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“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate. Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve 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 void. Sons of the 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 be 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”.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH

English: Hight court of the state of Andhra pr...

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AT HYDERABAD

FRIDAY, THE FOURTEENTH DAY OF OCTOBER
TWO THOUSAND AND ELEVEN

PRESENT

THE HON’BLE SRI JUSTICE K.C.BHANU

 

CIVIL MISCELLANEOUS APPEAL No. 1215 OF 2008

Between :

Sugunamma and others.                                     …APPELLANTS

A N D

Contral Power Distribution

Company of A.P. Ltd. and others.                     …RESPONDENTS


           THE HON’BLE SRI JUSTICE K.C.BHANU

CIVIL MISCELLANEOUS APPEAL No. 1215 of 2008

 

JUDGMENT :

This Civil Miscellaneous Appeal under Section 384 of Indian Succession Act, 1925 is directed against the order, dated 29.10.2007 in O.P.No.3120 of 2004 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby, the Original Petition filed under Section 372 of the Act, originally against appellant No.1 and respondent Nos.1 and 8 /respondent Nos.1 to 3 and later impleading appellant Nos.2 to 5 /respondent Nos.4 to 7, for grant of succession certificate enabling respondent Nos.2 to 7 / petitioners to withdraw an amount of Rs.3,58,768/- along with accrued interest thereon and monthly pension from the office of respondent No.1 herein, was allowed.

2.       The appellants in the appeal are the respondent Nos.4 to 7, respondent Nos.1 and 8 in the appeal are respondent Nos.2 and 3 and respondent Nos.2 to 7 in the appeal are petitioners, before the trial Court.  For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the trial Court.

3.       The petitioners filed the Original Petition states as follows:

One Late Pentaiah was working as Lineman in Respondent No.2 – Central Power Distribution Company of Andhra Pradesh Limited, Hyderabad; that he died on 07.01.2002 due to Cardiac arrest; that petitioner No.1 is his wife, and petitioner Nos.2 to 6 are the children of petitioner No.1 born through him; that he nominated petitioner No.1 to receive the service benefits in case of his death while in service; that after his death, the petitioners approached respondent No.2 Company furnishing the details of the amount to her; that on 11.02.2002, the petitioners received a notice on behalf of respondent No.1 from the office of Sri M.Veeresham, Advocate, whereunder, respondent No.1 claimed to be the legally wedded wife of late Pentaiah having married him in the year 1987 and having begotten four children; that respondent Nos. 4 to 7 got impleaded subsequently claiming that they are entitled to receive the service benefits on the demise of late Pentaiah.

Late Pentaiah had never got married any other woman more specifically with respondent No.1 and that he always lived with her and other petitioners.  There was no reference to respondent No.1 during the life time of late Pentaiah.  Neither respondent No.1 nor her children ever came to the house of the petitioners and claimed their relationship with late Pentaiah.  The deceased married petitioner No.1 in the year 1970.  Even if the marriage with respondent No.1 in the year 1987 is to be accepted, it is a void marriage.  As there was no response from the department, the petitioners approached the Administrator General of Andhra Pradesh in C.A.No.93 of 2002 under Section 29 of Administrator General Act, 1963 for grant of letter of administration in respect of the assets of late Pentaiah against Respondent No.2 – Central Power Distribution Company, Hyderabad and respondent No.1. The Administrator General, however, closed C.A.No.93 of 2002 as it was beyond his pecuniary jurisdiction with a liberty to the party to approach appropriate Court of law for the relief. Respondent Nos.1, 4 to 7 are strangers to the family of the petitioners and late Pentaiah and are not entitled to any of the benefits. Hence, the Original Petition.

