Premwati vs State of Haryana and Others

Ritu Bahri, J.—The present regular second appeal is directed against the judgment and decree dated 19.04.2007 passed by Addl. District Judge Sonepat whereby the judgment and decree dated 23.08.2006 passed by learned Addl. Civil Judge (Sr. Divn.) Gohana was set aside.

Plaintiff-appellant (herein after to be referred as ''the appellant'') filed a suit for mandatory injunction claiming herself to be the co-widow of deceased Dharam Dutt sought directions to respondent Nos. 1 to 3 to grant her pensionary benefits upon the demise of her husband in equal shares with that of Smt. Jallo, the another widow of deceased Dharam Dutt.

The case put-forth by the appellant is that the husband of the appellant, Dharam Dutt had two wives, i.e the present appellant and respondent No. 4(since deceased) and he retired from service from Education Department and it is alleged that he executed a registered will on 27.07.1991, which shows that appellant is also one of his wife and thus, she is entitled to family pension, as per Rule 6(17) Note-I of Punjab Civil Services Rule and as per Section 10, Rule 1 of the Hindu Succession Act, where if a person dies, then his movable or immovable property shall be inherited by his two widows in equal shares, if he happened to die surviving the two widows.

On notice, respondent Nos. 1 and 3 appeared and filed their joint written statement wherein they have taken few preliminary objections to file the present suit. On merits, it is admitted that Dharam Dutt served in the Education Department and he attained superannuation in the year 1991. However, he never submitted any document to the effect that he had two wives, because in the pension papers, he showed Smt. Jallo, respondent No. 4 to be his only wife. The list of family members as submitted by him, did not include the name of the appellant.

Respondent No. 4 did not appear and was proceeded ex parte but during the pendency of the suit, she died. Vide order dated 22.08.2005, an application was moved by the appellant for impleading her Lrs on record was allowed to the effect that appellant was exempted to implead Lrs of respondent No. 4 under order 32 Rule 4(4) CPC. Thus, the Lrs were not allowed to be impleaded.

From the pleading of the parties, following issues were framed by the trial Court--

"1. Whether the plaintiff is entitled to decree for mandatory injunction, as prayed for? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff is estopped from filing the present suit? OPD

Relief."

The trial Court after going through the entire evidence led by the parties, held that the respondents have not denied that the appellant is not the co-widow of deceased Dharam Dutt. D.W.1 Rajpal, Clerk in his cross examination has admitted the entire case of the appellant. He admitted that the appellant before institution of the suit served a legal notice. In the voter list, the name of the appellant is enrolled at Sr. No. 684 and in the ration card, she is enrolled as wife of Dharam Dutt Shastri. He admitted that Dharam Dutt had executed a will on 22.01.1991 and as per that the appellant and Smt. Jallo were his two widows and by dint of the aforesaid will, the mutation No. 197 was effected. He further admitted that Smt. Jallo expired on 02.06.2005. Ram Pal was born from the loins of deceased Dharam Dutt and appellant and he further admitted that Smt. Suman, Bimla, Kalawati and Sushila were not recorded in record being daughters. He further stated that it was Dharam Dutt who gave wrong information to the department. The aforesaid admissions are supported with the documents led by the appellant i.e the copy of voter list Ex. PW4/1 shows that at Sr. No. 684 the name of appellant is enrolled being wife of Dharam Dutt and the house number shown is 1999 and at the same house, respondent No. 4 Jallo is also shown as wife of Dharam Dutt. Rampal and Rakesh are also shows as the sons of deceased Dharam Dutt. This document need to be read in conjunction with mutation No. 2174 Ex. PW4/1 of the estate of deceased Dharam Dutt. Thus by dint of his will dated 22.01.1991, he bequeathed his property in favour of both of his sons Rampal and Rakesh. Ex. PW/B is the copy of the application for preparation of ration card.

Reference was made to para No. 6.17 sub-rule IV note 1, chapter VI under titled Family Pension Scheme of Punjab Civil Rules, Volume II to see that whether deceased Dharam Dutt was competent under the law to have two wives. The above said rule reads as under:--

"When a government employee is survived by more than one widow, the pension will be paid to them in equal share. On the death of a widow, her share of the pension will become payable to her eligible minor child, if at the time of her death, a widow leaves no eligible minor child, the payment of her share of pension will cease."

The said note needs to be read harmoniously in conjunction with Rule-1 of Section 10 of the Hindu Succession Act, 1956, which reads as under:--

"Distribution of property among heirs of class I of the schedule heirs in class I of the schedule, the property of an intestate shall be divided among the heirs in class I of the schedule in accordance with the following rules--

Rule 1: The intestate''s widow or if there are more than one widow, all the widow together, shall take equal share."

