Allahabad High Court
Gulabia Alias Surjee Devi W/O Late Vijay ... vs Sitabiya Alias Jagpatia Alleged W/O ... on 25 April, 2006
Equivalent citations: 2006(4)AWC3370, AIR 2006 (NOC) 1379 (ALL), 2006 (5) ALL LJ 114, 2007 (1) AKAR (NOC) 47 (ALL), 2006 A I H C 3185, (2006) 101 REVDEC 59, (2006) 63 ALL LR 725, (2006) 4 ALL WC 3370, (2007) 1 CIVLJ 625
Author: Rajes Kumar
Bench: Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition, the petitioners has challenged the order of the District Judge, Kaushambi dated 10th April, 2003, Annexure 25 of the writ petition, which has been passed in appeal against the judgment and order dated 25.02.2002 passed by the Civil Judge, (Senior Division), Kaushambi.
2. It appears that respondent No. 1 filed an application, being succession Suit No. 15 of 2001 in the Court of Civil Judge, (Senior Division), Kaushambi under Section 372 of the Indian Succession Act, 1925, inter alia on the ground that her husband Late Vijay Bahadur died on 16.11.1999 in village Baish Kanti, Pargana Karari, Tehsil Manjhanpur district Kaushambi and legal heirs of the deceased were respondent Nos. 2, 3, 4 and 5 and Smt. Late Ram Kali wife of Dev Nath and mother of late Vijay Bahadur; that the said legal heirs had come to a compromise amongst themselves that succession certificate in respect of the money deposited in the Provident Fund of late Vijay Bahadur amounting to Rs. 54,9037- with SSI/Sig/NR/Etawah be granted in favour of respondent No. 1; that it is also mentioned that late Vijay Bahadur had died in harness while working as Khalasi in the Northern Railway. In the said application, petitioners were not impleaded. However, when the petitioners came to know about the said case, they immediately moved an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as parties. The application was allowed and the petitioners were impleaded as defendants in the above suit. Petitioners filed written objections before the learned Civil Judge, (Senior Division), Kaushambi. In the said objections, though it was disputed that respondent No. 1 was not the legally wedded wife of late Vijay Bahadur and she had never been married to him. The petitioner No. 1 claimed to had been married as per Hindu Shastra claiming all the three sons, namely, Ashok Kumar, Santosh Kumar and Man Both as legtimate sons of late Vijay Bahadur. The learned Civil Judge. (Senior Division), Kaushambi vide order dated 25th February, 2002 held that respondent No. 1 is the legally wedded wife of late Vijay Bahadur and has issued probate in favour of respondent No. 1. The claim of the petitioners that petitioner No. 1 was the legally wedded wife of late Vijay Bahadur has not been accepted. Petitioners filed appeal before the District Judge, Kaushambi. The District Judge, Kaushambi rejected the appeal. However, after going through the various evidences, it has been observed mat in the Kutumb register produced by both the parties, the name of both the wives of Late Vijay Bahadur and their children were mentioned. It has been observed that Smt. Sitabiya was the first legally wedded wife and during the subsistence and as there was no divorce. Petitioner No. 1 was not legal wife. Thus, Smt. Sitabiya has been held as the first wife and legal heir Appellate authority also observed that Smt. Gulabia has got photographs with late Vijay Bahadur and sons were born from late Vijay Bahadur and in the school mark sheet and result the name ot late Vijay Bahadur is shown as father. Urns, on the material on record, it has been held that Smt. Gulabia was the second wife and was not held as legal heir.
3. Heard Sri Rakesh Bahadur, learned Counsel for the petitioners and Sri R.B. Tripathi. learned Counsel for the respondents.
4. Learned Counsel for the petitioner submitted that the appellate authority on the basis of material on record has categorically held that Smt. Gulabia was the second wife and the sons of Gulabia were the sons of late Vijay Bahadur. He submitted that Smt. Gulabia being if legal wife may not be entitled for the share in the property of late Vijay Bahadur, but the sons of Smt. Gulabia being legitimate sons of late Vijay Bahadur are entitled for the shares in the property of late Vijay Bahadur. In support of his contention, he relied upon the decision of the Apex Court in the case of Rameshwari Devi v. State of Bihar and Ors. . He also relied upon the counter affidavit filed by Sri Phool Chandra, respondent No. 3 in which he has stated that the petitioners were living with the respondents together in the same house along with their late father Vijay Bahadur as a real brothers and sisters and, thus, all the children are entitled for the share equally in the moveable and immoveable properties left behind by late Vijay Bahadur.
5. Learned Counsel for the respondents submitted that Smt. Gulabia was never married to late Vijay Bahadur. She was married to some one else and all the three sons were not the sons of late Vijay Bahadur and, therefore, petitioners are not entitled for the share in the property of late Vijay Bahadur
6. Having heard the learned Counsel for the parties, I have perused both the impugned orders.
7. I find substance in the argument of the learned Counsel for the petitioners. The finding of the appellate authority that Smt. Gulabia, petitioner No. 1 was the second wife of late Vijay Bahadur and the sons of Smt. Gulabia were sons of Late Vijay Bahadur are findings of fact. This finding has not been challenged by the respondents and, thus, it has become final. Learned Counsel for the petitioner has also not challenged the findings recorded by the appellate authority. In the case of Rameshwari Devi v. State of Bihar and Ors. (supra), Apex Court held as follows:
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 (1) 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 a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the slegitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments, which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.
8. The Apex Court in the aforesaid case held that in view of Clause (i) of Section 5 of the Hindu Marriage Act, second marriage was void and under Section 16 of the Hindu Marriage Act, children of void marriage are legitimate. Thus, illegal wife is not entitled for share, but sons from that wife are entitled for shares in the property of deceased.
9. Thus, in view of the aforesaid Apex Court decision, Petitioner No. 1 is not entitled for any share in the property of late Vijay Bahadur being illegal wife, but her sons, petitioner Nos. 2, 3 and 4 who are the legitimate sons of Late Vijay Bahadur are entitled for the shares in the property of late Vijay Bahadur. The case of the petitioner is also supported by an affidavit filed by Sri Phool Chandra, respondent No. 3.
10. For the reasons stated above, the impugned orders dated 10th April, 2003 passed by the District Judge, Kaushambi and 25.02.2002 passed by the Civil Judge, (Senior Division), Kaushambi are set aside.
11. In the result, writ petition is allowed. The orders dated 10th April, 2003 passed by the District Judge, Kaushambi and 25.02.2002 passed by the Civil Judge, (Senior Division), Kaushambi are set aside. Civil Judge, (Senior Division), Kaushambi is directed to pass fresh order in the light of the observations made above. Both the parties shall appear before the Civil Judge, (Senior Division), Kaushambi on 9th May, 2006 along with certified copy of the order Civil Judge, (Senior Division), Kaushambi may either pass order on the same day or may fix any date for passing appropriate orders.