4.          Respondent No.1 filed counter-affidavit admitting that late Pentaiah was working as a Lineman in Respondent No.2 – Company, but, contending that the petitioners alone are not entitled to receive the service benefits of late Pentaiah.  She also denied that late Pentaiah nominated petitioner No.1 to be entitled to receive the service benefits in case of death of late Pentaiah while in service.  It was further contended that she approached the department with a request to pay the service benefits available on the death of late Pentaiah and also admitted to have issued a notice to the petitioners through her advocate on 11.02.2002 claiming herself to be the legally wedded wife of late Pentaiah having got married him in the year 1987 and having begotten four children.  She stated that late Pentaiah died in their house at Uppuguda.  She denied her marriage with late Pentaiah to be void.  She denied to be totally stranger to the family of the petitioners of the deceased and asserted to be the legally wedded wife of the deceased.  She further contended that herself and respondent Nos.4 to 7 are entitled to the benefits payable on the death of late Pentaiah.  It was further contended that the name of respondent No.1 and respondent Nos.4 to 7 were included in the nomination form on 6.8.1996.  She further contended that the relationship between petitioner No.1 and late Pentaiah are not cordial and that with the consent of petitioner No.1 only late Pentaiah married her and used to reside with  her.  It is also contended that the petitioners never objected for the marriage of late Pentaiah with respondent No.1 and late Pentaiah living with her.

5.          Basing on the above pleadings, the following issues were framed for trial:

“1.     Whether the first respondent is the legally wedded wife of late Pentaiah?

2.                Whether respondent Nos.4 to 7 are the legitimate children of late Pentaiah and are entitled for the death benefits of the deceased Pentaiah?

3.                Whether the petitioners are alone entitled for the Succession Certificate and the pensionary benefits on the death of the deceased?”

6.          During trial, on behalf of the petitioners, P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.3, and on behalf of the respondents, R.Ws.1 to 4 were examined and Exs.B.1 to B.6 were got marked.

7.       The Trial court, after considering the oral and documentary evidence, allowed the Original Petition granting Succession Certificate to the petitioners to enable them to withdraw an amount of Rs.3,58,768/- along with the accrued interest thereon and the monthly pension from the office of respondent No.2 in the trial Court. Challenging the same, respondent Nos.1 and 4 to 7 filed the present appeal.

8.          Learned Counsel for the appellants/respondent Nos.1 and 4 to 7 contended that Exs.B.3 to B.6 have not been objected when they were marked; that they show about the relationship of the appellants as the wife and children of late Pentaiah; that Ex.A.3 would clearly go to show that late Pentaiah gave a nomination to his Employer nominating appellant No.1 as his wife, and appellant Nos.2 to 5 as his children and those documents have not been taken into consideration by the trial Court; that under Section 16 of the Hindu  Marriage Act, 1955 (for short, ‘the Act’) even if the marriage is void, children born to the second wife will get status of legitimate children and hence, he prays to grant a share to appellant Nos.4 and 5, who are still minors.

9.       On the other hand, learned counsel for the respondent Nos. 2 to 7 / petitioners contended that Section 16 (1) of the Act will not come into operation unless the marriage is established between the parties; that there is no evidence of whatsoever to show that the marriage of the deceased Pentaiah was performed with Sugunamma i.e., Appellant No.1 herein in accordance with Caste custom; that the documents relied upon by the appellants do not give the legal status of wife with late Pentaiah and therefore, the trial Court after an elaborate consideration of evidence on record rightly granted succession certificate and that order needs no interference by this Court.

10.          Appellant No.1 claims to be the second wife of late Pentaiah and appellant Nos. 2 to 5 are children of appellant No.1 born claimed to be through late Pentaiah.  It is not in dispute that late Pentaiah worked as a Lineman in Respondent No.2 Company.  It is also not in dispute that he died on 07.01.2002 due to cardiac arrest.  It is also not in dispute that respondent No.2 herein filed an application before the Administrator General for grant of legal heir certificate.  On the point of pecuniary jurisdiction, that application was returned for presentation before appropriate Court.  The present Original Petition was filed by respondent Nos.2 to 7 before the trial Court for grant of Succession Certificate under Section 372 of the Hindu Succession Act, 1956.

