundation of the relief granted by the Trial Court.

27. The Defendants submitted that the aforesaid documents could not be produced before the Family Court as they were not in their custody during the pendency of the suit. It is stated that late P. Venkata Swamy had entrusted the Will and connected documents to his relative, who passed away in or about March 2002. Only thereafter, in June 2002, the documents were traced and handed over to Defendant No.1 by her cousin, who was unaware of their existence till then. Thus, the Defendants came into possession of the documents only after disposal of the suit, and therefore, there was no deliberate or negligent omission in producing them at the trial stage.

28. This Court has carefully considered the pleadings in the Civil Miscellaneous Petition, the affidavit filed in support thereof, and the objections raised by the respondents. The additional documents sought to be received, namely the Will deed dated 29.03.1998 and the Caution and Request Document dated 09.02.1993, are documents of considerable evidentiary value, as they particularly deal with the succession to the suit schedule property and the distribution of pensionary benefits of late P. Venkata Swamy.

29. The submission and reasons stated by the Defendants for non- production of the said documents before the Trial Court are found to be plausible and convincing. The Defendants have consistently stated that the documents were not in their custody or knowledge during the pendency of the suit and were traced only after the disposal of the suit, upon the demise of the person with whom the documents were entrusted by the testator himself. There is nothing on record to suggest any willful suppression, negligence, or lack of due diligence on the part of the appellants in not producing the alleged documentary evidence before the Trial Court.

30. This Court is also of the considered view that refusal to receive the said documents would result in serious prejudice to the Defendants, as the Trial Court proceeded on the footing that late P. Venkata Swamy died intestate, a finding which forms the very basis for the impugned decree. The Will deed will have a direct impact and would materially alter the rights of the parties. Therefore, the documents sought to be produced are not only relevant but also necessary for a just and effective adjudication of the appeal.

31. In view of the above, this Court holds that the requirements for reception of additional evidence stand satisfied. Accordingly, C.M.P. No. 11472 of 2003 is allowed, and the Will deed dated 29.03.1998 and the ‘Caution and Request Document’ dated 09.02.1993 are received on record as additional evidence, subject to proof in accordance with law.

(ii) Validity of alleged second marriage:

32. In the present case, the existence and validity of the marriage between Plaintiff No.1 and late P. Venkata Swamy are not in dispute. The said marriage was solemnized on 09.05.1965 as per Hindu rites and customs and continued to subsist until the death of late P. Venkata Swamy on 29.08.1999. This fact stands admitted by the defendants themselves and is further corroborated by documentary evidence, including the nomination made by late P. Venkata Swamy in favour of Plaintiff No.1 for receipt of pensionary benefits, pursuant to which she continues to receive family pension. There is no pleading or evidence on record to show that the marriage between Plaintiff No.1 and late P. Venkata Swamy was dissolved in accordance with law.

33. The case of Defendant No.1 is that she married late P. Venkata Swamy on 03.03.1968 with the consent of Plaintiff No.1, as Plaintiff No.1 had no surviving issue at that time. Hence, it is clear that the alleged second marriage was performed during the subsistence of a valid first marriage. The plea of consent of the first wife cannot, by itself, confer legality upon a marriage that is otherwise prohibited by statute.

34. Section 5(i) of the Hindu Marriage Act, 1955 (for short ‘the Act’) mandates that a Hindu marriage can be solemnized only if neither party has a living spouse at the time of marriage. This condition goes to the very root of the validity of the marriage. Section 11 of the Act further provides that any marriage solemnized in contravention of the condition prescribed under Section 5(i) of the Act shall be null and void. The statute thus leaves no scope for recognizing or validating a second marriage contracted during the lifetime of a legally wedded spouse.

35. In the context of the present case, the admitted subsistence of the first marriage squarely attracts the bar under Sections 5(i) and 11 of the Act. Long cohabitation, social recognition, or the fact that the parties lived together for several years cannot cure the inherent illegality of a marriage that is void ab initio under the statute. Equally, the alleged consent of Plaintiff No.1, even if assumed, has no legal sanctity in the face of the express statutory prohibition against bigamy.

