Delhi District Court
Ms. Shyla Shankar vs Ms. Juni @ Panmaya Tamang on 29 September, 2018
IN THE COURT OF MS SHRIYA AGRAWAL, CIVIL JUDGE, SOUTH-
EAST DISTRICT, SAKET COURTS, NEW DELHI
CS No. 50613/16
Ms. Shyla Shankar
R/o J-1930, C.R. Park,
New Delhi-110048 ....Plaintiff
Vs.
1. Ms. Juni @ Panmaya Tamang
R/o J-1930, C.R. Park,
New Delhi
2. Mr. Zuber Hashmi
Having Office at Chamber No.615,
Lawyers Chamber Block,
Saket Courts Complex,
Saket, New Delhi ....Defendants
Date of institution of Suit : 01.04.2014
Date on which Judgment was reserved : 12.09.2018
Date of pronouncement of the Judgment : 29.09.2018
JUDGMENT
1. The present suit was instituted by the Plaintiff against the Defendants viz. Ms. Juni @ PanmayaTamang and Mr. Zuber Hashmi for the reliefs of declaration, declaring the marriage dated 22.3.2013 solemnized between Mr. Kunal Bose and Defendant no.1 at Arya samaj Mandir, Kailash Colony, New Delhi, as non-est and null and void and for declaration of the agreements/ documents executed between Mr. Kunal Bose and the Defendants as null and void ab initio, the same being based on fraud and misrepresentation by the Defendants and for the relief of mandatory injunction and CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 1 / 14 permanent injunction, to restrain Defendant no.1 from representing herself as the wife of Late Mr. Kunal Bose and from claiming any rights in the estate of Late Mr. Kunal Bose upon his demise as his widow including the property J-1930, CR Park, New Delhi and to restrain the Defendants, their agrents etc, from selling, creating third party rights in the estate left behind by Late Mr. Kunal Bose, after his demise, including in the property J-1930 CR Parl, New Delhi.
CASE OF THE PLAINTIFF
2. The Plaintiff, is the mother and the only legal heir of Sh. Kunal Bose (who had died on 14.02.2014) and has filed the present suit in the said capacity. The Plaintiff has stated that initially she got married to one Mr. Abhijit Bose, with their marriage having been solemnized according to Hindu rites and rituals. After their marriage, the plaintiff alongwith Sh. Abhijit Bose shifted in the property bearing no.J-1930, C.R.Park, New Delhi. Subsequently, from the said wedlock, Mr. Kunal Bose was born on 22.12.1976. It is alleged that owing to some termperamental differences, plaintiff and Sh. Abhijit Bose, they parted ways by obtaining divorce by mutual consent. Thereafter, in the year 2001, the plaintiff got married to one Mr. Ramanathan Sudarson. On 19.01.2011, Mr. Abhijit Bose died, leaving behind Mr. Kunal Bose as his only legal heir and by virtue of succession, Mr. Kunal Bose stepped into his shoes and became the owner to the extent of 1/3rd undivided share in the property bearing no.J-1930, C.R.Park, New Delhi. It is alleged that the proceedings seeking formal partition of the said property are pending adjudication before the Hon'ble High Court of Delhi, wherein the Hon'ble Court has passed status quo orders in respect of the said CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 2 / 14 property. Plaintiff claims that since Mr.Kunal Bose was an epileptic patient and Mr. Abhijit Bose being an old, infirm and suffering from paralysis, one Ms. Anita Negi (against whom the Plaintiff has instituted another suit for declaration under Section 34 Specific Relief Act for the relief of declaration of the marriage of her son Mr. Kunal Bose and Ms. Anita Bose @ Negi as null and void) having her nefarious designs to usurp the said property, conspired and lured Mr. Kunal Bose to marry her. Accordingly, the marriage between Ms. Anita Bose @ Negi and Kunal Bose was solemnized on 19.06.2002 at the mandir of C.R.Park, New Delhi, as per Hindu rites and rituals. At the relevant time, Ms Bose had represented to Mr. Kunal Bose that she is unmarried. Subsequently, in the year 2007, it is averred that Mr. Kunal Bose gained knowledge about the fraud played upon him, and he filed a petition bearing HMA 197/2007 titled as 'Kunal Bose v. Anita Bose' under Section 11 read with Section 5(i) of the Hindu Marriage Act, for declaration of the said marriage as a nullity.
