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1997 DIGILAW 476 (MP)

K. Shyamlal v. K. Sugna Devi

1997-08-08

RAJEEV GUPTA, S.K.DUBEY

body1997
ORDER Dubey, J. -- 1. This is an appeal under section 384 of the Indian Succession Act, 1925 (for short the ‘Act') against the order dated 18.12.96, passed in Succession Case No.. 53/94 by the Second Additional District Judge, Durg. 2. The facts which are not disputed in this appeal are thus : One K. Satyanarayan was working as technician in the Bhitai Steel Plant with Personal Number 12387 and Token No. 17084. He died intestate on 22.2.92 at Bhilai. Therefore, wife of the deceased i.e. the respondent No.1 made an application under section 372 of the Act, for grant of succession certificate in respect of the debts and securities due to the deceased as detailed below :- (i) Contributory Provident Fund Amount Rs. 1,24,230-00 (ii) Service amount Rs. 10,000-00 (iii) Gratuity Rs. 55,932-00 (iv) Fixed Deposit A/c No 208330, Sub-Post Office, H.S.G. IIIrd Rs. 10,000-00 (v) Post Office, MPM (CTD) Espath Bhawan SBM: CTD A/c No. 257568 Rs. 2,160-00 CTD A/c No. 250478 Rs. 2,160-00 (vi) Life cover amount Rs. 26,000-00 (vii) Share capital B.B.M. Cooperative Canteen Account No. 197 Rs. 1,000-00 Rs. 2,31,482-00 3. The appellant objected to the grant of certificate and contended that she was married to the deceased according to the Hindu rites, on 18.2.91, at Raipur and was living with him as his legally wedded wife till his death, therefore, she is entitled to grant of certificate and not the respondent No.1, who was living separately in Andhra Pradesh since 1975. 4. Undisputably the respondent No.1 was married to the deceased in the year 1968 in Karim Nagar, Andhra Pradesh. Thereafter she stayed with her husband at Bhilai till 1975. Because of the differences between the husband and wife, the deceased started behaving cruelly with the respondent No.1. Hence, she came to her matrimonial home in the year 1975, where she instituted the proceedings under section 125, of the Code of Criminal Procedure. Judicial Magistrate First Class, Karim Nagar, vide order dated 5.2.74, ordered the deceased to pay Rs. 100/- per month as maintenance. Certified copy of the order is EX.P/1A. The deceased filed Civil Suit No. 30-A/78, for decree of divorce, in the Court of First Additional District Judge, Durg, but the same was dismissed for non-appearance on 20.6.79. Photostate copy of the order is Ex.P/2A. 100/- per month as maintenance. Certified copy of the order is EX.P/1A. The deceased filed Civil Suit No. 30-A/78, for decree of divorce, in the Court of First Additional District Judge, Durg, but the same was dismissed for non-appearance on 20.6.79. Photostate copy of the order is Ex.P/2A. Thereafter, without taking divorce from the respondent No.1, the deceased married to the appellant in the year 1991. 5. The appellant also applied for grant of succession certificate in Succession Case No. 15/93 in the Court of Civil Judge, Class-I, Durg which was dismissed because of her non-appearance on 6.9.94. 6. The Succession Court after appreciating the evidence on the rival claims of the appellant and the respondent No. 1 granted the succession certificate to respondent No. 1 for the securities left by the deceased holding• that the appellant's marriage with the deceased was void under section 11 of the Hindu Marriage Act, 1955, as the second marriage was solemnized in contravention of clause (I) of section 5, of the Hindu Marriage Act. . 7. Shri H.B. Agrawal, the learned counsel for the appellant, contended that unless there is a declaration u/s 11 of the Hindu Marriage Act, the marriage solemnized cannot be considered as void, therefore, the appellant was entitled to gran of succession certificate, if not full for half of the amount as she being the widow, was the class1 heir as classified in Schedule of section 8 of the Hindu Succession Act, 1956, and as such was entitled to succeed according to provisions of the said Act. It was also submitted that the Succession Court committed an error in granting the succession certificate, when too intricate questions of law and fact were involved in the case, therefore, under sub-section (3) of section 373 of the Act, the Court ought to have left the parties to seek a declaration of their right from a competent Court. Counsel cited Maharani Kusum Kumari and anr. v. Smt. Kusumkumari Jadeja and anr. [(1991)] SCC 562] Pavitri Devi and anr. v. Darbari Singh and ors. [ (1993) 4 SCC 392 ] and Putrobai and ors. v. Lalchand and ors. [1993 (1) Vidhi Bhasvar 37 = 1994 MPLJ 280 ]. 8. First, we take up the contention based on sub-section (3) of section 373 of the Act. To appreciate the contention, we reproduce section 373 :-- "373. v. Darbari Singh and ors. [ (1993) 4 SCC 392 ] and Putrobai and ors. v. Lalchand and ors. [1993 (1) Vidhi Bhasvar 37 = 1994 MPLJ 280 ]. 8. First, we take up the contention based on sub-section (3) of section 373 of the Act. To appreciate the contention, we reproduce section 373 :-- "373. Procedure on application – (1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing (a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and (b) to be pasted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate. . (2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him. (3) If the Judge cannot decide the right to the certificate without determining question of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. (4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicant are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respect of the applicants.". 9. For grant of succession certificate on an application section 373 provides the procedure. 