Bombay High Court
Sharad Shankarrao Mane And Etc. vs Ashabai Shripati Mane on 25 September, 1996
Equivalent citations: AIR1997BOM275, 1997(2)BOMCR12, AIR 1997 BOMBAY 275, (1997) 2 BOM CR 12
ORDER
1. Both these petitions will be disposed of by this common judgement and order.
2. Smt. Ashabai Shripati Mane is a common respondent in both these petitions who was granted Letters of Administration with respect to the property of her deceased husband Shripati Nan Mane. The said respondent Ashabai Mane had filed Petition No. 591 of 1990 for being granted Letters of Administration and the grant was made in her favour on 3-12-1991. The present petitions are filed by one Sharad Shanhkarrao Mane (Misc Petn. No. 14 of 1994) and one Namdev Govind Dhavale (Misc. Petn. No. 4 of 1995) for revocation of the said grant under S. 263 of the Indian Succession Act.
3. It is the case of Sharad Mane who is the petitioner in Misc. Petn. No 14 of 1994 that he is the nephew of Shripati Nan Mane (brother's son). It is his contention that the respondent Smt. Ashabai mane was never married to his uncle Shripati Mane who died interstate. It is his case that though the respondent Ashabai Mane claims to be the wife of the said deceased Shripati Nana Mane, she was not legally married to him and that in fact she was earlier married to one Kashid and that her marriage with the said Kashid was not legally dissolved. It is further the case of the petitioner that he along with eleven others are the only heirs and legal representatives of the said Shripati Mane who died intestate at Bomaby on 15-6-1975. He has given the names of those eleven others who according to him are the heirs and legal representatives of the said Shripati Mane including himself. It is the contention of the petitioner Sharad Mane that the said deceased Shripati Mane during his life time had married to one Hirabai alias Subhadra sometime in the year 1953-54. It is further his contention that the couple had no issue. Thereafter Shripati Mane died intestate in Bombay on 15-6-1975 leaving behind him the said Hirabai alias Subhadra as his only heir and legal representative, as mother of Shripati had predeceased him. Thereafter Hirabai also died intestate at Bomaby on or about 3-8-1988. It is that case of the petitioner that therefore the only person who were heirs and legal representatives of Hirabai were the brothers of the deceased Shripati Mane namely; (i) Shankarro Nana Mane and (ii) Dinkarrao Nana Mane .
4. It is the case of the petitioner that the said Ashabai Mane suppressed all these facts and succeeded in obtaining Letters of Administration of the estate of the said deceased Shripati Mane which consisted of one Hair Cutting Saloon situated at Shivaji Park, Bombay, a plot of land admeasuring about 300 square yards along with a house situated at village Nisare Taluka Patan, Dist., Satara valued at Rs. 20,000/- agricultural land admeasuring about 30 gunthas situated at the same village valued at about Rs. 16,000/- and amount standing to the credit of the deceased Shripati Mane being the pension amount from the Bombay Municipal Corporation under Account No. BMC 109 with Bank of Maharashtra Ranade Road, Dadar, Bombay 400028 from the date of death of the deceased Shripathi Mane till Nov. 1990 which is about Rs. 6600/-.
5. The petitioner's case further is that his father Shankarrao Nan Mane died intestate at Dombivali on or about 7th June, 1993 leaving behind the petitioner and eleven others as the only heirs and legal representatives. After the death of said Shankarrao Mane, the petitioner started making enquires about the estate and properties of the said Shankarrao Mane and during the course of the said enquiries, the petitioner became award of the said estate left behind by the said deceased Shripati Mane in which the petitioner's father Shankarrro had a right at the time of his death. It is further the case of the petitioner that in the course of the said enquires, the Petitioner learnt that Ashabai was claiming to be the widow of the said deceased Shripati Mane and the only heir and legal representative of the said deceased Shripati. The petitioner, therefore, filed a suit being Suit No. 5945 of 1993 in or about Sept. 1993 in the Bombay city civil Court at Bombay against the said Ashabai and others for inter alia declaration regarding his shares in the said estate left behind by the said decease Shripati and for other reliefs as set out in that plaint. He also took out notice of motion being Notice of Motion No. 4654 of 1993 inter alia seeking interim and ad interim relief in his favour. He has stated that the said suit so also the notice of motion are still pending in the City Civil Court. He has further stated that during the course of those proceedings, he learnt that Ashabai had filed T& LJ Petition No. 591 of 1990 in the High Court for Letters of Administration with respect to the property of the said deceased Shripati Nan Mane. Thereafter, he took search of the record and proceedings. It is his contention that in the said proceedings, Ashabai has made certain false statements about her marital status amongst other things and therefore the present petition is filed by the petitioner under Section 263(b) of the Indian Succession Act, 1925. It is his contention that the said grant was obtained by Ashabai fraudulently by making a false statement about her marital status and by concealing from the Court a marital fact about her. On these grounds the petitioner has approached the testamentary Court for revocation of the grant made in favour of Ashabai.
