Nainalu Krishna vs K Debraj K Debraj Patra on 22 December, 2017

HIGH COURT OF ORISSA: CUTTACK

S.A. No.16 of 2000 S.A. No.15 of 2000

S.A. No.16 of 2000
From the judgment and decree dated 28.10.1999 and 18.11.1999
respectively passed by Shri J.N. Panda, learned 1st Additional District
Judge, Berhampur in T.A. No.37/99 (T.A. No.20/94 GDC) confirming
the judgment and decree dated 22.2.1994 and 3.3.1994
respectively passed by Sri R.N. Panda, learned Munsif, Berhampur in
T.S. No.117 of 1992.
———-
S.A. No.15 of 2000
From the judgment and decree dated 28.10.1999 and 18.11.1999
respectively passed by Shri J.N. Panda, learned 1st Additional District
Judge, Berhampur in T.A. No.38/99 (T.A. No.25/94 GDC) reversing
the judgment and decree dated 22.2.1994 and 3.3.1994
respectively passed by Sri R.N. Panda, learned Munsif, Berhampur in
T.S. No.117 of 1992.
———-

Nainalu Krishna ……………… Appellant

—versus–
K. Debraj @ K. Debraj Patra ……………… Respondent

For Appellant : Mrs. Jyotsnamayee Sahoo, Advocate
For Respondent : Mr. B.K. Mohanty, Advocate

JUDGMENT

P R E S E N T:

THE HON’BLE DR. JUSTICE A.K. RATH

—————————————————————————-
Date of Hearing :11.12.2017 │ Date of Judgment:22.12.2017

—————————————————————————-
Dr. A.K. Rath, J. Since the common question of facts and law are
involved in both the appeals, the same were heard together and are
disposed of by this common judgment.

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02. These appeals have been filed against the common
judgment of the learned 1st Additional District Judge, Berhampur.
The plaintiff-appellant instituted the suit for declaration.

03. The case of the plaintiff was that N. Narsamma was the
daughter of N. Sarathi. She was serving as sweeper in Khallikote
College, Berhampur. The plaintiff is the son of N. Chinneyya, brother
of N. Narsamma. N. Narsamma was a spinster. She adopted the
plaintiff at about 9 A.M on makar sankaranti day, when he was aged
about 10 years old. There was giving and taking ceremony. The
parents of the plaintiff physically handed over to him to N.
Narsamma, who accepted him as her adopted son in presence of the
relatives. The plaintiff was also looking after Narsamma, when she
was ill. Narsamma executed a deed of acknowledgement of adoption
as a token of evidence of adoption of the plaintiff on 20.3.92 before
the Notary Public. Narsamma died on 24.8.92. The plaintiff was
entitled to her retiral benefits. He was entitled to a post under the
rehabilitation scheme. It was further pleaded that the defendant,
who is the grandson of K. Papamma, the elder sister of Narsamma,
had made a false claim and wanted to take all the death benefits of
Narsamma on the ground that her grandfather K. Simadri had
married to Narsamma and he is the only legal heir to get such
benefits. He had created certain documents like affidavit said to
have been sworn by Narsamma before the Notary Public and had
made a counter claim on the basis of those false affidavits. With this
factual scenario, the plaintiff instituted the suit seeking the reliefs
mentioned supra.

04. The defendant filed a written statement. The case of the
defendant was that N. Sarathi had two sons and two daughters,
namely, N. Sanyasi, N. Chinneyya, K. Papamma and N. Narsamma.
K. Papamma. The elder daughter of N. Sarathi married to K.

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Simadri. The father of the defendant K. Krushnamurty was the only
son of K. Papamma, the first wife of K. Simadri. His father,
grandfather and grandmother K. Papamma are all dead. As K.
Papamma was sick, K. Simadri married to N. Narsamma. After death
of N. Narsamma, the defendant being her only legal heir was
entitled to get the entire death benefits of her. But then the plaintiff,
son of N. Chinneyya, by a fake document of adoption claimed the
death benefits of Narsamma. Plaintiff is not the adopted son of N.
Narsamma. He was all through rendering the services to his
grandmother Narsamma, when she was ill. Narsamma died on
24.8.92. She had also sworn affidavits before the Executive
Magistrate that she married to K. Simadri and as such, the
defendant is the only legal heir and successor to her. She had
nominated the defendant to get all the death benefits including her
service benefits under the rehabilitation scheme.