11.     The appellants did not dispute that respondent No.2 is legally wedded wife, and respondent Nos.3 to 7 are the children born to respondent No.2 through late Pentaiah. The trial Court after considering the evidence available on record came to the conclusion that the marriage of Sugunamma/appellant No.1 with late Pentaiah has not been established and therefore, even the children of appellant No.1 cannot get the status of legitimate children as the marriage has not been established.

12.          Learned counsel for the respondent Nos.2 to 7 placed reliance on a decision reported in Smt Nimbamma V. Rathnamma[1], wherein it was held thus (para No.4):

“I have applied my mind to the contention of the learned counsel for the petitioner.  Even if in the Voters’ list under Ex.P.4, Nimbamma is mentioned as the wife, but from the evidence it is proved that prior his coming in to company with Nimbamma either by marriage or by illicit relationship whatsoever it may be, that will not give the revision-petitioner the status of wife when it is established that with Rathnamma he marriage 20 years ago or more than that and it is not established that deceased had divorced his wife Smt Rathnamma who is his first wife according to law, when it is not proved that deceased has got decree for divorce in the legal proceeding, divorcing Rathnamma prior to the martial relationship with the petitioner even if the said marriage with revision-petitioner might have been performed.  That, when the same was performed in the life-time of the first wife, i.e, when deceased –Shekaraiah had Smt Rathnamma, his first wife living, then the marriage if any, with Nimbamma was in violation of first condition as mentioned in Section 5 of the Hindu Marriage Act.  One of the conditions is that neither the spouse has his or her spouse living at the time of second marriage.  Section 11 declares that marriage performed in breach of Section 5 (i) and (iv) and (v) of the Act shall be null and void.  The effect of marriage being null and void is that it is non est and law does not recognize it and takes it that such a marriage has not been taken place.  Such provisions as Section 5 (i) and 11 of the Hindu Marriage Act render position of lady married with a person who had his spouse living at the time of second marriage to be that of a kept mistress and not that of a married wife and such lady is not entitled to succeed to the properties of that person such as the present deceased-Shekaraiah”.

13.     He also relied on a decision reported in Mrs.Sudershan Karir and others V. The State and others[2], wherein it was held thus (para No.5):

“ …… The trial Court is perfectly right in observing that S.16(1) comes into operation only in a case in which a marriage is in fact proved to have taken place between two person, but which may be otherwise null and void as per the provisions of S.11.  S.11 provides for getting a marriage declared null and void on certain grounds as stated therein.  The present is not a case of a marriage having been performed between Smt Sudershan Karir and Sham Sunder Karir which may otherwise be declared or alleged to be null and void. The present is a case of no marriage between these persons. As such, 16 (1) does not come in aid to the case of the children born to Smt Sudershan Karir”.

14.     He also relied on a decision reported in Ramkali and another V. Mahila Shyamwati and others[3], wherein it was held thus (para No.17):

“However, when a de jure or a de facto marriage is rendered null and void under Section 11 or 12 of the Hindu Marriage, 1955 or is otherwise found to be void, the statutory fiction envisaged under Section 16 of the Hindu Marriage Act, 1955 comes into play protecting the interest of a child born out of such a marriage conferring upon him the status of a legitimate child.  The condition precedent for making such a statutory presumption available however is that there must be either a de jure or a de facto marriage.  In this connection, it may further be noticed that this Court in its decision in the case of Reshamlal V. Balwant Singh, reported in 1994 Jab LJ 160 had clearly observed that the provision contained in Section 16 of the Hindu Marriage Act, 1955 has to be interpreted to mean that there must be a marriage, which would be hit by the provisions of the said Act.  In that case, it had been found that there was no marriage at all and therefore, the provision of Section 16 of the said Act could not be said to be available to the appellant”.

From the above decisions, it is clear that in order to invoke Section 16 of the Act it is a condition precedent that in a case in which a marriage is in fact proved to have taken place between two persons the children of such marriage shall be legitimate even if the marriage is void.

