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2002 DIGILAW 1543 (RAJ)

Sukhdev Prasad v. Nathu Lal

2002-09-05

ARUN MADAN

body2002
JUDGMENT 1. - This appeal has been preferred by the plaintiff appellant challenging the Judgment & decree dt. 9.1.1998 passed by the learned ADJ No.2 Jaipur City, )Jaipur in Civil Suit No. 3/95 (Sukh Dev Prasad v. Nathu Lal) whereby, the suit filed by the plaintiff appellant was dismissed. 2. The facts which are relevant for deciding the appeal briefly stated are that the appellant plaintiff filed a civil suit before DJ Jaipur City Jaipur against the defendant respondent seeking the relief of partition of the suit property and permanent injunction restraining the defendant respondent from transferring, alienating, selling or mortgaging the property to anybody else pending the hearing and disposal of the suit. 3. It was pleaded by the plaintiff that he being a minor at the relevant time, through his next friend (Guardian) had filed a civil suit in the Court of Munsif Garbi, Jaipur against late Shri Ram Karan (the father of defendant Nathu Lal) and Smt. Gulli @ Gulab (the natural mother of plaintiff) seeking partition of the property against his brother. While the plaintiff appellant is said to have been borne through Smt. Gulli alias Gulab the natural mother of the plaintiff while the defendant Nathulal is said to have been born through his first wife. 4. A preliminary decree was passed on 25.7.1942, holding that the plaintiff being son of Smt.Gulli alias Gulab and Ram Narain, is entitled to have 1/4th share of the property in dispute and for the remaining 3/4th share Smt. Gulli alias Gulab and Ram Karan are jointly entitled for equal shares and accordingly the final decree was passed on 19.8.1943. The 3/4 share given to Ram Karan and Smt. Gulli alias Gulab in two equal shares (i.e. 12 Units in total), which was to be divided in 6 units towards each share of two defendants with certain common Unit was meant for all concerned for their uses, has been shown in yellow colour in the site plan which has been perused during the course of hearing and which is subject matter of resolving the dispute in the present suit. 5. It was further averred by the plaintiff appellant that Shri Ram Narain had pre-deceased his wife Smt. Gulli alias Gulab the mother of the plaintiff who too died on 28.2.1973 and the plaintiff appellant being the sole surviving successor of deceased Sint. 5. It was further averred by the plaintiff appellant that Shri Ram Narain had pre-deceased his wife Smt. Gulli alias Gulab the mother of the plaintiff who too died on 28.2.1973 and the plaintiff appellant being the sole surviving successor of deceased Sint. Gulli alias Gulab is entitled for 1/2 share of the property as delineated in the site plan as referred to herein above. Hence, the suit for partition was filed and it was further prayed that the defendant be restrained from alienating the property in dispute till the partition takes place. 6. The defendant respondent contested the suit by filing a written statement on the grounds inter-alia by admitting the facts averred in the plaint regarding filing of the suit in the year 1941 (suit No. 318/41) by the plaintiff. It was also urged in the written statement that Smt. Gulli @ Gulab got herself married in the year 1942 with one Ramnarain and started living with him at village Bhanpur and, thereafter she had nothing to do with the property in dispute and moreover, the plaintiff appellant being the illegitimate child of late Ramnarain since the marriage between the parties was void and which was contacted by Ram Narain during the subsistence of first marriage which had not been dissolved by a decree of divorce and the defendant being the legal representative (adopted son of Ram Karan) is, now the owner of the suit property after the demise of Ram Karan and hence there is no question of parting with any share of the plaintiff in the aforesaid property. It was also pleaded that the father of the defendant has been shown as the sole owner of the property in dispute. Hence, the defendant respondent prayed for dismissal of the suit. 7. I have heard learned counsel for the parties at length, examined their rival claims and contentions and so also the legal position on the subject and also perused the findings recorded by the trial Court. I am of the considered opinion that prima-facie, the findings recorded by the trial Court on various issues are erroneous and contrary not only to the law but also the evidence on the record. 8. I am of the considered opinion that prima-facie, the findings recorded by the trial Court on various issues are erroneous and contrary not only to the law but also the evidence on the record. 8. In my view, the trial Court has gravely erred in not taking into consideration the pleadings of the parties relating to the property in question in their true perspective so as to arrive at a proper conclusion after taking into consideration all aspects of the matter. In case of a property which belongs to members of HUF, since Smt. Gulli alias Gulab, the mother of the plaintiff was in fact entitled to inherit 1/4th share in the suit property on the basis of the preliminary decree which attained finality on 19.8.1943 became 1/4 +1/2 share equal to 2/3) share of the total, in the property in question became absolute even prior to the passing of the Hindu Succession Act, 1956 and had it been the position subsequent to the passing of the said Act, it would not have altered the position to her detriment and disadvantage in any manner. 