6. Misc. Petition No. 4 of 1995 is filed by the petitioner, one Namdev Govind Dhavale against the very same respondent Ashabai and for the same purpose namely for revocation of the grant made in her favour with respect to the property of the deceased Shripati Nana Mane.
7. It is the case of the petitioner Namdev Dhavale that is the cousin-brother of the deceased Hirabai who admittedly was the wife of the deceased Shripati Mane. It is the contention of the petitioner that after thee demise of Shripati Mane, Hirabai was the only legal heir and representative of the said deceased Shripati and that the said Hirtabai was taken care of in her old age by the was petitioner and that the said Hirabai executed a will dated 7-5-1988, and not out of love and affection for the petitioner, gave away to him the entire property of which she had become the owner by virture of being the widow of the deceased Shripati Mane. IN this petitioner also, contention is made by the petitioner that the respondent Ashabai Mane was falsely claiming to be the widow of the deceased Shripati with the intention of swallowing the property of deceased Shripati Mane and that the petitioner through his Advocate Mr. P. L. More of Taluka Patan, Dist. Satara had addressed a letter dated 31-8-1988 to the respondent and informed her that Hirabai was the wife of Shripati Mane and that respondent Ashabai was not married to said deceased Shripati and therefore she had no right to claim property of the said Shripati and that the said Hirabai alone was so entitled, who out of love and affection for the petitioner executed a registered will 7-5-1988 in favour of the petitioner Namedv Dhyale.
8. Accordingly, revocation of the grant made in favour of Ashabai is prayed for by the petitioner under Section 263(b) of the Indian Succession Act, 1925.
9. I have heard Mr. Patwardhan and Mr. Jawal appearing for the respective petitioners in these two petitions so also Mr. M. P. Shukla appearing for the respondent Ashabai Mane, at length.
10. Mr. Parwardhan, appearing for the petitioner in Misc. Petition No. 4 of 1995 tendered xerox uncertified copies of some documents which trying to prove that Ashabai was not married to the said Shripati and that her earlier marriage with one Kashid we not legally dissolved and that as per those documents, the said Ashabai was minor if at all her contention that she was married to said Shripati before 1955 when Hindu Marriage Act came into force was accepted. The documents sought to be tendered by Mr. Patwardhan were xerox copies of some affidavit allegedly made by Ashabai and xerox copy of the birth certificate issued by Local Authority in respect of the date and place of birth of the said Ashabai. Mr. Patwardhan also emphasised that application for grant of Letters of Administration was made by the respondent Ashabai only when the "real" widow Hirabai died on or about 3-8-1988 as if she was waiting for the death of Hirabai and as soon as she expired, Ashabai approached the testamentary Court for grant of Letters of Administration of the estate of the deceased Shripati Mane.
11. As far as contention of the petitioner Namdev Dhavale in Misc. Petition No. 4 of Namdev Dhavale in Misc. Petition No. 4 of 1995 is concerned, they are almost identical with the contention and grounds taken up by the petitioner in Misc. Petition No.14 of 1994 in asmuch as both have submitted that Ashabai was not legally married to the said deceased Shripati and that Hirabai was the only legally wedded wife of Shripati. The petitioner in Misc Petition No.4 of 1995 who claims to be the cousin brother of the said Hirabai has gone a step further and has claimed that Hirabai executed a will making him a beneficiary of the entire estate which had come into her hands as sloe heir and legal representative of her deceased husband Shripati. It appears that he has also filed probate proceedings in the District Court of Satara which are s\till pending. He has stated that he learnt about the petition No. 591 of 1990 filed by Ashabai in Bombay for Letter of Administration when she filed her written statement in Petition No. 169 1990 filed by him in the District Court of Satara fore probate.
12. At the outset, it has to be highlighted that in both these petitioners the prayer is Common namely for revoking the grant which is already made in favour of the respondent Ashabai on 3-12-1991 and this prayer is made under Section 263(b) of the Indian Succession Act, 1925. The common ground is that Ashabai was no not legally married to the said Shripati and that she has concealed this fact fraudulently from the Court and thus succeeded in getting the Letters of Administration in her favour. It means that there is a challenge in both the petitions to her status as a wife of the deceased Shripati Nan Mane. Both the petitioners are trying to disporve the factum of the alleged marriage of Ashabai with Shripati on the basis of xerox copies of some documents which are not even true certified copies. In fact these xerox copies are tendered only in one matter namely Misc. Petition No. 14 of 1994. Now, the question is whether on the basis of the Xerox copies of some obscure documents which are not even true certified copies and which are not proved as per the provisions of Evidence Act should be accepted by the Court.? In my opinion, the answer will be obviously in the negative. Here the question is determining the legal status of a person and this declaration has to be given by a Civil Court of competent jurisdiction. The job of the testamentary Court is not to give declaration of this type. The job of the testamentary Court is to see that the estate of the deceased is properly represented by some person who can give a valid discharge to the debtor of the property till it is disbursed as per the personal Laws of the parties.