36. Therefore, applying the settled legal position to the facts on record, this Court holds that the alleged marriage between Defendant No.1 and late P. Venkata Swamy is void in the eyes of law and does not confer upon Defendant No.1 the status of a legally wedded wife. The Trial Court has correctly appreciated both the material facts and the statutory provisions in declaring the said marriage as illegal, and the finding recorded on this aspect calls for no interference.

(iii) Right of the Defendants No.2 and 3 in the Plaint Schedule Property:

37. The plaint schedule property is a house bearing Plot No.10 at Mettuguda, Secunderabad. In the plaint itself, it is specifically pleaded that late P. Venkata Swamy purchased the said house during his lifetime, thereby describing it as his self-acquired property. There is no pleading anywhere in the plaint that the property was ancestral in nature. Equally, no documentary evidence was adduced by the plaintiffs to establish that the suit schedule house was ancestral property or part of any joint family.

38. Despite the specific pleadings, the Trial Court proceeded to hold that the plaint schedule property was ancestral and embarked upon an exercise of notional partition. Such a finding is wholly inconsistent with the pleadings and unsupported by evidence. It is a settled principle that the nature of property must be determined strictly on the basis of pleadings and proof, and a court cannot assume the character of property contrary to the admitted case of the parties. The Trial Court, therefore, committed an error in treating the self-acquired property of late P. Venkata Swamy as ancestral. 39. Further, the Trial Court failed to consider the specific plea of the defendants regarding the execution of a Will by late P. Venkata Swamy. The defendants consistently asserted that late P. Venkata Swamy executed a Will bequeathing the house property in favour of his children and making provision for sharing pensionary benefits between both the wives. The Trial Court, without framing any issue on testamentary succession and without properly examining the evidence, proceeded on the erroneous assumption that late P. Venkata Swamy died intestate. Such an approach has vitiated the findings relating to succession and shares.

40. The Will dated 29.03.1998, executed by late P. Venkata Swamy during his lifetime, unequivocally provides that the house property shall devolve equally upon his three daughters, namely the plaintiff No.2 and Defendants Nos. 2 and 3, each being entitled to one- third share. The said Will also separately provides for sharing of pensionary benefits between the two wives, thereby clearly demarcating succession to immovable property from service benefits. Once a valid testamentary disposition governs the parties, the question of applying notional partition does not arise.

41. The entitlement of Defendants Nos. 2 and 3 each to one-third share, flows directly from the Will and is independent of the marital status of Defendant No.1. Even assuming that the marriage of Defendant No.1 was void, the legitimacy of Defendants Nos. 2 and 3 stands protected under Section 16 of the Act, and their right to inherit the property of their father cannot be denied. The Trial Court, therefore, erred in ignoring the Will and in resorting to a notional division of shares contrary to the express intention of the testator, rendering the impugned findings on succession unsustainable.

42. In view of the above, this Court holds that the findings of the Trial Court relating to the nature of the plaint schedule property, intestate succession, notional partition, and allocation of shares are legally unsustainable and the plaintiff No.2 and Defendants Nos. 2 and 3, are entitled to one-third share in the Plaint Schedule Property by virtue of the Will Deed executed by father of plaintiff No.2 and defendant Nos.2 and 3. Accordingly, the findings of the Trial Court on this issue are set aside, and the appeal deserves to be allowed to that extent.

(iv) Findings beyond Pleadings and Jurisdiction:

43. This Court finds that the Trial Court has erred in stepping beyond the pleadings of the parties and the reliefs sought in the plaint. The underlying suit was filed primarily for declaration of marital status and for recovery of possession of the suit schedule property. There was no specific prayer nor any pleading seeking partition or determination of shares in the suit property. In spite of the same, the Trial Court had adjudicated upon the notional partition, which was wholly unwarranted and impermissible in law.

