Nevilee P. Mehta v. Dolly Mehta — 1974 DIGILAW 353 (MAD)

Judgement ORDER:- Suit is for issue of letters of administration. The plaintiff herein filed O. P. No. 173 of 1972 for the issue of Letters of Administration in regard to the estate of his father Pheroze Mehta, who died intestate. As the son of the deceased, the plaintiff would be entitled to claim the entire estate, the assets of which would not exceed in the aggregate the sum of Rs. 88,581.06 and the net amount of the assets after deducting all items allowable under law would be Rs. 76,981.06. Undertaking to duly administer the property and credits of the said Pheroze Mehta, the prayer for Letters of Administration was made. 2. The wife of the said Pheroze Mehta entered caveat, whereupon the said original petition was converted into a Testamentary Original Suit. In the written statement she contends that the late Pheroze Mehta died leaving behind not only the plaintiff, his son, but also the defendant, his widow, who was lawfully married to him at New Delhi on 16th April 1963. They lived as husband and wife to the knowledge of the plaintiff, who was well aware of the said marriage and treated the defendant as his step-mother. It is therefore contended that the plaintiff could not repudiate the status of the defendant and was estopped from doing so. The defendant submits that the plaintiff has wilfully suppressed many facts in a desperate attempt to walk away with the entire estate left by her late husband, that her marriage with her late husband is a valid one and that as a widow she is entitled to claim his assets, along with the step-son, the plaintiff. The defendant also submits that the plaintiff who is a third party to the marriage cannot pray for the nullity of the marriage in these testamentary proceedings. 3. The plaintiff filed a reply statement to the effect that the marriage of the defendant with his deceased father on 16th April 1963 was unlawful, since the defendant's marriage with her former husband one Mr. Concessio was dissolved by this Court in O. M. S. No. 13 of 1961 by a decree absolute on 1st May 1963. The marriage of the defendant with his deceased father having taken place on 16th April 1963 before her former marriage was dissolved, it would be null and void. 4. On these pleadings, the following issues were set for trial. 1. The marriage of the defendant with his deceased father having taken place on 16th April 1963 before her former marriage was dissolved, it would be null and void. 4. On these pleadings, the following issues were set for trial. 1. Can the validity of marriage between the deceased Pheroze Mehta and the defendant be questioned by plaintiff in this suit? 2. Is the marriage between the defendant and the deceased Pheroze Mehta invalid? 3. Is the plaintiff estopped from questioning the marriage? 4. Is the defendant a heir to the estate of the deceased Pheroze Mehta? If so, what is her share? 5. To what reliefs are the parties entitled to? 5. No oral evidence has been let in and the parties were content with marking of documents. On the side of the plaintiff, Exs. P-1 and P-2 were marked, while on the side of the defendant, Exs. D-1 to D-10 were marked. 6. Issues 1 to 3 : These issues may be clubbed together for the sake of convenience. It is contended for the plaintiff that he alone is entitled to the Letters of Administration to the exclusion of the defendant, since the former marriage of the defendant with Mr. Concessio was dissolved in O. M. S. No. 13 of 1961 by a decree nisi dated 18-10-1962 (Vide Ex. P-1) and the decree absolute was passed on 1st May 1963 (Vide Ex. P-2). Under law, therefore, the marriage of the defendant with Pheroze Mehta, having taken place on 16-4-1963, the period of wait would be six months and in so far as the marriage of the defendant with Pheroze Mehta had taken place even before the decree absolute, it was null and void. In this connection Mr. S. Sampath Kumar, the learned counsel for the plaintiff, relies on the decision in Sunanda v. Venkata Subba Rao, (1956) 2 Andh WR 853 : (AIR 1957 Andh Pra 424) as to what is the effect of a decree nisi. In that case, it has been held that a decree nisi is only a conditional decree and it does not change the status of the parties and that the parties continue to be husband and wife till a decree absolute is made. 7. In that case, it has been held that a decree nisi is only a conditional decree and it does not change the status of the parties and that the parties continue to be husband and wife till a decree absolute is made. 7. My attention is also drawn to Section 4 (a) of the Special Marriage Act, 1954, which states : "Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely : (a) neither party has a spouse living." If, therefore, the decree nisi does not change the status of the parties and they continue to be husband and wife, Section 4 (a) would make the marriage of the defendant with Pheroze Mehta invalid. Section 24 (1) (i) of the same Act also gives power to the Court to declare such a marriage as null and void. That section says : "Any marriage solemnized under this Act shall be null and void and may be so declared by a decree of nullity if (i) any of the conditions specified in clauses (a), (b), (c) and (d) of Section 4 has not been fulfilled;" In view of these provisions, the marriage of the defendant with Pheroze Mehta must be declared as null and void and she will not have the status of a legally wedded wife, in which event, the plaintiff alone will be the sole heir. 8. It is also the contention of the learned counsel for the plaintiff that in view of Section 295 of the Indian Succession Act, where the matter becomes contentious, it partakes the character of a regular suit and that the question about the validity of the marriage between the defendant and Pheroze Mehta could be decided. 