9. In my view, the trial Court primarily declined to recognise the plaintiff's entitlement to 1/2 share in the inherited property of his real mother Smt. Gulli and had she been alive and consequent upon her demise, 1/2 share automatically devolved upon the plaintiff, he being the sole survivor of the deceased and if the total share of his mother is construed in true perspective in terms of the final decree dt. 19.8.1943 passed by the trial Court then after the demise of the mother the plaintiff being the member of the HUF and sole surviving legal heir of the deceased would automatically be entitled to succeed to the said half share in the suit property. The trial Court has further erred in not taking into consideration the statement of plaintiff appellant Sukhdev Prasad in examination in chief and also in cross examination wherein he firmly stated that he is only son of Smt.Gulli who got married to late Ramnarain and after her demise he was entitled to succeed to the property in question. The trial Court has further erred in not taking into consideration the statement of plaintiff appellant Sukhdev Prasad in examination in chief and also in cross examination wherein he firmly stated that he is only son of Smt.Gulli who got married to late Ramnarain and after her demise he was entitled to succeed to the property in question. Since -he respondent (defendant) being the step brother of the plaintiff, if his share is determined as 1/2 to the property then obviously the conclusion of the trial Court would have been in favour of the plaintiff by observing that the plaintiff is also and rather equally entitled to succeed to 1/2 share in the suit property irrespective of the fact that void marriage between the parties was void as that had not been dissolved by a decree of divorce, which argument of the defendant is not sustainable at all for the reason that why should a child who is innocent should suffer the consequences of a void marriage so as to defeat his rights to inheritance more particularly there being no dispute as regards his paternity. The law is well settled on the subject that void marriage between the parties would not deprive the natural born heir out of the wedlock of his/her right of inheritance to the property in suit by virtue of explanation to Section 2 of the Hindu Succession Act, 1956, which provides as under : "Explanation-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be : (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion ; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought us as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convent or re-convent to the Hindu, Buddh, Jaina or Sikh religion." 10. It may be stated that the first marriage is not dissolved by a decree of divorce and in the meanwhile the parties contract second marriage though the case of marriage would be void but that by itself would not deprive an issue to, just of said wedlock from the right of inheritance ice. 11. It may be stated that the first marriage is not dissolved by a decree of divorce and in the meanwhile the parties contract second marriage though the case of marriage would be void but that by itself would not deprive an issue to, just of said wedlock from the right of inheritance ice. 11. I am fortified in my observations in this regard from the judgment of the Apex Court in the matters of (1) G. Nirmalamma v. G. Seethapathi ( AIR 2001 AP 104 ) (2) Rameshwari Devi v. State of Bihar ( AIR 2000 SC 735 ), (3) Raghubar Singh v. Gulab Singh ( AIR 1998 SC 2401 , (4) Mukhtiar Ahmed v. Smt. Husan Bano (1996 DNJ (SC) 102) and (5) Nera Bai v. Pusia Bai (1996(1) Civil Law journal 72.) 12. In G.Nirmalamma's case (supra), the Apex Court observed, as under: "By virtue of S.16(1) of the Hindu Marriage Act, as amended in 1976, the illegitimate son can be equated with natural sons and treated as co-parceners for the properties held by the father whether the property be originally joint family property or not. The only limitation is that during the lifetime of the father, the illegitimate son of a void marriage is not entitled to seek a partition. Section 16 of the Hindu Marriage Act has conferred on an illegitimate son benefits of a legitimate son and his pre-existing rights are in no way curtailed. He becomes a member of family and has status as a son and by virtue of that he is entitled to right of survivorship". 13. In Raghubar Singh's case (supra), the Apex Court observed, as under:- "It is by force of 5.14(1) that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as sub-sec. (2) of S.14 is concerned, it applies to instruments, decrees, awards, gifts etc., which create an independent or a new title in favour of the female for the first time. It has no application in cases where the instrument/document either declares or recognises or confirms her share in the property or her "pre-existing right to maintenance" out of that property. Sub-sec. (2) of S.14 is in the nature of a proviso and has a field of its own, without interfering with the operation of S. 14(1) of the Act." 14. It has no application in cases where the instrument/document either declares or recognises or confirms her share in the property or her "pre-existing right to maintenance" out of that property. Sub-sec. (2) of S.14 is in the nature of a proviso and has a field of its own, without interfering with the operation of S. 14(1) of the Act." 14. In Rameshwari Devi (supra), the Apex Court observed as under:- "Under Section 16 of Hindu Marriage Act, children of void marriage are legitimate, under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolves firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage being void. Sons of the marriage between deceased employee and second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would he entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority. 