3. The Plaintiff has claimed that since Mr. Kunal Bose was an epileptic patient and undergoing lot of trauma at the hands of his wife Ms. Anita Negi, he got lured by the charm of the defendant no.1 and they started living together. It is alleged that defendant no.1 then got defendant no.2, to meet with Kunal Bose, representing him as a very good lawyer and that he shall take care of all his cases. Accordingly, Kunal Bose appointed him as his lawyer and they started pursuing the proceedings pending inter-se Kunal Bose and Ms. Anita Negi. The defendants fraudulently and with ulterior motive, represented to Kunal Bose that some people are trying to take possession of his property. Therefore, he should induct defendant CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 3 / 14 no.2 in the property and that he shall ensure that nobody grabs his property. Accordingly, a document dated 07.03.2013 was executed between them and defendant no.2 stood inducted as a licensee in the said property. The Defendants are stated to have lured Mr. Kunal Bose to enter into marriage with Defendant no.1, which marriage got solemnized on 22.03.2013, at the Arya Samaj Mandir, Kailash Colony, New Delhi.
4. It is also averred that that defendant no.2, taking advantage of Kunal Bose being an epileptic patient, played fraud upon him and got the certain documents signed from him. Later on, when Kunal Bose realized the fraud played upon him, he wrote a letter, detailing, the endeavours and the malafide with which the Defendants wanted to illegally grab his property.It is further claimed that Mr. Kunal Bose further categorically stated that the said documents were executed by playing fraud upon him and that as he had disowned the execution of the said documents, there was threat to his life at the hands of the Defendants.
5. Thereafter on 14.02.2014, Kunal Bose was found dead in mysterious circumstances and at the relevant time defendant no.1 was found to be at home. Accordingly, the police was called and the body of Kunal Bose was taken into custody and sent for post- mortem. Since, the plaintiff was also not in town, therefore, upon receiving the information, she came to Delhi. During the investigation, all the abovesaid documents were forwarded to the police officials, however, the police officials of the concerned police station did not take any action.The autopsy report was delivered on CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 4 / 14 28.02.2014. A perusal of the autopsy report clearly states that Kunal Bose was murdered by strangulation and probably poisoning. The Plaintiff has stated that the role of the Defendants in the incident could not be ruled out.
6. It was also learnt that the defendant no.1 prior to marriage with Kunal Bose was already married to one Mr. Ganesh Tamang of Nepalese origin. Further, the defendant no.1 had created a forged identity in the name of Juni Tamang and that her real name is Panmaya Tamang. Thus, the defendant no.1 is also guilty of committing bigamy and also creating a forged and fabricated indentity. The defendant no.1 and 2 from the very inception have been in active collusion and connivance and that they have together conspired against Kunal Bose, to usurp his property. the said marriage between the defendant no.1 and Kunal Bose is at the outset non-est, null and void ab-initio, on the following amongst other grounds:
"a. Kunal Bose was already married to Ms. Anita Negi, as the petition filed by Kunal Bose for declaring the marriage dated 19.06.2002 between them, as nullity was pending adjudication and the defendant no.1 being aware of the same, could not have entered into marriage with Kunal Bose, which otherwise amounts to bigamy.
b. The defendant no.1 was also already married to one Mr. Purva @ Ganesh Tamang, prior to getting married to Kunal Bose.
CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 5 / 14 c. Further the defendant no.1 had played fraud by concealing the fact that from the said wedlock with Mr. Purva @ Ganesh Tamang had given birth to a child namely Master Dinesh Tamang.
d. Further, the defendant no.1 vide her affidivait of marriage has stated of being unmarried at the time marriage with Kunal Bose, whereas she was already married to said Mr. Purva @ Ganesh Tamang."
7. After the demise of Mr. Kunal Bose, plaintiff being his mother and the class I legal heir, by virtue of the law of succession claims to have stepped into his shoes. Due to the overt acts of the defendant no.1 by representing herself as the widow and legal heir of Kunal Bose and making attempts in collusion and connivance with defendant no.2 to illegally usurp the estate left behind by late Kunal Bose, to the prejudice of the Plaintiff's rights, the present suit has been filed by the plaintiff seeking the below mentioned reliefs against the defendants. The plaintiff also claims to have recently gained the knowledge that the defendants are in the process of creating third party interest the said property. There exists a prima facie case in favour of the plaintiff, in as much as from the record it is evident that the marriage between the defendant no.1 and late Kunal Bose in null and void. Balance of convenience is also in favour of the plaintiff, in as much as she is admittedly class I legal heir of late Kunal Bose and by virtue of laws of succession is entitled CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 6 / 14 to inherit his estate to the exclusion of the defendant no.1. Irreparable loss would be caused in case the reliefs prayed for are not granted in favour of the plaintiff. The Plaintiff seeks to have the marriage dated 22.3.2013 between the Plaintiff and Defendant no.1 declared as null and void.