9. In meeting these contentions, Mr. G.K. Damodar Rao, the learned counsel for the defendant, states that the right to question the validity of the marriage and to ask for a declaration of nullity of the marriage is available only to the spouses to the marriage. 9. In meeting these contentions, Mr. G.K. Damodar Rao, the learned counsel for the defendant, states that the right to question the validity of the marriage and to ask for a declaration of nullity of the marriage is available only to the spouses to the marriage. He draws my attention to the decision in Gowri Ammal v. Thulasi Ammal, AIR 1962 Mad 510 : (75 Mad LW 559), wherein Ramakrishnan, J., construing Section 11 of the Hindu Marriage Act, 1955, held : "It is well known that a decree for nullity of marriage is a special provision found in legislation relating to matrimonial causes. The Hindu Marriage Act provides for such a decree being obtained by a proceeding under the Act. Thus, for a decree of nullity under Section 11, a petition has to be presented by either party to the marriage before the court having jurisdiction under the Act. For obtaining a decree of nullity under Section 12 of the Act, similarly a petition has to be presented by one of the spouses." I may state, that while construing Section 11, the learned Judge also went into the question whether after the death of one of the spouses, it would be open to the other spouse to seek the aid of the matrimonial court for obtaining the relief under Section 11 and the learned Judge held that it was not possible. However, I find in the decision in Thulasi Ammal v. Gowri Ammal, (1964) 1 Mad LJ 228:76 Mad LW 505 : ( AIR 1964 Mad 118 ) a Division Bench of this Court doubted the correctness of the view taken by Ramakrishnan, J., and observed as follows:- "With respect, we may observe that this question did not arise for consideration before the learned Judge. Since the decree of nullity appears, in our opinion, to be a declaration of status of a person, we are unable to see why the death of one of the spouses should put an end to the right of the other surviving spouse to seek for such a declaration. No authority in support of either point of view has been placed before us except an observation in Mulla's Commentary, and even that is with regard to voidable marriages. No authority in support of either point of view has been placed before us except an observation in Mulla's Commentary, and even that is with regard to voidable marriages. We would, therefore, prefer not to express any opinion upon this question." The next decision that is referred to is Lakshmi v. Ramaswami, ILR (1959) Mad 634 : 72 Mad LW 349 : ( AIR 1960 Mad 6 ) wherein Panchapakesa Ayyar, J. construing Section 11 and the phrase 'either party thereto', has held that it can only mean the actual parties to the marriage, which is sought to be declared void or illegal, and that the relief under the said section could not be availed of either by the first wife or by any other person. However, the learned Judge has further held that the mere fact that the first wife will not be entitled to file an application under Section 11 will not show that she is left remediless and that she will certainly have the ordinary right to file a suit to have the second marriage declared void and illegal. The views expressed in the above two cases have also been taken by Ramanujam, J., in Ramayammal v. Muthammal, (1974) 2 Mad LJ 34 : 87 Mad LW 407 : ( AIR 1974 Mad 321 ). 10. I need not dwell at length as far as this question is concerned because this is not a case in which the plaintiff is seeking to obtain a nullity of the marriage. With great respect, I may state that the construction placed on Section 11, namely, that the remedy before the matrimonial court would be available only to either of the spouses seems to be correct. 11. However, relying on a later decision in Paramasami v. Sornathammal, AIR 1969 Mad 124 : (81 Mad LW 460) Mr. G.K. Damodar Rao strongly contends that, before the plaintiff can obtain Letters of Administration, he must obtain a decree of nullity of the marriage by filing a suit and that only armed with that decree, he can defeat the claims of the defendant. In my view, this question deserves careful consideration. In this connection, two passages occurring in the judgment cited above are relevant and they are as follows : "There is no doubt that under English Law a marriage such as the one under consideration would be held to be null and void. In my view, this question deserves careful consideration. In this connection, two passages occurring in the judgment cited above are relevant and they are as follows : "There is no doubt that under English Law a marriage such as the one under consideration would be held to be null and void. It does not seem to be correct to distinguish between void and voidable marriage in this connection. Under the ordinary law of contract, if the contract is void, it could be so treated and any other remedy sought without having to set aside that contract. But in respect of marriages even when the marriage is null and void, it cannot be so held at the instance of third parties; a declaration of nullity can be asked for only by either party to the marriage and in any case after the death of one of the parties nobody can question the validity of the marriage. Nor can any relief be asked for on the basis that the marriage does not subsist. So resort to a Court is necessary to declare a marriage null and void and no relief can be claimed without asking for such a declaration...