05. Stemming on the pleadings of the parties, learned trial
court struck eight issues. Parties led evidence. Learned trial court
came to hold that the plaintiff is not the adopted son of N.
Narsamma. He disbelieved the marriage of Narsamma with K.
Simdari. Held so, it dismissed the suit. Feeling aggrieved, the
plaintiff filed T.A. No.20/94 before the learned District Judge,
Berhampur. The defendant also filed T.A. No.25/94. Both the
appeals were transferred to the court of the learned 1st Additional
District Judge, Berhampur and renumbered as T.A. No.37/99 and
T.A. No.38/99 respectively and heard analogously. Learned lower
appellate court dismissed T.A. No.37/99. In T.A. No.38/99, it held
that Narsamma married to K. Simadri during life time of his first
wife, K. Papamma, for the second time. The marriage is void. No
petition under Sec.11 of the Hindu Marriage Act, 1955 was filed to
declare the marriage void. With regard to succession of the death
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and service benefits of Narsamma, it held that the plaintiff had
created certain documents from 20.3.92 onwards initially creating a
deed of acknowledgement of adoption getting the same sworn
before the Notary Public. The rest of the documents were created
thereafter. The defendant had proved Ext.A, the certified copy of the
application dated 28.8.91 said to have been filed by Narsamma
indicating therein that he will be entitled to get her death benefits.
The transfer certificate, Ext.A/1, disclosed the name of the father of
defendant as K. Krishnamurty. Ext.A/2 is an affidavit sworn by
Narsamma before the Executive Magistrate intending to make the
defendant as her nominee. It further held that though the marriage
is void, but there is no decree declaring the same as void. Marriage
is deemed to be in existence. Therefore, the defendant is entitled to
succeed to the share of Narsamma under Sec.15(1)(b) of the Hindu
Succession Act.

07. The second appeal was admitted on the substantial
questions of law enumerated in ground nos.A, B and D of the
memorandum of appeal. The same are:

“(A) Whether the impugned judgments are
perverse for non-consideration of the material on
record more specifically Ext.2 ?

(B) Whether the plaintiff has duly discharged the
burden of proving his adoption ?

(D) Whether the impugned finding of the learned
courts below that the plaintiff is not entitled to get
the service benefit of late Narsamma is perverse
for non-consideration of Ext.4 ?”

08. Heard Mrs. Jyotsnamayee Sahoo on behalf of Mr. Manoj
Kumar Misrha, learned Senior Advocate for the appellant and Mr.
B.K. Mohanty, learned counsel for the respondent.

09. Mrs. Sahoo, learned counsel for the appellant submitted
that plaintiff is the adopted son of Narsamma. There is ample
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evidence on record that the plaintiff is the son of Narsamma. The
medical prescription, money receipt, unregistered adoption deed and
nomination form of N. Narsamma would show that plaintiff is the
adopted son of Narsamma. The courts below committed a manifest
illegality in non-suiting the plaintiff.

10. Per contra, Mr. Mohanty, learned counsel for the
respondent submitted that since K. Papamma was ill, her husband,
K. Simadri married to N. Narsamma, younger sister of K. Papamma.
No petition was presented declaring the marriage is void. Learned
lower appellate court has rightly holding that the defendant is
entitled to the estate of Narsamma.

11. On a thorough scrutiny of evidence on record and
pleadings, both the courts concurrently held that plaintiff is not the
adopted son of N. Narsamma. The medical prescription, money
receipt, nomination paper and unregistered adoption deed are not
substitute of factum of giving and taking. The so-called adoption
deed was made before the Notary Public. Rightly the courts below
held that the plaintiff is not the adopted son.

12. The next question crops up as to whether the learned
lower appellate court is justified in holding that the defendant is
entitled to the estate of Narsamma, since there is no decree
declaring the marriage void once it held that K. Simadri married to
N. Narsamma for the second time during subsistence of the
marriage.

