1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.279 of 2008
Judgment reserved on: 11-2-2020
Judgment delivered on: 14-2-2020
1. Smt. Milvanteen Bai, 55 yrs., Wd/o Late Gwal
2. Smt. Ramkumari Bai, 30 yrs., Wd/o Rameshawar Yadav
Vill. Jamgaon, PC No.158, RIC Nawapara, Teh. Abhanpur, Raipur
(Plaintiffs)
—- Appellants
Versus
1. Devkibai, 42 yrs., W/o Konda, Behind Petrol Pump, Abhanpur, Raipur
2. State of Chhattisgarh, By Collector, Raipur
(Defendants)
—- Respondents
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For Appellants: Mr. Raja Sharma, Advocate.
For Respondent No.1: Mr. Somnath Verma, Advocate.
For Respondent No.2 / State: –
Mr. Aakash Pandey, Panel Lawyer.
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Hon’ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
1. This second appeal preferred by the plaintiffs under Section 100 of the
CPC has been admitted by formulating the following substantial
questions of law for determination:
“(1) Whether the Courts below have committed serious
error or law by non-suiting the plaintiff in particular plaintiff
No.2 in spite of admission in para 19 of the written
statement that the plaintiff No.2 being the daughter of Gwal
is entitled to succeed to the property of late Gwal?
(2) Whether the pleadings of adoption raised by the
defendant No.1 has been proved in accordance with the
2requirement of a valid adoption under Sections 6 11 of
Hindu Adoption and Maintenance Act, 1956?”
(For the sake of convenience, parties would be referred
hereinafter as per their status shown and ranking given in the plaint
before the trial Court.)
2. The suit property was held by one Gwal Yadav. Plaintiff No.1 claims to
be his first wife married in chudi form and plaintiff No.2 claims to be
daughter out of the wedlock of Gwal with plaintiff No.1, whereas
defendant No.1 claims that he is adopted daughter of Gwal. Plaintiff
No.1 claiming to be the wife of Gwal married in chudi form with Gwal
and plaintiff No.2 daughter of Gwal out of his marriage with plaintiff
No.1 filed a suit for declaration of title and declaring the entry in
naamantaran panji dated 28-3-1994 as unsustainable and bad in law in
which defendant No.1 claimed to be the adopted daughter of Gwal. The
trial Court after appreciation of oral and documentary evidence on
record dismissed the suit that plaintiff No.1 has failed to prove herself to
be the legal heir of Gwal being wife, but simultaneously, also held that
defendant No.1 has also failed to prove herself to be the adopted
daughter of Gwal against which the plaintiffs preferred first appeal which
has also been dismissed by the first appellate Court and against which
this second appeal has been preferred in which substantial questions of
law have been formulated which have been set-out in the opening
paragraph of this judgment.
3. Mr. Raja Sharma, learned counsel appearing for the appellants herein /
plaintiffs, would submit that since defendant No.1 has admitted in para
19 of her written statement that she is daughter of Gwal, therefore, she
is entitled to succeed the property of late Gwal. He would further
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submit that the second substantial question of law would not arise for
consideration, as defendant No.1 has not preferred any cross-objection.
4. Mr. Somnath Verma, learned counsel appearing for respondent No.1
herein / defendant No.1, would submit that there is no such specific
admission by defendant No.1 in the written statement, as the plaintiffs
are required to prove that Gwal had married plaintiff No.1 and plaintiff
No.2 is daughter of Gwal out of his wedlock with plaintiff No.1 and as
such, the fact of marriage has not been proved strictly. Moreover,
plaintiff No.1 has not entered into the witness box and the fact of
marriage has not been proved. Therefore, the plaintiffs cannot succeed
unless the fact of marriage is proved strictly.
5. I have heard learned counsel for the parties and considered their rival
submissions made herein-above and also went through the record with
utmost circumspection.
6. Plaintiff No.1 in paragraph 6 of the plaint claimed to be the wife of
Gwal married in chudi form and further pleaded that out of her wedlock
with Gwal, plaintiff No.2 was born which defendant No.1 replied that
plaintiff No.1 is second wife of Gwal, but did not admit the fact of
marriage of plaintiff No.1 with Gwal in chudi form. Plaintiff No.1 did
not enter into the witness box to prove the fact of marriage, only her
daughter Ramkumari entered into the witness box. In para 5 of the
examination-in-chief though Ramkumari (PW-1) has stated that her
father Gwal married with her mother, wrongly mentioned as Devki Bai,
in chudi form, whereas it should be Milvanteen Bai. As such, the fact of
marriage of Milvanteen Bai with Gwal is not at all established. Therefore,
plaintiff No.2 born with the cohabitation of Gwal with Milvanteeen Bai
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cannot be said to be the illegitimate child for the purpose of Section
16(3) of the Hindu Succession Act, 1956.
