Chattisgarh High Court
Vijay Kumar Pandey vs Chameli Bai And Anr on 29 April, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 278 of 2014
Judgment Reserved on 03/03/2022
Judgment Delivered on 29/04/2022
Vijay Kumar Pandey S/o. Shri Bharatlal Pandey, Aged about 50 years,
Caste Bramhin, R/o. Village Karnoud, Tahsil Champa, P.S. Birra, Civil
and Revenue District Janjgir Champa (CG)
---------Appellant/Plaintiff
VERSUS
1. Chameli Bai, Wd/o. Hiralal Pande, Aged about 50 years, R/o. Village
Karnoud, Tahsil Champa, Hal Mukam Village Goud, Motilal Tiwari, P.O.
Goud, Tahsil Janjgir, District Janjgir Champa (CG)
At present R/o. V/o. Suresh Kumar Pandey, Railway Colony Qt. No.
70/3, Champa Civil and Revenue District Janjgir Champa (CG)
2. State of Chhattisgarh, Through Collector Janjgir Champa (CG)
----------Respondents/Defendants
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For the Appellant : Mr. Bhuvaneshwar Singh Rajput, Advocate For the Respondents : Mr. Amit Kumar and Mr. R.K. Patel, No.1 and 3 Advocates For the State : Mr. Kunal Das, Panel Lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This is plaintiff/appellant's Second Appeal preferred under Section 100 of CPC against the judgment and decree dated 18.06.2014 passed by Additional District Judge, Janjgir Chamnpa in Civil Appeal No. 36- A/2013 arising out of judgment and decree dated 17.03.2011 passed by Second Civil Judge, Class-II, Champa District Janjgir Champa in Civil 2 Suit No. 48 A/2008, whereby suit of appellant for declaration of title was dismissed by the Courts below.
2. This second appeal preferred by the plaintiff was admitted for final hearing on 20.01.2022 by formulating the following substantial question of law: -
"Whether the learned trial Court was justified in dismissing the suit filed by the plaintiff ignoring the well settled legal position that the second wife cannot inherent ancestral property of her husband ignoring the provisions of Hindu Succession Act"?
3. For the sake of convenience, parties hereinafter will be referred to as per their status shown in the Civil suit No. 48-A/2008 before the trial Court.
4. Brief facts necessary for disposal of this appeal are that, the plaintiff has filed the suit for declaration of title contending that the property described in scheduled-A of the plaint, measuring 5 acres situated at village Karnoud, PH-17, Tahsil Champa and property described in scheduled-B, measuring 1.1 acres situated at village Nakkidih, PH-17, Tahsil Champa as ancestral property. Late Chandulal Pandey was the resident of village Karnoud, Tahsil Champa. As per family tree, Chandulal Pandey had two sons namely Heeralal and Bharatlal. The plaintiff is the son of Bharatlal. Heeralal had died as issueless on 26.10.2000 and after his death, Panchas of village has ordered that with the consent of Kamla Bai, Heeralal has adopted plaintiff as his son through adoption deed dated 16.11.2000, he inherited the property left by Heeralal Pandy. It is contended that the plaintiff has taken care of Heeralal during his lifetime and after his death the plaintiff has performed his last rituals. It has also been mentioned in the adoption deed that the plaintiff will get 1-1 acres of land of village Karnoud and village Naktidih, therefore, the plaintiff looked after Heeralal and Kamla Bai during their lifetime. It is contended before death of Kamla Bai, Chameli Bai and Kamla Bai will utilize the remaining part of the lands for their livelihood. It is further contended that after the death of Heeralal, Chameli Bai and Kamla Bai filed an application for mutation 3 before Tahsildar Champa which was objected by the plaintiff and on 09.06.2003 Tahsildar has passed the order in favour of Chameli Bai and Kamla Bai against the order of Tahsildar, an appeal is pending before Sub Divisional Officer for consideration. Kamla Bai died on 04.11.2003 after her death, the plaintiff has performed her last rituals. It is further contended that as per Hindu Law there is provision of one wife and first wife is entitled to get share of the husband. Since, Heeralal has performed second marriage during subsistence of his first wife, as such, Chamel Bai has no right over the property of Heeralal. It is contended that as per the order passed by Tahsildar, right of the plaintiff has been affected as he is the only son of Heeralal, on account of adoption deed executed in favour of plaintiff and would pray that it be kindly declared that defendant no. 1 being second wife of Heeralal is not entitled to get share over the property of Heeralal. It be also declared that plaintiff is the legal heir of deceased Heeralal's property.
