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2000 DIGILAW 788 (PNJ)

Sumitar Kaur v. General Public

2000-07-25

M.L.SINGHAL

body2000
Judgment M.L.Singhal, J. 1. This is civil revision filed by Sumi-tar Kaur against the order of Additional District Judge, Kaithal dated 4.6.1999 setting aside on appeal of Amar Kaur that of Civil Judge Sr. Division, Kaithal dated 26.10.1998 whereby he (Civil Judge Sr. Division, Kaithal) had ordered that grant of succession certificate to Amar Kaur and Sumitar Kaur respecting the estate of Waryam Singh in equal shares and then granting succession certificate to Amar Kaur alone to the exclusion of Sumitar Kaur respecting the estate of Wary am Singh. Facts: 2. Smt. Amar Kaur claiming herself to be the widow and the only legal heir of deceased Waryam Singh filed application under Section 372 of the Indian Succession Act for the grant of succession certificate to her in February, 1986 in respect of the estate of late Waryam Singh as mentioned in schedule 1 to the application. It was alleged in the application that Waryam Singh died on 13.8.1985 leaving an amount of Rs. 59,012.32 in his account as detailed and described in schedule-1. She being the widow and the only legal hire of Waryam Singh, is entitled to inherit him in view of the provisions of Hindu Succession Act and as such she is entitled to the grant of succession certificate in respect of that amount together with interest up to date. 3. Notice was issued to the general public but none turned up to contest this application. Smt. Sumitar Kaur respondent No. 2 appeared and contested the grant of succession certificate exclusively to Smt. Amar Kaur. She prayed that succession certificates be granted to her and Amar Kaur in equal shares as she is also the widow of Waryam Singh. There was no issue from Amar Kaur. Waryam Singh married her (Sumitar Kaur) with the consent of Amar Kaur about 16 years ago and since then she had been putting up with Waryam Singh as his wife and as such she is entitled to share the said amount with Amar Kaur in equal shares. 4. Amar Kaur put in rejoinder to the objection petition filed by Sumitar Kaur urging that she alone in the widow of Waryam Singh. It was denied that Sumitar Kaur ever married Waryam Singh or she is also the widow of Waryam Singh. 5. On the pleadings of the parties, following issues were framed: 1. 4. Amar Kaur put in rejoinder to the objection petition filed by Sumitar Kaur urging that she alone in the widow of Waryam Singh. It was denied that Sumitar Kaur ever married Waryam Singh or she is also the widow of Waryam Singh. 5. On the pleadings of the parties, following issues were framed: 1. Whether the petitioner is entitled to the succession certificate with regard to the estate left behind by deceased Waryam Singh ? OPP. 2. Whether objector is also entitled to inherit the estate left behind by said deceased Waryam Singh as alleged ? OP (respondent No. 2), 3. Relief. 6. Vide order dated 26.10.1998, Civil Judge (Sr. Division), Kaithal ordered the grant of succession certificate in favour of Amar Kaur and Sumitar Kaur in respect of the estate of late Waryam Singh in equal shares in view of his findings that having married Waryam Singh, Sumitar Kaur also acquired the status of the wife of Waryam Singh. 7. Not satisfied with the order of Civil Judge (Sr. Divisional), Kaithal dated 26.10.1998, Amar Kaur went in appeal. Vide order dated 4.6.1999, Additional District Judge, Kaithal allowed her appeal and ordered the grant of succession certificate in favour of Amar Kaur alone to the exclusion of every body else including Sumitar Kaur in respect of the estate of Waryam Singh as detailed in schedule 1 of the application in view of his finding that Amar Kaur alone was his wife. 8. Not satisfied with the order of Additional District Judge, Kaithal, Sumitar Kaur has come up in revision to this Court. 9. I have heard learned counsel for the parties and have gone through the record. 10. There is no dispute that Amar Kaur was the wife of late Waryam Singh as the factum of her being wife of Waryam Singh has not been contested by any one. Su-milar Kaur has stated that she is also the wife of Waryam Singh having married him and her marriage with Waryam Singh was quite legal and valid. 