WRITTEN STATEMENT
8. Per contra, the Defendant no.1 in her Written Statement has stated that the plaintiff has suppressed and concealed her permanent and present address. She has been neither a resident of nor in actual and physical possession of the property bearing no.J- 1930, C R Park, New Delhi. Further, the plaintiff has no locus standi to file the present suit as according to Section 11 of the Hindu Marriage Act, 1955, a marriage can be declared as null and void only on a petition presented by either party thereto, against the other party, if it contravenes anyone of the conditions of Section 5 (i), (iv) and (v) of the Act. The Plaintiff herself has parted ways with the father of Mr. Kunal Bose, Mr. Abhijit Bose, by obtaining decree of divorce by mutual consent, and thereafter in the year 2001, she got re-married with Mr. Ramanathan Sudarson and presently is the legally wedded wife of one Mr. Ramanathan Sudarson. Thus, she ceases to be the member of the family of Late Abhijit Bose. She therefore, being a stranger, has no right, title and authority in their estate. The suit of the plaintiff is also bad for non-joinder and mis- joinder of the necessary parties. The defendant no.1 prior to filing of the present suit has entered into an agreement to sell dated 20.03.2014 with Hasan Agha S/o Late Aghaz Haider, R/o E-3, 2 nd floor, Okhla Vihar, Jamia Nagar, New Delhi-110025 for the need and CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 7 / 14 welfare of the family and also executed General Power of Attorney and Will dated 20.03.2014 in favour of Hasan Agha S/o Late Aghaz Haider, R/o E-3, 2nd Floor, Okhla Vihar, Jamia Nagar, New Delhi- 110025 and also issued a receipt of receiving Rs.25,00,000/-. The defendant no.1 has also entered into an MOU with Hasan Agha vide MOU dated 22.03.2014 with respect to 1/3 undivided share (as per Will executed by late Devi Rani Bose). The plaintiff has filed the present false and frivolous suit only to grab the property of late Kunal Bose. It has been denied that the defendant no.2 was engaged as lawyer on the instance of defendant no.1. The marriage of the defendant no.1 with Kunal Bose was solemnized on 06.04.2013 and not on the date as alleged. She denies that she, prior to marriage with Kunal Bose, was already married to one Mr. Ganesh Tamang@ Mr. Purva of Nepalese origin. Defendant no.1 had given birth to a girl child from the wedlock of Kunal Bose in Safdarjung Hospital on 06.12.2013.
9. The proceedings were set ex-parte against Defendant no.2 vide order dated 26.5.2014. An application was moved under Order 1 Rule 10 CPC on behalf of Mr. Hasan Aga, which stood dismissed vide order dated 7.7.2015. By the said application, Mr. Agha had claimed to have purchased the property J-1930 from the Defendant no.1. by registered GPA, agreement to sell , will all dated 20.3.2014. Observing that the Agreement to sell was an unregistered document and that Mr. Agha was neither a necessary nor a proper party to the lis, the Ld. Predecessor dismissed the application for impleadment. Vide order dated 27.10.2014, the Ld. Predecessor observing that the procedure and the jurisdiction for relief of nullity of marriage is CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 8 / 14 provided under the Hindu Marriage Act, held that this Court could not grant the reliefs in prayer clauses (i) and (iii) viz. for declaration of marriage and the ancillary reliefs of injunction, though it does have the jurisidiction to grant relief under prayer clause (ii). Vide order dated 27.10.2014 in RCA no. 27/14, the Ld. AJD (first appellate court) set aside the order dated 27.10.2014. Vide order dated 26.9.2015, the proceedings were set ex parte against Defendant no.1 as well. Ms. Anita Bose (Defendant in the other suit) too had filed an application under Order 1 Rule 10 CPC, which also stood dismissed vide order dated 19.2.2016.
10. Vide order dated 20.1.2016 the Ld. Predecessor, observing the factum of the pendency of the other suit as above mentioned, filed by the Plaintiff against Ms. Anita Bose, and the two suits having issues requiring common discussion and common evidence, had directed that the proceedings of both the cases would be conducted simultaneously.