5. Defendant No.1 has filed her written statement denying the allegation made in the plaint mainly contending that late Heeralal has not adopted the plaintiff on 15.01.1987 as per their custom. It is also stated that Heeralal neither adopted the plaintiff nor executed any adoption deed in favour of the plaintiff; therefore, adoption deed is forged and fabricated. It is also contended that in the adoption deed signature of Heeralal has not been mentioned. It is empathetically denied that Chameli Bai was never called in the Panchayat meeting in village regarding adoption of the plaintiff. It is denied that Kamla Bai and Chameli Bai have signed any panchana and the document was submitted with the plaint was not in accordance with the law. It is also stated that the plaintiff has not taken care of Heeralal and Kamla Bai during their lifetime and the plaintiff has not performed the last rituals of Heeralal and Kamlal Bai. It has been further denied that Kamla Bai and Chameli Bai have put their signatures in the adoption deed. It has also been admitted that no agreement was arrived at between the defendant no.1 and Kamla Bai to execute Irkrarnama. It has also been stated that Tahsildar has rightly passed the order of mutation against the plaintiff and against the order of Tahsildar, an appeal preferred was before the Sub Divisional Magistrate which is pending for consideration. It has been further 4 contended that before Hindu Law there is custom that if there is no child with the first wife, for getting child the husband can remarriage which is accepted by the society at large and by law also. Heeralal has no child from his first wife, therefore, to grow the family, Heeralal got second marriage with Chameli Bai with the consent of Kamla Bai, therefore, admission of this fact cannot be denied by the plaintiff. It has also been stated that Kamla Bai has expired in her parental house at village Gond and last ritual has been performed by brother of defendant No.1 and would pray for dismissal of the suit.
6. The plaintiff to substantiate his stand has examined Vijay Kumar Pandey (PW-1), Girish Kumar (PW-2), Heeralal (Ex.P-3) and exhibited documents as adoption deed (Ex.P-1) dated 19.12.1986, Panchanama order (Ex.P-2), B-1 Kistbandi (Ex.P-3), B-1 Kistbandi (Ex.P-4), Khasra panchasala (Ex.P-5). The defendant examined Anantram Pradhan (DW-1), Chameli Bai (DW-2), Bheem Rao (DW-3).
7. Vijay Kumar Pandey (PW-1) has admitted that in the stamp (Ex.P-1) it has not been mentioned that stamp was purchased for adoption even description of Ikrarnama was mentioned in the stamp. He has also admitted that in adoption deed (Ex.P-1) Kamla Bai and Chameli Bai have put their signatures. He has also admitted that after death of Heeralal, names of Chameli Bai and Kamla Bai have been mutated in the revenue records. He has denied that before adoption accounts of Heeralal and Bharatlal have been divided and they were residing separately in their possession.
8. Girish Kumar (PW-2) has stated in his evidence that on 15.01.1987 an adoption deed was executed before the other two witnesses. He deposed that the land in question was in possession of plaintiff and he was cultivating the same. Defendant No.1 was residing in her parental house since last 8-10 years. He further deposed that the plaintiff is the adopted son of Late Heeralal Pandey.