13. In Smt. Yamunabai Anantrao Adhav v. Anantrao
Shivram Adhav and another, AIR 1988 SC 644, the apex Court held:

“xxx xxx xxx
Clause (i) of S.5 lays down, for a lawful marriage, the
necessary condition that neither party should have a
spouse living at the time of the marriage. A marriage in
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contravention of this condition, therefore, is null and void.
It was urged on behalf of the appellant that a marriage
should not be treated as void because such a marriage
was earlier recognised in law and custom. A reference
was made to S.12 of the Act and it was said that in any
event the marriage would be voidable. There is no merit
in this contention. By reason of the overriding effect of
the Act as mentioned in S.4, no aid can be taken of the
earlier Hindu Law or any custom or usage as a part of
that Law inconsistent with any provision of the Act. So far
as S.12 is concerned, it is confined to other categories of
marriage and is not applicable to one solemnised in
violation of S.5(i) of the Act. Sub-section (2) of S.12 puts
further restrictions on such a right. The cases covered by
this section are not void ab initio, and unless all the
conditions mentioned therein are fulfilled and the
aggrieved party exercises the right to avoid it, the same
continues to be effective. The marriages covered
by S.11 are void ipso jure, that is, 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 a petition, it is not essential to obtain in
advance such a formal declaration from a court in a
proceeding specifically commenced for the purpose. The
provisions of S.16, which is quoted below, also throw light
on this aspect:

“16. Legitimacy of children of void and voidable
marriages.-(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 (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 void otherwise than on a petition under this Act.

(2) Where 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 of 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
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decree of nullity under Section 12, any rights in or to 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 possessing or acquiring any
such rights by reason of his not being the legitimate child
of his parents. (Emphasis added).

Sub-section (1), by using the words underlined above
clearly implies that a void marriage can be held to be so
without a prior formal declaration by a court in a
proceeding. While dealing with cases covered by S.12,
sub- section (2) refers to a decree of nullity as an
essential condition and sub-section (3) prominently brings
out the basic difference in the character of void and
voidable marriages as covered respectively by Ss.
11 and 12. It is also to be seen that while the legislature
has considered it advisable to uphold the legitimacy of the
paternity of a child born out of a void marriage, it has not
extended a similar protection in respect of the mother of
the child. The marriage of the appellant must, therefore,
be treated as null and void from its very inception.”

14. The seminal question that hinges for consideration is as
to whether the word ‘son’ in clause (a) of sub-sec.(1) of Sec.15 of
Hindu Succession Act, 1956 takes within its sweep ‘step son’ also ?

15. Sec.15 of the Hindu Succession Act, 1956 provides
general rules of succession in the case of female Hindus. It reads
thus:

“15. General Rules of succession in the case of
female Hindus.–(1) The property of a female Hindu dying
intestate shall devolve according to the rules set out in
section 16,–

(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section(1),–

(a) any property inherited by a female Hindu from her
father or mother shall devolve, in the absence of any son
or daughter of the deceased (including the children of any
pre-deceased son or daughter), not upon the other heirs
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referred to in sub-section (1) in the order specified therein,
but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her
husband or from her father-in-law shall devolve, in the
absence of any son or daughter of the deceased (including
the children of any pre-deceased son or daughter) not upon
the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband.”

16. Sec.15(1)(a) of the Hindu Succession Act, 1956 was the
subject matter of interpretation in
Lachman Singh vs. Kirpa Singh
and others, AIR 1987 SC 1616. The apex Court held:

“4.The only question which is to be determined here is
whether the expression ‘sons’ in clause (a) of S.15(1) of
the Act includes step-sons also, i.e., sons of the husband
of the deceased by another wife. In order to decide it, it is
necessary to refer to some of the provisions of the
Act. Section 3(j) of the Act defines ‘related’ as related by
legitimate kinship but the proviso thereto states that
illegitimate children shall be deemed to be related to their
mother and to one another, and their legitimate
descendants shall be deemed to be related to them and
to one another and that any word expressing relationship
or denoting 9 relative shall be construed
accordingly. Section 6 and section 7 of the Act
respectively deal with devolution of interest in co-