EX PARTE PLAINTIFF EVIDENCE
11. The Plaintiff deposed as PW1 on the strength of her affidavit Ex PW1/A, relying inter-alia, upon, copy of Plaintiff's adhar card (Ex PW1/1), copy of marriage certficate dated 21.8.2006 (Ex PW1/2), petition for nullity under HMA filed by Kunal Bose against Ms. Anita Bose (Ex PW1/3), copy of undertaking dated 7.3.2013 (EX PW1/4), copy of affidavit dated 22.3.2013 executed by Defendant no.1 (EX PW1/5), copy of letter issued by Mr. Kunal Bose to Defendant no.2 (Ex PW1/6), copy of post mortem report dated 28.2.2014 (Ex PW1/7), complaint dated 29.7.2011 (Ex PW1/8), complaint dated CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 9 / 14 26.8.2011 (Ex PW1/9) and complaint dated 28.3.2014 (Ex PW1/10). Two witnesses, police officials were examined with respect to the complaints relied upon by the Plaintiff. The witness PW2, constable from PS Sarojini Nagar, Delhi , appeared in response to summons. He however could not depose about the complaint Ex PW1/9 , since the concerned record had been handed over for destruction.
12. Heard ex-parte final arguments. Perused the Record.
13. The present suit has been filed by the Plaintiff, mother of Late Mr. Kunal Bose against the Defendant for the reliefs above mentioned. She has claimed in the present suit that the marriage of her son Mr. Kunal Bose with the Defendant no1, dated 22.3.2013 was void on the ground that her son was already married to one Ms. Anita Bose ( Defendant in the other suit bearing CS No. 51610/16 titled 'Shyla Shankar v. Anita' ), against whom he had filed a petition under the Hindu Marriage Act for annulment under Section 11 read with Section 5 (i) and also that during the said emotionally disturbed phase of her son and also taking advantage of his ill-health, the Defendant no.1 concealing that she herself was already married to one Mr. Ganesh Tamang of Nepalese origin, at the relevant time, entered into matrimony with the son of the Plaintiff. Defendant no.1, is also stated to have concealed her identity, forging it to be Ms. Juni Tamang, though her real name has been stated to be Ms. Panmaya Tamang. It is the Plaintiff's case that the Defendant no.1 along with Defendant no.2, an advocate by profession, had misled the Mr. Kunal Bose into letting the Defendant no.2 get inducted as a licencee in his residence and also into taking his 'assistance' in CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 10 / 14 resolving the litigations he was embroiled in. Under the garb of these efforts, the Defendants eyeing Kunal Bose's property at J-
1930, had made him execute some documents, by misrepresentation and fraud, qua which the Plaintiff seeks a declaration as well.
14. In the Written Statement filed by the Defendant no.1, she has questioned the locus of the Plaintiff to institute the present suit, as she has never been in possession of the property at J-1930, CR Park and that she cannot seek a declaration of the marriage of the Defendant no.1 with the Plaintiff's son as void, for which it is only a party to the marriage who can file a petition under Section 11 of the Hindu Marriage Act. Furthermore, the Plaintiff admittedly, had divorced the father of Late Mr. Kunal Bose and is now a stranger to the family. As she has already remarried with Mr. Ramanathan Sudharshan, she cannot stake any claim in respect of the property of the family of Mr. Abhijit Bose, father of Mr. Kunal Bose, as a class 1 legal heir. The issue of non-joinder and mis-joinder has also been highlighted in respect of the documents viz. agreement to sell, GPA and will dated 20.3.2014 and the MOU dated 22.3.2014 executed by Defendant no.1 in favour of one Mr. Hasan Agha. These preliminary objections with respect to jurisdiction were already dealt with by the First Appellate Court in order dated 5.3.2015 in the RCA No. 27/14. The issue as to the Plaintiff having no locus to file the present suit also does not arise, as she has instituted the same in the capacity of being the biological mother of Late Mr. Kunal Bose and as therefore as his class 1 legal heir. The application seeking impleadment moved by the said Mr. Hasan Agha has already been CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 11 / 14 dismissed.
