Delhi District Court
Smt. Sushila Devi @ Sheela vs The State & Others on 17 May, 2010
IN THE COURT OF SHRI SANJEEV KUMAR SINGH : ADMINISTRATIVE CIVIL
JUDGE (CENTRAL) : DELHI
Petition No.: 696/2005
Date of Institution : 13.10.2005
Date of order when reserved : 10.05.2010
Date of order when announced: 17.05.2010
In the matter of:-
1 Smt. Sushila Devi @ Sheela,
widow of Late Sh. Raj Parsad,
2 Baby Sohan,
Through her natural guardian petitioner No. 1,
Both residence of Jhuggi No. 191, RPF Line,
Daya Basti,
Delhi-110035.
....Petitioners.
Versus
The State & Others.
.....Respondents
J U D G M E N T:
This is a succession petition filed by the petitioners namely Smt. Sushila Devi @ Sheela and Baby Sohan for grant of succession certificate in their favour qua the debts and securities of deceased Sh. Raj Prasad, who died at Delhi on 11.01.2001.
2 After filing of this petition, notice of filing of this petition was given to the general public by way of publication in the newspaper 'VEER ARJUN' dated 05.01.2007, but none has appeared from general public to oppose or contest the present petition.
3. The deceased Sh. Raj Prasad was the husband of the Petitioner No. 1 Smt. Sushila Devi @ Sheela and father of petitioner No. 2 Baby Sohan. He expired on 11.01.2001 at Delhi and his death certificate is Ex. PW-1/1. The mother of the deceased predeceased him. Petitioner has Petition No. 696/05 Page 1/2 stated on oath that the first wife of the deceased namely Chanderwati Devi has been impleaded in this petition and she could not be served by way of ordinary process as was served by way of publication in the newspaper 'VEER ARJUN' dated 30.11.2009 but none has appeared on her behalf. She has further stated on oath that her husband told her during his life time that his first wife had died issueless. The deceased made no WILL during his life time. The deceased was working with MTNL. A reply has been filed by the MTNL furnishing the outstanding dues of the deceased, the same is Ex. P-X. Apart from the service dues, the deceased has also left behind two LIC Policies bearing No. 110687602 and 110622719, the copies of the same are exhibited as Ex.PW2/1 and Ex. PW2/2 in the statement of the LIC official (PW2). The deceased was ordinarily a resident of Delhi.
4 Legal proposition in this case is that petitioner No. 1 is claiming Succession Certificate as second wife of the deceased and petitioner No. 2 namely Baby Sohan, who is stated to be the daughter of the deceased Raj Prasad. There is no other class-I legal heir of the deceased except both the petitioners namely Smt. Sushila Devi @ Sheela and Baby Sohan. Petitioner has stated on oath that her deceased husband was earlier married with Smt. Chanderwati and she has been impleaded as respondent in this petition. Petitioner further stated on oath that during the life time of her husband, he has told her that she had also expired. In support of her contention, petitioner has not filed her death certificate on record. Later on, first wife of the deceased namely Chanderwati Devi was served by way of publication in the newspaper 'VEER ARJUN' dated 30.11.2009. Respondent Mrs. Chandra Wati Devi has choosen not to appear before the Court. Hence, the share of respondent Chandra Wati be kept until she appears to claime her share or after her death, her LRs claim her share.
Petition No. 696/05 Page 2/25 Admittedly, deceased was earlier married with one Chanderwati and she has also been impleaded in this petition. There is no proof of death of first wife of the deceased.
6 Section 5 r/w 11 of Hindu Marriage Act provides that second marriage of a person when first spouse is living is void. Even if such a second marriage is performed with the consent of earlier spouse still the second marriage would be void. Admittedly, in this case, petitioner No. 1 is the second wife of the deceased. Therefore, in view of this, provisions of Hindu Marriage Act marriage between the petitioner No. 1 and the deceased during life time of first wife of deceased is void. Therefore, there is no question of the petitioner No. 1 succeeding to the estate of the deceased.
7 However a question still remains to be answered is whether the child namely Baby Sohan of deceased and the petitioner No. 1 out of this void marriage is entitled to any share or not? What is the right of petitioner No. 2 namely Baby Sohan.
