Gauhati High Court
Bulu Das And Anr. vs Moni Das And Ors. on 24 September, 2003
Equivalent citations: (2005)2GLR388
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This is an appeal under Section 384 of the Indian Succession Act against the Order, dated 31.8.2002, passed by the learned District Judge, Kamrup, Guwahati, in Succession Case No. 327/2001, granting succession certificate.
2. In a nut-shell, the facts leading to the present appeal may be stated as follows :
(i) An application under Section 372 of the Indian Succession Act was made by the respondent No. 1, Smti Moni Das, praying for issuance of succession certificate in respect of debts and securities left by her husband Basanta Kr. Das, who was an employee in the Irrigation Department, Government of Assam, and who had died on 8.6.2000, the case of the respondent No. 1 being that the deceased Basanta Kumar Das had married the respondent No. 1 on 12.2.2002 and out of their wed-lock, two female issues, namely, respondent Nos. 2 and 3 were borne, both of whom are still minors and living under the care and custody of respondent No. 1. The prayer for issuance of succession certificate, so made, was resisted by the appellant No. 1, the case of the appellant No. 1 being, in brief, that the deceased Basanta Kr. Das had married the appellant No. 1 way back on 17.12.1978 and out of their wed-lock, a female issue, namely, appellant No. 2 was born, the said deceased had not married the respondent No. 1 nor had the said deceased left behind two minor female children through his alleged marriage with respondent No. 1.
(ii) Both the parties adduced their evidence by examining witnesses. Upon conclusion of the hearing, the learned District Judge passed the impugned order, dated 31.8.2002, afore mentioned declaring to the effect, inter alia, that all the three female children of the said deceased would be entitled to one share each in the properties left behind by the said deceased, but so far as the remaining one share is concerned, the same shall be divided equally between deceased Basant Kr. Das's two widows, namely, appellant No. 1 and respondent No. 1. Feeling aggrieved by the order, so passed, the present appellants have, now, preferred this appeal.
3. I have perused the materials on record including the impugned order. I have heard Mr. B. Singha, learned counsel appearing for the appellants, and Mr. B. Ramchiary, learned counsel appearing on behalf of the respondents.
4. While considering the merit of the impugned order, it needs to be noted that the fact that the said deceased had married the appellant No. 1 and that the appellant No. 2 is their legitimate minor daughter was not in dispute in the learned Court below. What was in dispute was that the said deceased had also married the respondent No. 1 and/ or that the respondent Nos. 2 and 3 were born out of cohabitation between the said deceased and the respondent No. 1. However, notwithstanding the fact that the appellant No. 1 had denied that the marriage had taken place between the said deceased and the respondent No. 1, the learned District Judge found and held that the said deceased had, indeed, married the respondent No. 1 too. This finding was arrived at by the learned District Judge on the basis of the admissions made by the appellant No. 1 herself and her witnesses. The finding so arrived at by the learned District Judge that the respondent No. 1 too had married the said deceased is not, now, disputed before me. This apart, upon careful scrutiny of the evidence on record, I find that the evidence on record amply proves that the said deceased had, indeed, married the respondent No. 1 and out of their cohabitation, the two female children, namely, respondent Nos. 2 and 3, were born and both of them are still minors. This apart, the evidence on the record also convincingly proves that the said deceased had married the appellant No. 1 way back on 17.12.1978 and out of their wed-lock, one female child, who is still minor, namely, appellant No. 1 was born. This fact has also not been disputed before me.
5. In the face of the above admitted facts, the legality or otherwise of the impugned order is required to be ascertained in this appeal.
6. Before proceeding any further, it is pertinent to note that Section 5 of Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955") lays down the conditions for solemnisation of a valid marriage between two Hindus. Section 5(1) read with Section 11 of the Act of 1955 clearly indicates that a marriage solemnised between two Hindus after the commencement of the Act of 1955 would be void, if any of the parties, at the time of solemnisation of the marriage, has a spouse living.
7. In the face of what is contained in Section 5(i) read with Section 11 of the Act of 1955, it logically follows that insofar as the marriage between the said deceased and the appellant No. 1 is concerned, which took place on 17.12.1978, the same is a valid marriage, but the marriage, which was solemnised, on 12.2.1992, between the said deceased and the respondent No. 1, was void inasmuch as the same was solemnised in contravention of the provisions of Section 5(i) of the Act of 1955. In fact, it is not even disputed before me that the marriage between the said deceased and the respondent No. 1 was void.
8. It is also, at this stage, essential to note that Section 16 of the Act of 1955 makes the children of a void and voidable marriage legitimate so far as their right of succession is concerned. Viewed from this angle, so far as the respondent Nos. 2 and 3 are concerned, these two minor female children having been born, admittedly, out of the illegitimate cohabitation between the said deceased and the respondent No. 1, are legitimate as far as their right of succession to the properties left behind by the said deceased are concerned.