15.          R.Ws.2 to 4 were not shown to be present at the time of marriage of R.W.1 with late Pentaiah.  Even assuming for a moment that the evidence of R.Ws. 2 to 4 does not inspire confidence because of certain infirmities and improbabilities, the respondents produced Exs.B.3 to B.6, which would go to show about the relationship of the appellants with late Pentaiah. Similarly Ex.A.3 is the certified copy of order of the Administrator General, wherein it was observed that the Employer of late Pentaiah produced the nomination papers said to have been given on 06.08.1996, whereunder late Pentaiah has furnished the names of his family members.  In Ex.A.3 appellant No.1 was shown as wife, and appellant Nos.2 to 4 were shown as daughters of late Pentaiah.  So, when a statement is given by a person who is dead, then such statement is admissible with regard to the relationship between the parties under Section 32 (5) of the Indian Evidence Act, 1872 which reads as follows:

“When the statement relates to the existence of any relationship 1[ by blood, marriage or adoption] between persons as to whose relationship 1[ by blood, marriage or adoption]the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised or is made in will or deed relating to family affairs”.

Declarations by deceased regarding relationship made ante litem motam, are admissible to prove matters of pedigree.  Such declarations are receivable on the ground of necessity, better evidence of the facts being often unobtainable, and partly because the peculiar means of knowledge possessed by declarant, and his absence of interest to misrepresent, both the declarations with a prima facie probability of truth.  From the above provision, it is clear that statement made by deceased is relevant when they mutate to the existence of any relationship between persons as to whose relationship the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised.

16.     It is not the case of respondent Nos.2 to 7 / petitioners before the Court below that late Pentaiah has not given any statement or declaration before his Employer nominating the appellants. The reference as made by the Administrator General has not been denied or disputed and respondent Nos.2 to 7 themselves produced the documents, which would clearly go to show that appellant No.1 is the wife and appellant Nos. 2 to 4 are the children of late Pentaiah.  In view of the fact that late Pentaiah was having first wife, another marriage if any, contacted by late Pentaiah is a void marriage under Section 11 Hindu Marriage Act, 1955.  The evidence of R.W.1 would go to show that late Pentaiah married her with the consent of P.W.1.  The evidence of R.W.1 coupled with recitals in Exs.B3 to B.6 and Ex.A.3 would clearly go to show that when P.W.1 was alive and her marriage with late Pentaiah was subsisting, late Pentaiah appears to have married again.  From the circumstances, it can be inferred that the marriage of appellant No.1 with late Pentaiah was performed and she had begotten three children out of the said wedlock.  In view of the fact that first marriage was subsisting, the second marriage of appellant No.1 with late Pentaiah is void.  In view of Section 16 (1) of the Act, the children born to the second wife though illegitimate, they can come within the definition of legitimate children and consequently, they are entitled to a share provided they are the minors.  The trial Court relied upon a decision in (AIR 2000 Supreme Court 735) wherein it was held thus:

“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate.  Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve 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 void.  Sons of the 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 be 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”.

In view of the above decision, it is clear that if the illegitimate children are minors they are entitled to terminal benefits.  It is not in dispute before this Court that appellant Nos.4 and 5 are still minors.  Appellant Nos.4 and 5 are entitled for a share with regard to the terminal benefits of the deceased.

17.          Accordingly, the Civil Miscellaneous Appeal is partly allowed granting Succession Certificate to Appellant Nos.4 and 5 who are entitled for a share.  Appellant Nos. 4 and 5 are entitled to the terminal benefits of late Pentaiah in equal shares along with respondent Nos.2 to 7 as per law.  There shall be no order as to costs.

       

                _______________

K.C. BHANU, J

OCTOBER 14, 2011

YVL


[1] AIR 1999 Karnataka 226

[2] AIR 1988 Delhi 368

[3] AIR 2000 Madhya Pradesh 288

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