8 Petitioner No. 1 has filed ration card Ex. PW1/2 in which the name of Baby Sohan (Petitioner No. 2) has been mentioned as daughter of the deceased. Therefore, this document prima facie show that petitioner No. 2 Baby Sohan was born to the deceased through petitioner No. 1. However, since marriage between petitioner No. 1 and deceased was illegal and void therefore petitioner No. 2 can at best be termed as illegitimate children. What is the right of illegitimate children is clearly defined in Sec. 16 of Hindu Marriage Act.
9 Sec. 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 ligitimate if the Petition No. 696/05 Page 3/2 marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage 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 to 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 notwithstanding 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 Section 12, any rights in or to property of any person, 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 legitimate child of his parents."
10 This legal position cannot be described better than described by Hon'ble Supreme Court in the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and olthers, Appellants v. K. Devi and others, Respondents AIR 1996 SUPREME COURT 1963=1996 AIR SCW 2337 wherein it was held, (in para 76) The words 'notwithstanding that a marriage is null and void under Section II' employed in Section 16 (1) indicate undoubtedly the following :-
Petition No. 696/05 Page 4/2(a) Section 16 (1) stands delinked from Section 11.
(b) Provisions of Section 16 (1) which intended to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.
© Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended.
(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.
(e) Section 16(1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferement of legitimacy.
Section 16, in its present form, is, therefore, not ultra vires the Constitution /' (in para 77 it was held).
'Section 16 contains a legal fiction. It is by a rule of fictio juris that the Legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.' (in para 79 it was held).
Petition No. 696/05 Page 5/2In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purupses, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other rleation on the basis of this rule, which in its operation, is limited to the properties of the parents/"
11 Section 8 & 9 of Hindu Succession Act, provides that children of deceased (which would include illegitimate children) are Class-I legal heir and they are entitled to succession to the exclusion of others.
12 As discussed above, the petitioner No. 1 admits that she is the second wife of deceased and her marriage with the deceased took place when first wife of deceased namely Chanderwati was alive. I have already held above that such a second marriage is void in the eyes of law. Therefore, there is no question of the petitioner No.1 succeeding to the estate of the deceased. Petitioner No. 2 namely Baby Sohan is entitled to the estate of the deceased as mentioned in the petition.
13 Therefore, in view of the above, I am of the considered opinion that there is no impediment for grant of Succession Certificate in favour of Petitioner No. 2 Baby Sohan to the extent of half share qua the debts and securities of the deceased Sh. Raj Prasad. I accordingly direct that a Succession Certificate be issued in favour of Petitioner No. 2 Baby Sohan to the extent of half share qua the debts and securities of the deceased Sh. Raj Prasad, in terms of Ex P-X, Ex.PW2/1 and Ex.PW2/2, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days. Since, petitioner No. 2 is minor, hence her respective share be kept in term deposit till she attains the age of majority.
Petition No. 696/05 Page 6/214 No further orders are required to be passed in the matter. File be consigned to Record Room.
Announced in the open court (SANJEEV KUMAR SINGH )
on 17.05.2010 Administrative Civil Judge (Central)
Delhi
Petition No. 696/05 Page 7/2
696/2005
17.05.2010
Pr: Ld. Counsel for the Petitioner.
Vide separate judgment announced in the open court today, Succession Certificate is ordered to be issued in favour of Petitioner No. 2 Baby Sohan to the extent of half share qua the debts and securities of the deceased Sh. Raj Singh. I accordingly direct that a Succession Certificate be issued in favour of Petitioner No. 2 Baby Sohan to the extent of half share qua the debts and securities of the deceased Sh. Raj Prasad, in terms of Ex P-X, Ex.PW2/1 and Ex.PW2/2, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days. Since, petitioner No. 2 is minor, hence her respective share be kept in term deposit till she attains the age of majority.
No further orders are required to be passed in the matters. File be consigned to Record Room.
(Sanjeev Kumar Singh) ACJ (Central)/Delhi 17.05.2010 Petition No. 696/05 Page 8/2