Lakeshwari Ram vs Ram Kali Devi and Others

R.N. Sahay, J.—This is an appeal u/s 384 of the Indian Succession Act, 1925 from the order of Subordinate Judge-I Palamau dated 7, 8 1992 whereby the applications filed by the Appellant u/s 372 of the Indian Succession Act for grant of succession certificate in respect of debts and securities of late Ram Pati Devi wife of the Appellant has been dismissed.

The Appellant, in his petition impleaded Ram Kali Devi (sister of the deceased), Rambudhi Ram nephew of the deceased and the Branch Manager, State Bank of India.

The deceased was second wife of the Appellant. Late Ram Pati Devi was employed as teacher in the State Primary Girls School at Haidarnagar, district of Palamau. She had deposited substantial amount in her General Provident Fund bearing account No. 4328. She had also opened Savings Bank account bearing A/c No. 522 in the State Bank of India at Haidarnagar Branch. She retired from service on 30.4.1987 and was living with the Appellant. She died on 23.6.1989 due to certain ailments. The Appellant performed her last rites according to the Hindu custom. The Appellant claimed by virtue of Section 15 of the Hindu Succession Act 1956, to be the only heir and legal representative of the deceased Rampati Devi. The Appellant is thus entitled to get money deposited by Rampati Devi which is fully detailed in the schedule of the plaint.

Respondents No. 1 and 2 in their written statement stated that deceased Rampati Devi was not married with the Appellant. She lived at her Naihar in village Bansdih. The Appellant, therefore, is not entitled to get succession certificate. In her Service Book Rampati Devi (deceased) had given her address of her Naihar. She had deposited some amount in her name at Haidarnagar State Bank of India and in the ledger she has given the name of her sister Ramkali Devi and Nephew Rambudhi Ram i.e. Respondent Nos. 1 and 2. As such the Respondent Nos. 1 and 2 are entitled to receive the money. In the Provident Fund Account Ramapati Devi (deceased) had nominated her sister Ramkali Devi and nephew Rambudhi Ram. In this way, the Respondent Nos. 1 and 2 are alone entitled for the amounts in the G.P. Fund and State Bank.

The learned Subordinate Judge (District Delegate) Palamau has considered the oral and documentary evidence and has given finding that Rampati Devi was married wife of the Appellant. The Subordinate Judge, however, held that the Appellant marriage with Rampati Devi was void be cause the first wife of the Appellant namely Jaimurti Devi was alive at the time of marriage. The deceased in her service book and in G.P.F. account and even in Bank Account made the Respondents as nominees to receive the amount deposited by her after her death. Hence the Appellant has not entitled to get succession certificate.

The learned Counsel for the Appellant submitted that the District Delegate has no jurisdiction to pronounce upon this validity of the marriage as only a court under the Hindu Marriage Act or a civil court has jurisdiction to pronounce upon validity of the marriage.

In Smt. Sheel Wati Vs. Smt. Ram Nandani, , Deoki Nandan, J. of the Allahabad High Court held "A marriage though null and void for contravening any of the conditions prescribed by Clauses (i), (iv) and (v) of Section 5 has yet to be regarded as a subsisting fact and it cannot be said to be wholly nonest in law or a nullity so long as it is not declared to be null and void by a decree of nullity of the District Court on a petition presented by either party thereto against the other party to the marriage. No third person can (sic) the marriage to be void or have it adjudicated to be null and void in any other suit or proceeding unless it has already been declared to be so by a decree of nullity of a District Court in accordance with the procedure prescribed by and under the Act; the only exception being the case where the aggrieved spouse of the first marriage on account of whose being alive the second marriage is void prosecutes the other spouse for being punished for bigamy u/s 406 or 495 of I.P.C. read with Section 17 of the Act or the case where the aggrieved spouse prosecutes the guilty spouse for a contravention of Clauses (iv) and (v) of Section 5 u/s 18(b). In Paramasami Pillai Vs. Sornathammal and Others, , Alagiriswami, J of the Madras High Court has observed "under the ordinary law of contract if the contract is void, it could be so treated and any other remedy sought without having to set aside that contract. But in respect of marriages even when the marriage is null and void it cannot be so held at the instance of third parties; a declaration of nullity can be asked for only by either party to the marriage and in any case after the death of one of the parties nobody can question the validity of the marriage. Nor can any relief be asked for on the basis that the marriage does not subsist. So resort to a court is necessary to declare a marriage null and void and no relief can be claimed without asking for such a declaration."

In Smt. Ram Pyari Vs. Dharam Das and Others, wife of deceased applied for grant of succession certificate in respect of assets of her husband, objections were raised by kith and kins of the deceased that the applicant was not legally married wife of the deceased, K.C. Agrawal, J., observed that there is inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may at one''s peril bring a suit of one''s choice. A suit for its maintainability requires no authority in law. It is now enough no statute debars the suit. In Smt. Ganga Bai Vs. Vijay Kumar and Others, it was held that not only the first wife but also anyone who is affected by the marriage performed in contravention of Clauses (i), (iv) and (v) of Section 5 of Hindu Marriage Act would be entitled to bring the civil suit. In R. v. Algar (1953) 2 All ER 1381 , a distinction between a void and voidable marriage has been brought about and it has been laid down that a void marriage has no existence in the eye of law. In Mst. Mundaria and Others Vs. Rai Shyam Sundar Prasad and Others, it was held that it was clear from the scheme of the Hindu Marriage Act that a party to the marriage in respect of which no decree for nullity could be granted under the Hindu Marriage Act could seek his remedy under the general law.

In Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, , the Hon''ble Supreme Court has held that the marriages covered by Section 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. In view of the decision of the Supreme Court it must be held the question of validity of the marriage can be gone into in a colateral proceeding and it is not necessary for the party objecting to the marriage to seek a declaration before a Civil Court.

The Appellant therefore, is disentitled for grant of succession certificate because according to the finding his marriage with deceased Rampati Devi was nullity. The Subordinate Judge has held that during her life time the deceased has made Respondent Nos. 1 and 2 hen nominee in G.P.F. A/c and also Bank Account. Section 5(1) of the Provident Funds Act, 1925 provides:

Notwithstanding anything contained in any law for the time being in force or in any disposition, whether testamentary or otherwise by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, where any nomination, duly made in accordance with the rules of the fund purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor occurring before the sum has become payable or before the sum, having become payable, has been paid, the said person shall, on the death as aforesaid of subscriber or depositor, become entitled to the exclusion of all other persons, to receive such sum or part thereof, as the case may be unless--

(a) such nomination is at any time varied by another nomination made in like manner or expressly cancelled by notice given in the manner and to the authority prescribed by these rules, or

(b) Such nomination at any time becomes invalid by reason of the happening of some contingency specified therein, and if the said person predeceases the subscriber or depositor, the nomination shall so far as it relates to the right conferred upon the said person, become void and of no effect:

Provided that where provision was duly made in the nomination in accordance with the rules of the Fund, conferring upon some other person such right in the stead of the person deceased, such right shall upon the decease as aforesaid of the said person pass to such other person.

The Appellant is, therefore, not entitled to certificate on this score also. This appeal must fail and is dismissed.