9. Heeralal (PW-3) has stated that the plaintiff is the adopted son of Heeralal Pandey. He has deposed that the stamp paper was written with the consent of Kamlal Bai and execution of document was done in the house of Heeralal Pandey. He has also admitted that adoption deed 5 was written by Prahlad Pandey and Bhagatram and at that time he was present there. He has stated that Kamla Bai has given her oral and written consent at the time of execution of adaption deed before Panchayat in favour of plaintiff. He deposed that adoption deed was executed on 15.01.1987 and the plaintiff is the only son of Heeralal Pandey. In the cross-examination, this witness has admitted that when adoption deed was written in the panchayat, he was not present there therefore, he cannot say that who were present at the time of execution of adoption deed.
10. Aantram (DW-1) has deposed that the behavior of plaintiff was not good with Heeralal and he did not want to give any share of his property to the plaintiff. He deposed that Heeralal has not adopted the plaintiff and whatever paper was submitted by the plaintiff in his favour was forged and fabricated.
11. Chamelibai (DW-2) was examined before the Court; wherein she has denied that Heeralal wanted to keep the plaintiff as his son. She deposed that there was already partition held between Heeralal and Bharat Lal. She has reiterated that her marriage was solemnized in the year 1979 with the consent of first wife of Heeralal and since then she is living for the last 20 years with Heeralal and Kamla Bai. She knows the signature of Heeralal but in the adoption deed Heera Lal has not put his signature. She has also denied her signature in the adoption deed. She has stated that her husband never told her about the adoption of plaintiff and Heeralal has not submitted any paper regarding adoption whatever paper submitted regarding adoption is forged and fabricated. Other witnesses have reiterated the stand taken by the Chameli Bai and have specifically stated that the plaintiff has not produced any papers regarding adoption in his favour. She has stated the behaviour of plaintiff was not cordial with Kamla Bai and Chameli Bai. She has stated that the relation with Heeralal and Girish Kumar was not good and Girish Kumar in collusion with the plaintiff wanted to occupy in the property of Heeralal. She has deposed that Girish Kumar was having enmity with Heeralal as father of Girish Kumar has lost the election of Sarpach with Heeralal. She has further stated that in the cross- examination that the adoption deed was not prepared before him and 6 she has not put her signature in it and the plaintiff has produced the document which is forged and fabricated. She has stated that Heeralal has never told her about adoption of Vijay Kumar Pandey as his son.
12. Bheemram (DW-3) has stated that Kamla Bai has expired in Champa. He has stated that Vijay Kumar Pandey has no cordial relation with the family. Vijay Kumar Pandey intends to grab the property of his uncle therefore, he dispossessed Chameli Bai and Kamla Bai. He has specifically denied that Heeralal Pandey has adopted Vijay Kumar Pandey before Panchayat and no panchayat meeting was held in the village.
13. The trial Court after appreciating the evidence, material on record has recorded the finding that in adoption deed there was no signature of Heeralal and his both wives and Chameli Bai has made specific statement that Heeralal has not executed any adoption deed. The Court has also recorded the finding that the plaintiff himself stated that Heeralal has not informed his wife about adoption deed, therefore, the adoption deed is not valid document and it is held that the plaintiff is not the son of Heeralal. Being aggrieved by the judgment and decree the plaintiff has preferred first appeal which was registered as Civil Appeal No. 37-A/2013, the learned District Judge, Janjgir vide its judgment and decree dated 18.06.2014 has dismissed the said appeal. Hence, this Second appeal by the plaintiff on the above stated substantial question of law framed by this Court.
14. Learned counsel for the appellant would submit that learned Courts below have ignored the fundamental issue which is required to be determined by this Court whether the second wife has right to inherent ancestral property of her husband as per provisions of Hindu Succession Act 1956 or not ? He would further submit that the Courts below have erred in not accepting the adoption deed executed on 15.01.1987 as a valid deed, therefore, the judgment and decree passed by the Courts deserves to be set aside and the substantial question of law framed by this Court deserves to be answered in favour of the appellant.