7. The Madhya Pradesh High Court in the matter of Reshamlal Baswan vs.
Balwant Singh Jwalasingh Punjabi and Others 1 dealt with the question,
whether illegitimate son is the son within the meaning of Section 8 of
the Hindu Succession Act, 1956. Gulab C. Gupta, J. speaking for the
Madhya Pradesh High Court has clearly held that children born to
married woman from illicit relationship are not entitled to the benefit
under Section 16 of the Act. It was further held that benefit under
Section 16 is available only when there is a marriage, but same is hit by
Section 11. It was observed as under:-
“4. Marriage Laws Amendment Act, 1976 provided
legitimacy to children of a marriage hit by Section 11 of
Hindu Marriage Act. It provides a procedure for getting a
marriage declared void if it contravenes one of the conditions
of Section 5 of the said Act. The conditions under which a
marriage is said to be void are those mentioned in clauses (i),
(iv) and (v) of Section 5 of the said Act. Marriage between
parties having a spouse living at the time of marriage is hit by
this provision. This provision has been interpreted to mean
that there must be a marriage, which would be hit by the
provisions of this Act and would not cover a relationship
resulting from any other arrangement than the marriage.
That is the reason why it has been held in M. Muthayya v.
Kamu and Ors., AIR 1981 NOC 172, that in those cases
where there is no proof of solemnisation of marriage, the
provision in Section 16 is not attracted.
6. The decision of Bombay High Court in Laxmibai’s case
(supra), of course, supports the contention advanced by the
learned counsel for the appellant. The question for
consideration of the court was the impact of Section 16(1)
and 16(3) of the Hindu Marriage Act read with the
provision of Section 8 of the Hindu Succession Act. It has
already been noticed that Section 16 deals with the
offsprings of marriage, which is void. The Court was of the
1 1994 MPLJ 446
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opinion that 1976 amendment of the Hindu Marriage Act
takes away and eclipses general rule that the offspring of a
marriage, which is null and void ipso jure is illegitimate.
According to the Court, this was common law doctrine,
inevitably resulting in the effect of bastardising children and
has been superseded by this provision. Considering the effect
of this amendment, in the context of Section 8, clause (a) of
the Hindu Succession Act, the Court held that illegitimate
children now given legitimacy would be included within the
meaning of ‘son’ and ‘daughter’ in the Schedule to the Hindu
Succession Act. The Court, therefore, held that though the
lady would not be the widow, her sons and daughters would
be included within the meaning of the term in Section 8 read
with the schedule. A close reading of this decision would
indicate that it was the effect of 1976 amendment of Section
16 of the Hindu Marriage Act that made the difference. If
the said amendment had not been there or any particular
case was not governed by the said amendment, the learned
Judge would not have decided in the same manner. Since
1976 amendment does not apply to the facts and
circumstances of the case before this Court, this judgment
cannot be of any help to the appellant. In fact, Dadu v.
Raghunath, AIR 1976 Bombay 176, is the case before the
amendment and holds on a detailed consideration of
provisions, that illegitimate sons even of a Sudra would not
be included within the meaning of the word ‘son’ or
‘daughter’ appearing in Schedule to Hindu Succession Act.
Learned Judge had noticed that before 1956, legitimate
children of a Sudra had enjoyed the status of an heir and,
therefore, it observed surprisingly that an otherwise dynamic
legislation should have extinguished the intestate succession
rights of illegitimate sons of Sudras. Regrettable it may be,
but since it was intended, it should be accepted as our
national discipline. Sentiments howsoever strong cannot
justify transgressing the limits of judicial discipline. This being
a direct case on the point should, if at all, conclude the
matter.
8. Then, it is also not correct to say that the word ‘son’
has not been defined anywhere. It has, of course, not been
defined in the Hindu Succession Act, 1956, but every word
need not be defined in the statute itself. The General
Clauses Act defines ‘son’ and includes only the adopted son.
In case the illegitimate son was also included within this
definition, a corresponding amendment would have been
made in the definition given in the General Clauses Act.
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9. In view of the discussion aforesaid, this Court is unable
to hold that the appellant, even as an illegitimate son is a
‘son’ for purposes of Section 8 read with schedule to the
Hindu Succession Act and, has, therefore, right to succeed to
the properties of late Baswan. In the opinion of this Court,
he is not a ‘son’ within the meaning of the term and,
therefore, not an heir to Baswan. The appeal accordingly
fails and is dismissed, but without any order as to costs.”
8. As such, plaintiff No.2 not being the illegitimate daughter of Gwal
would not succeed to the property of Gwal by virtue of Section 16(3)
of the Hindu Succesion Act, 1956 in absence of proof of marriage of
plaintiff No.1 with Gwal. The argument of Mr. Raja Sharma, learned
counsel appearing for the plaintiffs / appellants herein, that it has been
admitted by defendant No.1 in paragraph 19 of her written statement,
would also be of no use, as though defendant No.1 has said plaintiff
No.2 to be the daughter of Gwal, but it must be pleaded and
established by the plaintiffs that she is even the illegitimate child of Gwal
being born of Gwal Milvanteen Bai out of their wedlock, as such, the
fact of marriage has to be proved, then only she would succeed to the
property of Gwal by virtue of Section 16(3) of the Hindu Succession
Act as she has not pleaded and established. Therefore, plaintiff No.2
having born out of the illicit relationship of Milvanteen Bai with Gwal
with no marriage, would not be a daughter and she would not succeed
to the property of Gwal by virtue of Section 16(3) of the Hindu
Succession Act, 1956.
9. In view of the above, substantial question of law No.1 is answered
accordingly and in view of the submissions of learned counsel for the
parties, substantial question of law No.2 does not deserve to be
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considered. The appeal being devoid of merit is liable to be and is
hereby dismissed. No order as to cost(s).
10. Decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal)
Judge
Soma