15. In Mukhtiar Ahmed v. Smt. Husan Bano (1996 DNJ (SC) 102, the controversy which arose in appeal before the Apex Court was in the context of interpretation of provisions or Sections 11, 12 & 16 read with 5(1) of the Marriage Laws (.amendment) Act, 1976 regarding the legitimacy of a child born out of void marriage. The Apex Court held that in view of the amendment to Section 16, the child is legitimate whether or not the earlier marriage was declared null & void. The Apex Court held that in view of the amendment to Section 16, the child is legitimate whether or not the earlier marriage was declared null & void. The Apex Court further observed, as under : "Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is torn 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 valid otherwise than on a petition under the Act." 16. In Nera Bai v. Pusia Bai (1996(1) Civil LJ 721 the question which arose in appeal before the Madhya Pradesh High Court was in the proceedings arising out of the impugned judgment & decree which was challenged before the High Court in second appeal which was admitted on the following substantial question of law : "Whether under the facts and circumstances of the case the first appellate Court was justified in reversing the judgment and decree passed by the trial court, whereas without obtaining a decree of divorce from the first living wife the second marriage was performed, and the child born from the second wife, could she be treated as legitimate child ?" 17. Ultimately, it has been held, as under : "The law leans in favour of legitimacy and frowns upon bastardity. Section 16 of the Act assures right of such children in the property of their parents. In the instant case it is not in dispute that Chun Ceremony was performed and Puttubai was accepted to be legally wedded wife of deceased Hinchharam and under these circumstances it cannot be held that there was no legal marriage. Even if it is assumed that there was no legal marriage, then too in view of the provisions of Section 16 of the Hindu Marriage Act such a child who otherwise was illegitimate, has been given status of legitimate child and would certainly succeed to the property of her parents.,. 18. Even if it is assumed that there was no legal marriage, then too in view of the provisions of Section 16 of the Hindu Marriage Act such a child who otherwise was illegitimate, has been given status of legitimate child and would certainly succeed to the property of her parents.,. 18. Before parting with this case, it would be appropriate to refer the intention of the Legislature in incorporating Section 16(1) under the Hindu Marriage Act as amended by the Marriage Laws (Amendment) Act, 1976, which reads as under : "16(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 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) Whether 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 into the 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 possession or acquiring any such rights by reason of his not being the legitimate child of his parents." 19. The safest course to assume in the instant case would be after taking into consideration the provisions of Section 16(1) of the Act of 1976 irrespective of the nullity of the marriage under Section 11 of the said Act, any child who would have otherwise been legitimate if the marriage has been held valid, shall be legitimate whether such child is born before or after the commencement of the Act of 1976 and whether or not a decree of nullity has been granted to the parties in respect of that marriage under the Act and also irrespective of the fact whether or not the marriage has been held to be void otherwise than on a petition under the Act. 20. Applying the above principle as incorporated in Section 16(1) of the Act to the instant case as regards the right of inheritance and/or succession of the petitioner to the property of late Ramnarain to the extent of his 1/2 share, it would not have overriding effect irrespective of the fact that the marriage between late Ramnarain and Smt. Gulli was void since paternity of plaintiff not being in dispute who being the minor at the relevant time of institution of the suit, he should not be deprived of his rights to the property of the deceased which have crystalised consequent upon the demise of his father and regardless of the fact that since otherwise he was incapable of acquiring possession of his share to property for the reasons of his not being the legitimate child of his parents. It is not open to the defendant to take somersault on the pretext that since the decree of nullity had not been granted in respect of such marriage before the decree was made absolute and who would otherwise have been the legitimate child of the parties to the marriage if on the date of decree the marriage stood dissolved instead of being annulled since such a child as per sub-section (2) of Section 16 shall be deemed to be their legitimate child notwithstanding the decree of nullity. 21. 21. Moreover, as a result of the provisions of the Hindu Succession Act, 1956 as amended by the Act, 1976, the widow and the son/daughter or the heirs falling in Class-I category for the purpose of succession to the estate of the deceased, the plaintiff being the son having been born out of wedlock of Ram Narain and Smt. Gulli obviously falls in the category of Class-I heirs and hence entitled to succeed to the estate of the deceased at par with the rights of inheritance conferred by the Act on a natural or adopted born sons by virtue of explanation to Section 2 of the Act 1956. 22. A bigamous marriage which is contracted by the parties during the subsistence of a marriage contracted lawfully satisfying the essential conditions of a valid marriage as per Section 5 of the Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment) Act, 1976 though may affect the marital status of such parties so as to attract penal consequences, but that by itself would certainly not affect the rights of succession to estate of deceased under the Hindu Succession Act, 1956 of the issue or issues born out of such wedlock.As a result of the above discussion, the plaintiff appellants deserves to succeed. Consequently, the judgment & decree dt. 19.1.1998 passed by learned ADJ No. 2 in Civil Suit No. 3/95 whereby the plaintiff's suit had been dismissed is quashed and set-aside. The appeal is allowed with no order as to costs. The summoned record be transmitted back to the trial court forthwith.Appeal Allowed. *******