715. On the other hand, learned counsel for respondent No. 1 and 3 would submit that the Courts below have rightly held that the plaintiff has failed to prove adoption deed as per provisions of Hindu Adoption Act. He would further submit that the appellant has not proved that he is the adopted son of late Heeralal and adoption deed is forged; therefore, plaintiff is not entitled to get any relief. He would refer the judgment of Hon'ble Supreme Court in the cases of Harnek Singh vs. Pritam Singh AIR 2013 SC 3789,Narayan v. Bobdiya and anr 2014(1) MPWN 57, Moolchand Chhotelal v. Amritbai Manji Khoda Bhai and others 1976 MPLJ. He would further submit that as per Hindu Adoption and Maintenance Act before adoption consent of wife was obtained, has not been proved by the plaintiff. As such, the adoption of the plaintiff is against the Hindu Adoption Act and the both the Courts have held that the adoption deed is null and void. This is a concurrent finding of fact, therefore, does not warrant any interference by this Court
16. I have heard learned counsel for the parties and record of the Court below with utmost satisfaction.
17. Before adverting to the factual matrix of the case, it is necessary for this Court to go through the relevant provisions of Hindu Marriage Act, 1955 (for short, the Act of 1955).
Section 5 of the Act, 1955 read as under;- Conditions for a Hindu marriage.--A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, --
(i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party--
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity]
(iii) the bridegroom has completed the age of 2 [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
(v) the parties are not sapindas of each other, 8 unless the custom or usage governing each of them permits of a marriage between the two.
18. Section 11 of the Act, 1955 deals with void marriages, which reads as follows:
"Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."
19. As per Hindu Succession Act,1956 Section 8 General Rules of succession in the case of males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule,
(b) secondly, if there is no heirs of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is not heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
20. Section 9 of Hindu Succession Act 1956;- Order of succession among heirs in the Schedule.--Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
21. Section 10 of Hindu Succession Act 1956;- Distribution of property among heirs in class I of the Schedule.--The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules;-
Rule-1.The intestate's widow, or if there are more widows than one, all 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 9 Rule -3 The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule-4 The distribution of the share referred to in Rule 3- (I) among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters gets equal portions; and the branch of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
The word 'widow' mentioned among Class I heir is lady who was validly married under the provisions of the Hindu Marriage Act, 1955 and who has acquired the status of widow by virtue of death of her husband. If her marriage with person is void under law, on his death she would not get status of widow under Class I of the scheduled of Hindu Succession Act, 1956.
22. Coming to the facts of the case, it is not in dispute that defendant No.1 is a second wife of the Heera Lal and at the time of marriage, his first wife Kamla Bai was living, therefore, second marriage of Heeralal with Chameli Bai will be null and void as per section 5 of the Hindu Marriage Act. Even if, the second marriage of Heeralal was sermonized with Respondent No.1 with the consent of his first wife Kamla Bai cannot be legalized the second marriage and it will be a void marriage as per Section 11 of the Hindu Marriage Act 1955. Thus from the above stated fact it is quite vivid that the second marriage of Heeralal with Respondent No.1 is void marriage, therefore, the respondent No.1 is not the legally wedded wife or lawful wife of Heera Lal.