15. The perusal of the Written Statement, reveals that the Defendant no.1, with respect to corresponding averments in the Plaint on the subsistence of her prior marriage at the time she entered matrimony with the son of Plaintiff, has throughout been essentially in evasive denial thereof. She has nowhere countered or explained the allegation of the Plaintiff, with respect to usage of the other name in addition to the name Juni Tamang. She has also baldly denied that she was already married to another person by the name of Mr. Ganesh Tamang, when she married Mr. Kunal Bose. The Plaintiff, on the other hand, in support of her case has relied upon, inter-alia, the copy of an understanding reduced into writing with respect to protection from the land grabbers and Defendant no.2 purportedly living with the son of the Plaintiff together (Ex PW1/4), affidavit dated 22.3.2013 executed by Defendant no.1 (EX PW1/5) and police complaint dated 26.8.2011 filed by Defendant no.1 against the 'torture and harrasment by her husband Mr. Purva @ Ganesh Tamang'. Ex PW1/9. It is a settled principle of law as was held in Ajay Chandrakar & ors. v. Ushabai [ 1999 SCC OnLine MP 734] that in a suit for declaration of the second marriage as void, direct evidence may not be expected to be led as the evidence in such cases, is mostly circumstancial. The perusal of the complaint dated 26.8.2011 reveals that the same had been lodged by Defendant no.1 against her husband Mr. Purva @ Ganesh Tamang by Defendant no.1. This corroborates the claim of the Plaintiff, that the Defendant no.1 was already married. The case of the Plaintiff has gone unrebutted and uncontroverted, as the Defendant no.1 , CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 12 / 14 despite opportunity having been granted, has failed to lead any evidence to show that no such prior marriage subsisted or that the same, if at all subsisted, stood anulled.
16. It is pertinent to mention here that the claim of the Plaintiff, as to the subsistence of Late Mr. Kunal Bose's marriage with Ms. Anita Bose at the time of entering into the marriage with Defendant no.1, leading to the marriage with the Defendant becoming a bigamous marriage, does not hold ground, as vide judgment of the even date in the CS No.51610/16 titled 'Shyla Shankar v. Anita', the said marriage with Ms. Anita Bose has been declared to be null and void by this Court. As far as the marriage with Defendant no.1 herein is concerned, the same is void and is so being hereby declared essentially because the case of the Plaintiff that the Defendant no.1 was already married at the time of entering into matrimony with Mr. Kunal Bose, has gone unrebutted. The marriage inter-se the Plaintiff's son Mr. Kunal Bose and Defendant no.1 was in the teeth of Section 5 (i) of the Hindu Marriage Act 1955, as the former had a spouse living at the time she entered into matrimony with the Plaintiff's son and therefore is non-est.
17. As far as the other prayer no. (ii) is concerned, the documents and the agreements and understanding, if any, executed between Mr. Kunal Bose and the Defendants are concerned, the said prayer is vague and therefore cannot be granted. Even if there have been disclosure by Defendant no.1 in the proceedings as to the execution of certain documents in respect of the transfer of the property at J- 1930 or any share thereof, it was incumbent upon the plaintiff to CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 13 / 14 appropriately amend the suit and incorporate a specific prayer in the Plaint vis-a-vis those documents. Even the case of the Plaintiff against Defendant no.2 is vague, since creation of licence, if any in favour of Defendant no.2, was a decision personal to Mr. Kunal Bose. Nothing has been shown that the same was also created under the fraudulent influence of the Defendants or that Mr. Kunal Bose himself reposed trust in them, though the same turned out to be misplaced. Accordingly, no relief is being granted against the said Defendant no.2.
18. Suit accordingly stands partly decreed. The marriage solemnised on 22.3.2013 between Mr. Kunal Bose, son of the Plaintiff and Defendant no.1 is hereby declared as null and void. The Defendant no.1 is also restrained from representing herself as the wife of Late Mr. Kunal Bose and from claiming any rights in the estate left behind by Mr. Bose consequent upon his demise, including in property bearing no. J-1930 CR Park, New Delhi and from selling alienating or creating third party rights therein.
19. Decree sheet be prepared.
20. File be consigned to Record Room.
Digitally signed by SHRIYA SHRIYA AGRAWAL
AGRAWAL Date: 2018.10.01
23:41:45 +0530
Pronounced in the open Court (Shriya Agrawal)
on this 29.09.2018 Civil Judge, South East,
Saket Court, New Delhi.
29.09.18
CS No.50613/16 Ms. Shyla Shankar Vs. Ms. Juni @ Panmaya Tamang 14 / 14