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2000 (2) JLJ 176
S.P. Srivastava, J.
Ramkali and another v. Mahila Shyamwati and others
M.A. No. 29 of 1995; against the order of Shri K.S. Kori, IV Additional.
Judge to the District Judge, Bhind, in Succession Case No. 13 of 1994;
Decided on 4.5.2000
No evidence admissible under section 50 of the Evidence Act had been led to prove the relationship of wife and husband between Ramkali and Chhote Singh of such habit and repute which could raise a presumption in respect of the marriage. Even otherwise where the alleged marriage is void ab initio or originates in concubinage, no such presumption in regard to the marriage can be available under the law. [Para 10
(2) Marriage -- presumption in Favour of marriage -- does not arise merely on ground of co-habitation -- co-habitation must be with habit and repute. [Para 11
(3) Hindu Succession Act, 1956 -- S. 8 and Sch. -- widow - is a female whose marriage is not void de jure -- it means a female whose marriage was recognised by law and who survives husband without remarriage. [para 12
(4) Hindu Succession Act, 1956 -- Ss. 3 (1)(j) proviso, 8 and Sch. -Succession Act, 1925 -- Ss. 4 and 8 -- legitimate and illegitimate son and daughter -- are two distinct and separate classes -- they do not stand on par but stand apart -- interest of illegitimate son or daughter is saved by proviso to S. 3(1)(j) -- in 1925 Act their interest is not so saved.
The Act in terms separates and distinguishes the two and excludes the illegitimates from any right to intestate succession except to the extent expressly enacted in the proviso to section 3(1)(j) of the Act. For the purpose of succession to the property of a male Hindu dying intestate, the Act clearly intends only a legitimate relationship with the father unlike with the mother with whom a special fictional legitimacy and consequent heritability flowing there from is established.
Taking into consideration the scheme reflected by sections 3(1)(j), 4 and 8 of the Indian Succession Act. it is not possible to include the illegitimate children within the meaning of the words ‘son‘ or ‘daughter‘ as used in the list of heirs of Class-I indicated in the Schedule to the said Act. [Para 16 & 17
(5) Hindu Marriage Act, 1955 -- Ss. 11, 12 and 16 -- protection of interest of child under S. 16 -- is available when a marriage takens place which is declared void either under S. 11 or S. 12 -- provision does not apply when there is no marriage. 1994 JLJ 160 relied on. [ Para 18
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Srivastava, J. -- 1. Heard the learned counsel for the appellants as well as the learned counsel representing the contesting respondents.
2. Perused the record.
3. The appellants feel aggrieved by the order passed by the Additional District Judge, Bhind in the proceedings under Section 372 of the Indian Succession Act, whereunder rejecting their objections, the application filed by Shyamwati Asharam and Ram Prasad, the present respondents No. 1 to 3 respectively had been granted the succession certificate prayed for holding them to be the only heirs of Chhotesingh who were found entitled to get the amount of Rs. 40,000/- from the Electricity Department, District Morena which stood deposited to the credit of Chhote Singh, the deceased who had died intestate.
4. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass: Chhote Singh who was employed as a Line than in the Electricity Department had died on 1.12.1984 in village Chandawali No.1, District Bhind. An application under Section 372 of the Indian Succession Act was filed on 19.8.1994 by Shyamwati claiming to be the widow of Chhote Singh, the deceased and Asharam and Ram Prasad claiming to be the sons of the deceased, Chhote Singh asserting that they alone were the heirs of Chhote Singh, the deceased and praying for the grant of the succession certificate entitling them to receive an amount of Rs. 40,000/- which was lying in deposit with the Electricity Department, district Morena.
5. On 7.10.1994, an objection was tiled opposing the aforesaid application by Ramkali, the present appellant No. 1 asserting that she was the legal heir of Chhote Singh, since deceased in view of her being his wife along with one son Krishan Chand born to her from Chhote Singh, the deceased. She had also asserted that her father had married her as well as her real sister Shyamwati to Chhote Singh in accordance with the social rites and custom. These marriages had been performed at the same time, that is to say on the same day and both the sisters were the wives of the aforesaid Chhote Singh. Chhote Singh, however, resided along with her in his last days at Morena. She claimed to be en1itled to one half of the amount in dispute alleging that her sister. Shyamwati was entitled to the remaining half. She, therefore, claimed that a direction he issued requiring half of the amount in dispute to be paid to her.
6. The learned Additional District Judge after considering the evidence brought Oil the record came to the conclusion that Ramkali had not been able the establish that she had been married with Chhote Singh and her status Could not be more than that of a Rakhail (concubine).
7. On the aforesaid findings, Shyamwati and the two sons of Chhote Singh that is, Asharam and Ram Prasad alone were found to be the legal heirs entitled to the succession certificate as prayed for. Rejecting the objection filed by the appellants the Additional District Judge allowed the application filed by Shyamwati and others as has already been indicated hereinabove.
8. It may be noticed that in her deposition dated 25.10.94 Rarnkali had admitted that Shyamwati was her real sister. She had also admitted that Shyamwati had married with Chhote and that Asharam and Ram Prasad were born out of the aforesaid wedlock. It was further admitted by her that she had been married to Asharam, a resident or village Gamrahi and out of this wedlock, a daughter had been born to her who had been married on her attaining the age of 20 years. Asharam, her husband had died about 18 years ago and she used to reside along with him during his life time, Five or Six years after the death of her husband, Asharam, she claimed that Chhote Singh had brought her to Morena as his wife and thereafter she was residing with him as his wife. On some occasions, she also resided with him in his village Chandrawali where Shyamwati used to reside along with Chhote Singh. During his lire time, both, she as well a
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