23.The Hon'ble Supreme Court in case of Yamunabai Anantrao Adhay v. Anantrao Shivram Adhav and another 1988 (1) SCC 530 has held as under:-
4. For appreciating the status of a Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) have to be ex-10
amined. Section 11 the Act declares such a mar-
riage as null and void in the following terms:-
11. Void marriages-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so de-
clared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
Clause (1)(i) of S. 5 down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, there- fore, is null and void. It was urged on behalf of the appellant that a marriage should not be treated as void because such a marriage was earlier recog- nized in law and custom. A reference was made to s 12 the Act and it was said that in any event the marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in S. 4, no aid can be taken of the earlier Hindu Law or any custom or usage as a part of that Law inconsistent with any provision of the Act. So far as S. 12 concerned, it is confined to other categories of marriage and is not applicable to one solemnised in violation of s. S(1)
(i) of the Act. Sub-section (2) of s 12 further re- strictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages cov- ered by s. 11 are void-ipso- jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the section permits a formal dec- laration to be made on the presentation of a peti- tion, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provi- sions of s. 16, which is quoted below, also throw light on this aspect:
" 16. Legitimacy of children of void and voidable marriages.-(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the com- mencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a de- cree of nullity is granted in respect of that marriage 11 under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties of the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child not withstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Sec-
tion 12 , any rights in or to the property of any per- son, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legiti- mate child of his parents.
Sub-section (1), by using the words underlined above clearly, implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by s 12 , sub- section (2) refers to a de-
cree of nullity as an essential condition and sub- section (3) prominently brings out the basic differ- ence in the character of void and voidable mar-
riages as covered respectively by ss. 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the ap- pellant must, therefore, be treated as null and void from its very inception.
4. The question, then arises as to whether the ex- pression 'wife used in s. 125 the Code should be interpreted to mean only a legally wedded wife not covered by s. 11 the Act. The word is not defined in the Code indicating in the Explanation its inclu- sive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceding that status. The ex-
pression must, therefore, be given the meaning in which it is understood in law applicable to the par- ties, subject to the Explanation (b), which is not rel- evant in the present context.
1224. Hon'ble the Supreme Court in Rameshwari Devi v. State of Bihar & others (2000) 2 SCC 431 has held at paragraph 14 as under:-
"14. 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..............."
25. Hon'ble High Court of Madhya Pradesh in the case of Sarita Bai v. Chandra Bai and others AIR 2011 page no. 222 has held as under:-
9. On bare perusal of the findings of the learned two Courts below, it is gathered that applicant Sarita Bai got married with Mehtab Singh Gond in the year 1984. Without obtaining any decree of divorce during the subsistence of his first marriage with Sarita Bai, Mehtab Singh Gond solemnized second marriage with Chandra Bai. Thus, the marriage of Mehtab Singh Gond with Chandra Bai is in contravention to Section 5 of the Hindu Marriage Act, 1955 (in short, the Act of 1955). The findings recorded by the two Courts below in this regard is a pure finding of fact and cannot be interfered with in this revision. Hence, it is hereby C.R. No. 469/2006 held that during the subsistence of first marriage with Sarita Bai without obtaining divorce from her, deceased Mehtab Singh Gond solemnized second marriage in the year 1987 with Chandra Bai which is in contravention to Section 5 of the Act of 1955, therefore, it is a void marriage under Section 11 of the Act of 1955. Hence, rightly, the claim of Chandra Bai claiming succession certificate has not been allowed by learned Courts below. However, the learned two Courts below erred in law in not allowing prayer to grant succession certificate to the applicant Sarita Bai who was a legally wedded wife of Mehtab Singh Gond.
26. From perusal of the record, it is quite vivid that defendant No. 1/ Respondent No.1 got married with Heeralal, without obtaining any decree of divorce during the subsistence of his first marriage with Chameli Bai. Thus, the marriage of Heeralal with Respondent No.1/ 13 Chameli Bai is in contravention to section 5 of the Hindu Marriage Act, 1955, it is void marriage as per the provision of section 11 of Hindu Marriage Act and the law laid down by the Hon'ble Supreme Court. Therefore, respondent No.1 is not legal heir of Class- I, as such she cannot claim any right over the property of Heeralal Pandey. Thus, the substantial question of law is answered in affirmative in favour of the plaintiff and it is held that defendant No.1/respondent No.1 is not entitled to get any share in the ancestral property of her husband.
27. In view of the foregoing discussion, the appeal is hereby allowed. The judgment and decree passed by both the Courts below are hereby set aside.
28. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Santosh