9. For grant of succession certificate on an application section 373 provides the procedure. The enquiry contemplated in this section is to be summary, as would be evident from the bare reading of the section sub-section (1) of section 373 provides that if the District Judge is satisfied that there is ground for entertaining the application for grant of succession certificate, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing. After notice the Court shall proceed to decide in a summary manner the right to the certificate. Sub-section (2); of section 373, provides that when the Judge decides the right to such certificate it shall make an order for grant of certificate to the person who is so entitled. Sub-section (3) of section 373 provides that if the Judge cannot decide the right to the certificate without determining the question of law or fact which seem to it to be too intricate and difficult for determination in summary proceedings, it may nevertheless grant the certificate to the applicant if he appears to be the person having prima facie the best title thereto. Sub-section (4) of section 373 speaks that when there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of deceased the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. Therefore, it is clear that sub-section (3) do not bar grant of certificate to an applicant where too intricate questions of law or fact are involved. On the other hand, if the application is entertained the Court has to confine itself to issue of the right to the certificate in which the Court has to decide the question of title to the certificate asked for and to grant the same to the applicant, if he appears to be the person "having prima facie the title thereto". The Court need not to determine too intricate questions of law or fact, nor the Court can direct the parties to seek declaration in respect of their rights. The Court need not to determine too intricate questions of law or fact, nor the Court can direct the parties to seek declaration in respect of their rights. On the other hand sub-section (3) of section 373 is to be read, construed and enforced in the light that succession is the rule which is to be promoted and not to be defeated. See : Krishna Pyari Bai Dixit (Smt.) v. Goving Mishra (1992) JLJ 624 = AIR 1992 MP 145 Ammini Ammal v. Lakshmi and others (AIR 1957 Kerala 90), Firm of Patnam Lakshminarayan Chetti v. Grandhe Seshasma and others ( AIR 1942 Mad. 709 ) and Sukumar Deb Roy and others v. Parbati Bala (AIR 1941 Cal. 663). 10. The contention that unless the marriage is declared void, the Succession Court was obliged to grant certificate to the appellant has no merit. On the facts, stated above, the marriage was in contravention of section 5(1) of the Hindu Marriage Act, and it was a void marriage u/s 11 of the Hindu Marriage Act. It is well settled that the marriages covered by section 11 are void ipso jure i.e. 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 declaration to be made on the presentation of the petition by either party there to, against the other party be so declared by a decree of nullity, if it contravenes anyone of the conditions specified in clause (i), (iv) and (v) of section 5. Such declaration was not necessary in this case, as the declaration is not sought by either party to such marriage, but the marriage was challenged as void by the first wife, as a bigamous marriage which was void from its inception. See : Mohd. lkram Hussain v. State of U.P. ( AIR 1964 SC 1625 ) and Smt. Yumuna Bai v. Anant Rao (1988 SC 644). 11. Recently, this Court in Smt. Savitri Devi v. Smt. Manorama Bai and ors. [M.A. No. 685 of 1996; decided on 28.4.97], arising out of an appeal against the• order of grant of succession certificate following the decisions of the Supreme Court in Mohd. 11. Recently, this Court in Smt. Savitri Devi v. Smt. Manorama Bai and ors. [M.A. No. 685 of 1996; decided on 28.4.97], arising out of an appeal against the• order of grant of succession certificate following the decisions of the Supreme Court in Mohd. lkram Hussain and Smt. Yamuna Bai (supra), has taken the view that if the marriage is in contravention of clause (i) of section 5 of the Hindu Marriage Act, was covered by section 11 of the Hindu Marriage Act, was void from the very inception and had to be ignored as not existing in law, hence held that the second wife was not entitled to succession certificate in her own right. The decision relied in Maharani Kusumkumari and anr. v. Smt. Kusumkumari Jadeja and anr. (supra) relates to a child born from a wife whose marriage was void or declared to be so wherein it was declared that by the amendment in section 11, the legitimacy of the child has been protected and widened. It does not narrow down the field in application of section 11, about the marital status of the parties. The effort of granting a decree of nullity is to discover for the flaw of the marriage at the time of its performance and accordingly grant of a decree declaring it to be a void, but it has no effect on the legitimacy of the children of void and void able marriage. The intention of the legislature in enacting section 16 of the Hindu Marriage Act was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955. 12. The other decisions relied have no application to the facts of this case. In none of the decisions, it has been held that second wife whose marriage is in contravention of clause (i) of section 5 of the Hindu Marriage Act, would be entitled to grant of succession certificate. 13. As a result of aforesaid discussion the appeal is devoid of any substance and is dismissed with no order as to costs.