13. In the present case at hands the petitioner, especially in Misc. Petition No. 14 of 1994 has approached the Court and is seeking a declaration from a testamentary Court that Ashabai was not a legally wedded wife of Shripati Mane. He is seeking this declaration on the basis of xerox copies of some obscure certified copies. In short, the petitioner wants to dispense with the formal proof of the documents which is required as per the provisions of the Indian Evidence Act. Obviously his intention appears to be that on the basis of these documents the Court should reach the conclusion that Ashabai was not a legally wedded wife of Shripati and that therefore the grant which is granted in her favour should be revoked. In my opinion, this cannot be done as such a declaration cannot be given by this Court on the basis of the proof which he is trying to tender across the Bar. If the petitioner was armed with a decree of declaration about the marital status of Ashabai and has then approached this Court the said decree of declaration would certainly have been of assistance in considering the prayer of the petitioner for revocation of the grant made in favour of Ashabai but that is not the case here.
14. Section 263 of the Indian Succession Act, 1925 lays down the provision as to when the grant of probate or Letters of Administration may be revoked or annualleld for just case. There are five explanations given in the said Section 263. These explanations are not by way of illustration. They are exhaustive Mr. Patwardhan has taken recourse to clause (b) of Section 263 of the Indian Succession Act and has argued that the grant was obtained by Ashabai fradulently by making a false statement and by concealing from the Court that she was not legally married to the said Shripati.
15. Mr. Shukla, appearing for the respondent Ashabai on the other hand has tendered across the Bar ration-card for the relevant period in which Ashabai's name is shown as the wife of Shripati. He has also sought to tender documents showing that n Ashabai was residing with the said Shripati as his second wife with the consent of Hirabai for about 20 to 23 years. He also argued that there is a presumption that when a man and woman are staying in this way with each other for a continuously long period then they are presumed to be husband and wife. Thus advocate for the respondent is relying upon documents like ration card to prove that Ashabai was in fact wife of Shripati albeit a second wife.
16. It has to be stated that if marriage of Ashabai and Shripati was solemnised after coming into force of the Hindu Marriage Act, 1955 then obviously her marriage with Shripati was a bigamous marriage since Shripati admittedly had his first wife living namely Hirabai. In view of this clear legal position, the consent allegedly given by Hirabai for the second marriage of Ashabai with Shripati is irrelevant. However the point here is that both the parties are trying to prove and disprove the factum of marriage of Ashabai with Shripati with the help of some documents which are simply xerox copies and which are not duly proved in the Court of Law as per the provisions of Indian Evidence Act. Unless evidence is recorded and the documents are formally proved in the proceedings in a Court having jurisdiction to do so, a positive statement about the status of a person cannot be conclusively made. I have already observed that if the petitioners were armed with a decree of declaration from a Civil Court of competent jurisdiction to the effect that Ashabai was not a legally wedded wife of Shripati then on the basis of that decree, recourse to Section 263(b) of Indian Succession Act, 1925 would have been justifiable if Ashabai had concealed the said fact at the time of obtaining Letters of Administration from the Testamentory Court. Even if we assume that Ashabai was not legally married to Shripati, there is much room to say that she did not think it so. It would be a rather bald statement to say that she has fradulently concealed that she was not legally married to Shripati when prima facie it appears that she was indeed having a bona fide belief that she was the wife of Shripati.
17. There is another social angle to this entire episode. If declaration and conclusive findings are given by a Testimony Court about the martial status of a woman accepting and believing the xerox copies of some documents tendered across, the bar and if the grant already made in favour of that woman is revoked on the basis of such documents which are not formally proved as per the provisions of law then it will be too risky a situation. If a person dies without having an issue, his widow will be harassed by the relatives of the deceased husband who might approach the Testamentary Court with these types of applications for revocation of the grant already made in favour of the widow and the poor helpless widow would be required to prove that she was legally married to her deceased husband. This will open floor-gates of litigations where the widow would be compelled to prove in such cases about her marital status and to face the greedy relatives of her deceased husband. The presumption that a man and woman are regarded husband and wife if there is a continuous long cohabitation between them is therefore a reasonable one. To decide the marital status of parties is not a job of a Testamentary Court. Moreover, for revocation of grant already made a strict proof of presence of any one of the stated circumstances in the explanation under Section 263 of the Indian Succession Act is required, since revocation sets aside an earlier valid judicial order. To revoke a grant already made by a competent Court, strict proof should be insisted upon. It cannot, and should not be dispensed with. In the present case at hands, however, the petitioners are not only seeking to dispense with the formal proof of documents but are insisting that this Court should take cognizance of them, act upon them, act upon them and give a conclusive finding touching a status of a person which certainly is not permissible. Under the circumstances, the prayers of the petitioners cannot be granted. Hence, the following order is passed :
Misc. petition No. 14 of 1994 and Misc. Petition No. 4 of 1955 are both dismissed. No order as to costs.
Petitions dismissed.