9. In the face of the facts stated hereinabove, whether the respondent No. 1 can also be held entitled to succeed to the properties left behind by the said deceased was the crucial question, which was to be answered by the learned District Judge. The impugned order reflects that the learned District Judge has granted share to the respondent No. 1 in the properties aforementioned on the strength of Rule 1 of Section 10 of the Hindu Succession Act, 1956 (for short, "the Act of 1956"). For the sake of proper appreciation of this aspect of the matter, Rules 1 and 2 of Section 10 are quoted hereinbelow :
"Rule 1 - The intestate's widow, or if there are more widows than one, ail the widows together, shall take one share.
Rule 2 - The surviving sons and daughters and the mother of the intestate shall each take one share."
10. Though Rule 1 of the Act of 1956 indicates that if there are more than one widows left behind by a Hindu male, who died intestate, both the widows shall take one share in the properties left by the deceased concerned, what is of immense importance to note, while considering Rule 1, is that widows in Rule 1 are to be persons, who had been legally married wives of the male deceased concerned. If a Hindu male person, while having a legally wedded wife, marries another female person after the Act of 1956 has come into force, then, the second marriage would be illegal and the female person, who undergoes such a second marriage, cannot, as already indicated above, be legally treated as a wife and hence, the question of her being treated as a widow of such a deceased Hindu male does not arise at all.
11. While interpreting Rule 1 of Section 10 of the act of 1956, it has to be borne in mind that before coming into force the Act of 1956, there was no legal bar for a Hindu male to marry more than one female person, but after coming into force of the Act of 1956, the second marriage, during the subsistence of the first marriage, is void. Rule 1, in fact, encompasses and takes into account such a female person, who had married the male Hindu person, during the subsistence of the latter's valid marriage before coming into force of the Act of 1956. But after coming into force of the Act, 1956, second marriage being void, the question of treating such a woman as a widow does not arise at all. Hence, the marriage between the said deceased and the respondent No. 1, being after coming into force of the Act of 1955 and during the subsistence of the former's valid marriage with the appellant No. 1, cannot be treated valid nor can the respondent No. 1 be treated as a widow of the said deceased. Thus, the question of the respondent No. 1 succeeding to the properties of the said deceased by virtue of Rule 1 does not arise at all.
12. Situated thus, it is clear that the learned District Judge could not have held the respondent No. 1 entitled to 1/2 of the one share in the properties left behind by the said deceased. I am also guided to adopt this view from the law laid down by the Apex Court in the case of Rameshwari Devi v. State of Bihar, reported in AIR 2000 SC 735, wherein the Apex Court has held thus :
"It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (i) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void." (Emphasis is added)
13. However, so far as the respondent Nos. 2 and 3 are concerned, they, though illegitimate, are, as indicated hereinabove, entitled to succeed to the properties of the said deceased by virtue of Section 11 of the Act of 1955 and Rule 2 of Section 10 of the Act of 1956.
14. What crystallises from the above discussion is that while the appellants and the respondent Nos. 2 and 3 are entitled to one share each in the properties aforementioned, the respondent No. 1 is not entitled to any share in the said property. Thus, the impugned order to the extent that it grants half of the one share to the respondent No. 1 deserves to be set aside.
15. I may also pause here to point out that though in the schedule to the properties mentioned in the application for succession certificate, a claim was made by the respondent No. 1 over the pension, which is to be paid to the widow of the said deceased, the impugned order does not clarify as to who will get the pension amount. Mr. Ramchiary, learned counsel for the respondents, has, however, candidly conceded that since the appellant No. 1 is the legally wedded wife of the said deceased, she is the only one legally entitled to receive the pension. This apart, under the Assam Services (Pension) Rules, 1969, it is the legally wedded widow, who is entitled to obtain pension in such circumstances. Viewed from this angle, it is abundantly clear that it is the appellant No. 1, who, under the law, being the only widow of the said deceased, is entitled to receive the pension, which may become payable under the relevant Rules.
16. Considering, therefore, the matter in its entirety, this appeal is partly allowed. The properties left by deceased Basanta Kumar Das aforementioned shall stand divided into four (4) shares, the appellant Nos. 1 and 2, on the one hand, and the respondent Nos. 2 and 3, on the other, shall be entitled to receive one share each.
17. With the above modifications in the impugned order, dated 31.8.2002, aforementioned, this appeal shall stand disposed of.
18. Considering , however, the entire facts and circumstances of the case, the parties are left to bear their respective costs.