11. In her written statement filed on 30.4.1987 Sumitar Kaur had stated that as there was no issue from Amar Kaur, Waryam Singh married her (Sumitar Kaur) observing all the rites and ceremonies prevalent in their family with the consent of Amar Kaur about 16 years ago. Since then she had been putting up with Waryam Singh as his legally wedded wife. Since then she had been putting up with Waryam Singh as his legally wedded wife. If that was so, she married Waryam Singh in the year, 1971. It is true that Sumitar Kaur is figuring as the wife of Waryam Singh in the voter lists namely Ex. R-3, R-4, R-5 and R-6. Voter list Ex. R-3 was prepared in the year, 1988 in which she is recorded as the wife of Waryam Singh. In voters list Ex. R-4 she is recorded as voter as the wife of Waryam Singh alongwith Waryam Singh son of Ishar Singh. Similar are the entries in the voters lists prepared for the years 1984 and 1993 Ex. R-5 and R-6 respectively. In the ration card Ex. R-7 she figures as the wife of Waryam Singh alongwith Amar Kaur, Waryam Singh etc. 12. It cannot be said that Sumitar Kaur acquired the status of legally wedded wife of Waryam Singh from (he mere fact that she was recorded as the wife of Waryam Singh in the voters lists as well as in ration card. Similarly, the factum of compromise entered into between Sumitar Kaur and Amar Kaur in a suit for declaration and permanent injunction will not clothe Sumitar Kaur with the status of wife of Waryam Singh. The status of wife could be conferred on Sumitar Kaur if she is found to be legally wedded wife. On her own she has stated that she married him in the year, 1971. In the year, 1971 Hindu Marriage Act, 1955 was very much in force. Hindu Marriage Act, 1955 has made monogamy the rule and abolished polygamy. After the coming in force of the Hindu Marriage Act, 1955 during the subsistence of his previous marriage, a Hindu cannot take another wife. It would bear repetition that on her showing Sumitar Kaur married Waryam Singh in 1971 during the subsistence of his marriage with Amar Kaur with her (Amar Kaur) consent as Amar Kaur could not bear any child for Waryam Singh. She has nowhere stated that she married Waryam Singh after the dissolution of his marriage with Amar Kaur. It would bear repetition that on her showing Sumitar Kaur married Waryam Singh in 1971 during the subsistence of his marriage with Amar Kaur with her (Amar Kaur) consent as Amar Kaur could not bear any child for Waryam Singh. She has nowhere stated that she married Waryam Singh after the dissolution of his marriage with Amar Kaur. It was not necessary that the marriage of Amar Kaur should have been dissolved by a decree of divorce under the provisions of Hindu Marriage Act, if Waryam Singh were to take Sumitar Kaur as his wife, he could take Sumitar Kaur as his wife if his marriage with Amar Kaur had been dissolved under custom and there was proof of custom prevailing among them, permitting dissolution of marriage. 13. Section 5 of the Hindu Marriage Act, lays down as follows: "5. Conditions for a Hindu Marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage; (ii) to (v) xxx xxx xxx." Section 17 of the Hindu Marriage Act lays down as follows: "17. Punishment of bigamy - Any marriage between two Hindus solemnized after the commencement of this Act is void if at the time of such marriage either party had a husband or wife living; and the provisions of Section 494 and 495 of the Indian Penal Code, 1860 (45 of 1860), shall apply accordingly." It is thus clear that taking of another wife by a Hindu during the subsistence of his marriage with his previous wife is void. Admission of Amar Kaur in compromise in a suit for declaration and permanent injunction filed by Sumitar Kaur against her that she was the wife of Waryam Singh will not confer upon Sumitar Kaur the status of a wife when it has come on record that Sumitar Kaur married Waryam Singh in the year, 1971 i.e. much after the coming into force of the Hindu Marriage Act. Marriage is a status recognized by law. Staying of man with a woman and treatment by him of her that she is his wife is not sufficient if she is not clothed with the status of wife in the eye of law. Marriage is a status recognized by law. Staying of man with a woman and treatment by him of her that she is his wife is not sufficient if she is not clothed with the status of wife in the eye of law. There can be no estoppel against Amar Kaur by judgment passed in that suit based on compromise, as there can be no estoppel against the provision of statute (in this case Hindu Marriage Act). 14 The view that compromise decree stops litigation between parties just as much as a judgment resulting from a decision of Court at the end of long drawn out fight and a compromise decree creates an estoppel by judgment taken by the Honble Supreme Court in Bayram Pestnjijariwal v. Union Bank of India and others, 1992(1) Revenue Law Reporter 403 is not applicable to the facts of this case. 15. In my opinion, the conclusion reached by the learned Additional District Judge, Kaithal that Amar Kaur alone is the widow of Waryam Singh, entitled to succession certificate in respect of his estate to the exclusion of all others including Sumitar Kaur is perfectly correct and does not warrant any interference. Revision fails and is dismissed.