…" 12. I have already said that a distinction between a void contract and voidable contract would not be applicable to a case of marriage and even in a case where the marriage is a nullity, it would be necessary for the party complaining nullity of the marriage to get a declaration of nullity from court. It is clear on a reading of Section 387 of the Indian Succession Act that the testamentary proceedings are summary in nature. Though it is not necessary for me to refer to any authority about its summary character, I would only refer to the decision in K.V.R. Narasimha Rao v. K. Vimalavati, (1967) 2 Andh WR 199, wherein Jaganmohan Reddy, C. J. as he then was, has stated that succession proceedings are summary proceedings and any decision therein in respect of the rights do not preclude the parties to litigate in a regular suit. 13. 13. The question that arises for my determination is, whether it is necessary for the plaintiff to obtain a declaration of nullity of the marriage before he could succeed and whether this court sitting on the testamentary side cannot have jurisdiction to decide whether the wife, the defendant, is also a legal heir, in the absence of such a declaration. In other words, whatever may be said of the other cases, on the admitted facts in this case, the question is, whether I cannot decide the validity of the marriage for the limited purpose of deciding as to who is the heir of late Pheroze Mehta. In Paramasami v. Sornathammal, AIR 1969 Mad 124 : (81 Mad LW 460) it is laid down that "resort to a court is necessary to declare a marriage null and void". Again, it is observed that "even in a case where the marriage is a nullity, it would be necessary for the party complaining nullity of the marriage to get a declaration of nullity from court." These are the two passages on which, as I stated above, Mr. G.K. Damodar Rao relies on strongly. But, I do not think that as an axiomatic position, it could be said that in every case the moment a party sets up the nullity of marriage, or illegitimacy of the children, the testamentary court must direct the party to the ordinary civil court to obtain the necessary declaration. Such a procedure would be opposed to both public policy and expediency that are required from the court sitting on the testamentary side. It should and must have jurisdiction to decide the limited question of nullity of marriage on which decision alone the ultimate result depends. This would be more so in view of Section 387 of the Indian Succession Act which states that the proceedings are summary in character. If later on the party obtains a declaration of nullity, certainly the necessary result will flow from it and it may have a bearing on the testamentary proceedings also. 14. In the instant case, from the admitted facts, it is clear that the marriage between the defendant and Pheroze Mehta took place on 16-4-1963 long before the period of wait and even before the decree in O. M. S. No. 13 of 1961 was made absolute on 1-5-1963. 14. In the instant case, from the admitted facts, it is clear that the marriage between the defendant and Pheroze Mehta took place on 16-4-1963 long before the period of wait and even before the decree in O. M. S. No. 13 of 1961 was made absolute on 1-5-1963. Undoubtedly such a marriage is invalid in the absence of proof to the contrary. Till the decree nisi is made absolute, the defendant continued to be the wife of Mr. Concessio and therefore the reliance placed on the decision in Sunanda v. Venkata Subba Rao, (1956) 2 Andh WR 853 : (AIR 1957 Andh Pra 424) is correct. That being the position, the subsequent marriage is hit by Section 4 (a) of the Special Marriage Act and the defendant cannot have the status of the wife of the deceased Pheroze Mehta. I may make it very clear that this finding is only for the purpose of these testamentary proceedings. Undoubtedly, it will be open to the defendant to file a separate suit and seek a declaration that she is the widow of Pheroze Mehta and her marriage with Pheroze Mehta is a valid one. 15. I do not see why the plaintiff should be held to be estopped from questioning the marriage because he is not seeking a declaration of nullity before a matrimonial court, in which case alone that right would be available only to either of the spouses to the marriage which is sought to be declared null and void. I therefore answer issues 1 to 3 in favour of the plaintiff. 16. Issue 4 : In view of the above finding, I hold that the defendant is not a heir to the estate of the deceased Pheroze Mehta and therefore the question as to what is her share need not be decided. 17. Issue 5 : In the result, the plaintiff is entitled to succeed. Issue Letters of Administration and the plaintiff will furnish the necessary security in the form of a Bank guarantee. 18. It is rather unfortunate that the rigours of law should deny the defendant the status of a wife. Having regard to that fact, I direct the parties to bear their respective costs.