44. It is a settled principle that a Court cannot grant relief or record findings on issues which were neither pleaded nor prayed for by the parties. By determining questions relating to ancestral nature of the property, notional partition, and apportionment of shares, the trial Court exceeded its jurisdiction and effectively converted a suit for declaration and possession into one for partition, without affording the parties an opportunity to lead evidence on such aspects. Such an approach has resulted in prejudice to the defendants and vitiates the impugned judgment.

45. The Honourable Apex Court in Akella Lalitha v. Konda Hanumantha Rao and Another (2022 SCC Online SC 928) observed as follows:

               “16. Coming to address the second issue, while this Court is not apathetic to the predicament of the Respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of first husband/son of respondents. It is settled law that relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice.

               17. In the case of Trojan & Co. Ltd. v. Rm.N.N. Nagappa Chettiar, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings.

               The Court held as under: -

               "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

               18. In the case of Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi held:

               "Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

46. Applying the above principle to the present case, this Court holds that the findings and reliefs granted by the Trial Court beyond the pleadings and prayers are legally unsustainable and liable to be set aside.

47. Further, the Trial Court failed to appreciate the limits of its jurisdiction. It is well settled that reliefs not specifically prayed for cannot be granted merely on the basis of evidence or incidental observations, particularly when such reliefs involve substantive civil rights. The Trial Court, by granting findings on notional partition clearly acted contrary to the mandate of Order VII Rule 7 CPC, thereby travelling beyond both the pleadings and the relief clause of the plaint.

48. The consequence of such an error is not merely procedural but goes to the root of jurisdiction, as the defendants were deprived of an opportunity to contest a relief that was never sought. The impugned findings, therefore, suffer from legal infirmity and cannot be sustained in law. Accordingly, this Court holds that the Trial Court erred in granting reliefs not specifically claimed, in violation of Order VII Rule 7 CPC, and the findings rendered beyond the scope of the pleadings are liable to be set aside.

VIII. CONCLUSION:

49. In view of the foregoing discussion, this Court is of the considered opinion that there is no infirmity in the findings of the Trial Court insofar as the validity of the alleged marriage is concerned. The marriage claimed by Defendant No.1 with late Venkata Swamy is held to be void in law, as it was contracted during the subsistence of a prior valid marriage. Consequently, the said marriage does not confer any legal or matrimonial status upon Defendant No.1 under law and the said finding is hereby affirmed. Likewise, the conclusion of the Trial Court rejecting the claim for damages/mesne profits is also found to be well founded, as the plaintiffs failed to establish exclusive possession or unlawful occupation by the defendants. The said finding does not call for any interference and is accordingly upheld.

50. However, with regard to the rights in the plaint schedule house property, this Court finds it necessary to modify the judgment of the Trial Court. While the Trial Court correctly recognized the entitlement of Defendants Nos.2 and 3 to residence and maintenance, it erred in not giving full effect to the testamentary disposition governing the property. In view of the Will Deed dated 29.03.1998, which specifically provides for the devolution of the house property upon the children, this Court holds that Defendants Nos.2 and 3 are entitled each to a one-third share in the Plaint Schedule property, as bequeathed under the Will Deed. To the said extent, the judgment and decree of the Trial Court stands modified, while the remaining findings are confirmed.

IX. RESULT:

51. For the reasons recorded above, C.M.P. No. 11472 of 2003 is allowed. Consequently, the Appeal Suit is partly allowed. The Judgment and Decree dated 04.06.2002 in O.S. No. 39 of 2000 on the file of the Family Court at Secunderabad is hereby set aside only insofar as the determination of rights in the plaint schedule property is concerned. The finding of the learned Trial Court holding that the alleged marriage of Defendant No.1 with late P. Venkata Swamy is invalid is affirmed. The rejection of the claim for damages/mesne profits is also confirmed. However, the Judgment and Decree is modified to the extent that Defendants Nos.2 and 3 are each entitled to a one-third share in the plaint schedule property, in terms of the Will dated 29.03.1998. There shall be no order as to costs.

As a sequel, pending miscellaneous applications, if any, in this Appeal shall also stand closed.