parcenary property and devolution of interest in the
property of a tarwad, tavazhi, kutumba, kavaru and
illom.
Sections 8 to 13 of the Act deal with rules of
succession to the property of a male Hindu dying
intestate. We are concerned in this case with the rules of
succession to the property of a female Hindu dying
intestate.
Sections 15 and 16 of the Act are material for
our purpose. Ordinarily laws of succession to property
follow the natural inclinations of men and women. The list
of heirs in
section 15(1) of the Act is enumerated having
regard to the current notions about propinquity or
nearness of relationship. The words ‘son’ and ‘step-son’
are not defined in the Act. According to Collins English
Dictionary a ‘son’ means a male offspring and ‘step son’
means a son of one’s husband or wife by a former
union.
Under the Act a son of a female by her first
marriage will not succeed to the estate of her ‘second
husband’ on his dying intestate. In the case of a woman it
is natural that a step son, that is, the son of her husband
by his another wife is a step away from the son who has
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come out of her own womb. But under the Act a step-son
of a female dying intestate is an heir and that is so
because the family headed by a male is considered as a
social unit. If a step-son does not fall within the scope of
the expression ‘sons’ in clause (a) of
section 15(1)of the
Act, he is sure to fall under clause (b) thereof being an
heir of the husband. The word ‘sons’ in clause (a)
of
section 15(1) of the Act includes (i) sons born out of
the womb of a female by the same husband or by
different husbands including illegitimate sons too in view
of
section 3(j) of the Act and (ii) adopted sons who are
deemed to be sons for purposes of inheritance. Children
of any predeceased son or adopted son also fall within the
meaning of the expression ‘sons’. If Parliament had felt
that the word ‘sons’ should include ‘step-sons’ also it
would have said so in express terms. We should
remember that under the Hindu law as it stood prior to
the coming into force of the Act, a step-son, i.e., a son of
the husband of a female by another wife did not
simultaneously succeed to the stridhana of the female on
her dying intestate. In that case the son born out of her
womb had precedence over a step-son. Parliament would
have made express provision in the Act if it intended that
there should be such a radical departure from the past.
We are of the view that the word ‘sons’ in clause (a)
of
section 15(1) of the Act does not include ‘step-sons’
and that step-sons fall in the category of the heirs of the
husband referred to in clause (b) thereof.”

xxx xxx xxx

6. ……………The words ‘sons and daughters ….. and the
husband’ in clause (a) of
section 15(1) only mean ‘sons
and daughters …… and the husband’ of the deceased.
They cannot be ‘sons and daughters …… and the
husband’ of any body else. All relatives named in the
different clauses in sub-section (1) of
section 15 of the
Act are those who are related to the deceased in the
manner specified therein. They are sons, daughters,
husband, heirs of the husband, mother and father, heirs
of the father and heirs of the mother of the deceased. The
use of the words ‘of the deceased’ following ‘son or
daughter’ in clauses (a) and (b) of sub-section (2)
of
section 15 of the Act makes no difference. The words
‘son or daughter of the deceased (including the children
of any predeceased son or daughter)’ in clauses (a) and

(b) of section 15(2) of the Act refer to the entire body of
heirs failing under clause(a) of
section 15(1) of the Act
except the husband. What clauses (a) and (b) of sub-
section (2) of
section 15 of the Act do is that they make a
10

distinction between devolution of the property inherited
by a female Hindu dying intestate from her father or
mother on the one hand and the property inherited by her
from her husband and from her father-in-law on the
other. In the absence of any son or daughter of the
deceased (including the children of any predeceased son
or daughter), in a case failing under clause (a) of
section
15(2) of the Act the property devolves upon the heirs of
the father of the deceased and in a case falling under
clause(b) of
section 15(2) of the Act the property
devolves upon the heirs of the husband of the deceased.”

xxx xxx xxx
Is it just and proper to construe that under clause (a)
of
section 15(1) of the Act her stepsons and step-
daughters, i.e., children of the husband by another wife
will be entitled to a share along with her own children
when the Act does not expressly says so? We do not think
that the view expressed by the High Court of Allahabad
represents the true intent of the law. When once a
property becomes the absolute property of a female
Hindu it shall devolve first on her children (including
children of the’ predeceased son and daughter) as
provided in
section 15(1)(a) of the Act and then on other
heirs subject only to the limited change introduced in
section 15(2) of the Act. The step-sons or step-daughters
will come in as heirs only under clause (b) of
section
15(1) or under clause (b) of
section 15(2) of the Act. We
do not, therefore, agree with the reasons given by the
Allahabad High Court in support of its decision. We
disagree with this decision.”

17. In the result, the judgment of the learned lower
appellate court in T.A. No.37/99 is confirmed; and that of T.A.
No.38/99 is set aside. Consequently, the suit is dismissed. The
appeal is allowed to the extent indicated above. No costs.

……………………………….
Dr. A.K. Rath,J.

Orissa High Court, Cuttack
The 22nd December, 2017/Basanta

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