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21. Once we come to the conclusion that defendant no. 3 has a settled legal right to succeed to the properties of her erstwhile husband and her right is to the exclusion of plaintiffs and defendant no. 2 as they are class II heirs, there exists no right in favour of plaintiffs and defendant no. 2 to succeed to the properties of Braham Prakash. When there exists no right in favour of the plaintiffs and defendant no. 2 and the right exists only in favour of defendant no. 3 can the plaintiffs seek any relief by way of declaration which would amount to conferring any right which in law does not exist in favour of plaintiff. The answer should be in negative. No one can seek declaration of a non-existing right. Law does not permit such a declaration.

11. This finding does not in any manner call for any interference. Birmati, even as per the case of the plaintiff, was the legally wedded wife of Braham Prakash. Contention of the plaintiff is that after Braham Prakash went missing, Birmati got married to Samay Singh in 1980. This was refuted. The contention of the defendant was that parties had got married only in 1985. Be that as it may, even assuming that the case set up by the plaintiff that Birmati had married Samay Singh in 1980 is correct, this marriage of Birmati with Samay Singh would be a void marriage as the presumption of death of Braham Prakash could have arisen only after 7 years of his having got missing; he had been got missing since 1976. Even assuming that Birmati had married Samay Singh in 1980, there being no averment that this marriage was as per custom, one spouse marrying another person in the lifetime of a living spouse is illegal; such a marriage would be a void marriage. It cannot recognized in the eye of law. Either way, Birmati, was a class I heir. The three plaintiffs and the defendant no. 2 being brothers are class II heirs. There is no dispute to this position. As per the case of the plaintiff, the succession to the estate of Braham Prakash would open in 1983 i.e. 7 years from the date of his having gone missing which was in 1976. In view of the fact that the plaintiff had given up prayer no.(A) and there being no declaration to the effect that Braham Prakash was a dead man in the year 1983; he was only missing; even on the notional date of the opening of his succession in 1983, his estate necessarily had to devolve upon his deceased widow i.e. Birmati. The impugned judgment on no score suffers from any perversity.