As per the above said Rules, the appellant being the co-widow of deceased Dharam Dutt was entitled to succeed to the pensionary benefits of her deceased husband along with Smt. Jallo, respondent No. 4 (since deceased).

The trial Court decreed the suit in favour of the appellant by directing respondent Nos. 1 to 3 to award the family pension to the appellant to the extent of 1/2 share being the co-widow of deceased Dharam Dutt w.e.f the date of filing of the suit and with regard to the fact that the suit is barred by limitation as Dharam Dutt died in the year 1993 and the suit was filed in the year 2003, the trial Court held that respondent Nos. 1 to 3 were duty bound to release the monthly pension of Dharam Dutt in favour of the appellant to the extent of 1/2 share. Thus, the suit was held to be not barred by limitation.

Feeling aggrieved against the order passed by the trial Court, the respondents preferred an appeal, which was also allowed and the findings given by the trial Court were reversed.

The lower Appellate Court has referred to Section 5 of the Hindu Marriage Act where a marriage may be solemnised between any two hindus, if the following condition is fulfilled namely neither party has a spouse living at the time of the marriage and further as per Section 11 of the Hindu Marriage Act if any marriage solemnized after the commencement of this act, it shall be null and void and may, on a petition presented by either party thereto (Against marriages, the other party) be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause I, IV and V of Section 5.

A co-joint reading of the above provisions makes it clear that any marriage solemnized after the commencement of Hindu Marriage Act shall be null and void. Jallo i.e first wife of Dharam Dutt expired in the year 2005, thus, she was alive when her husband performed second marriage with the appellant, which is null and void as per the above provisions. The appellant does not derive the status of legally wedded wife of Dharam Dutt and cannot claim the family pension. The lower Appellate Court held the suit to be barred by limitation as well.

The following substantial question of law are framed for consideration before this Court--

"whether a widow who is married during the life time of first wife, is entitled to family pension in accordance with the Family Pension Rules?"

Reference at this stage can be made to a judgment of Hon''ble the Supreme Court in a case of Rameshwari Devi Vs. State of Bihar and others, AIR 2000 SC 735 : (2000) 1 DMC 164 : (2000) 85 FLR 174 : (2000) 1 JT 328 : (2000) 1 LLJ 1087 : (2000) 1 SCALE 262 : (2000) 2 SCC 431 : (2000) SCC(L&S) 276 : (2000) 1 SCR 390 : (2000) AIRSCW 273 : (2000) 1 Supreme 385 was examining a case of a family pension and death cum retirement gratuity to two wives of Narain Lal who died in 1987. It was held that second wife''s right to succession is not recognized. However, the children from the second wife are considered to be legitimate entitled to succeed to the estate of their father. Second wife cannot be considered even widow of a person who married her during the life time of his earlier wife. For the purpose of grant of service benefits of a deceased employee to his defendants/legal heirs, the departmental authorities can make an enquiry independently even if the parties do not get a declaration as to their status from the civil court and can grant the proportionate benefits accordingly. If material facts and evidence has been taken into consideration by the authority for that purpose, no defect can be found merely on the ground of want of jurisdiction. In para 12, 13 and 14 it has been observed as under:--

"12. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties. That would certainly be a long drawn affair. Doors of civil courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has to be taken in a bona fide reasonable and rational manner. In the present case an inquiry was held which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under Section 494 IPC strict proof of solemnisation of the second marriage with due observance of rituals and ceremonies has been insisted upon.

It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this 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 (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.

Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a civil court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no civil court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, W/o. Sri S.N. Sinha, ADM and others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal."

Hon''ble the Supreme Court was examining a case of Vidyadhari and Others Vs. Sukhrana Bai and Others, AIR 2008 SC 1420 : (2008) 105 CLT 833 : (2008) 1 SCALE 582 : (2008) 2 SCC 238 : (2008) 1 SCC(L&S) 451 : (2008) 1 UJ 224 : (2008) AIRSCW 910 : (2008) 1 Supreme 460 wherein a legally wedded wife was living separately. Husband contracted second marriage during subsistence of first marriage and begetting children. Second marriage is void. Husband nominated second wife for pension, provident fund and other benefits. Second wife though not legally wedded wife would be entitled to get succession certificate to obtained said benefits. In para 10 and 11, it has observed as under:--

"10. However, unfortunately, the High Court stopped there only and did not consider the question as to whether inspite of this factual scenario Vidhyadhari could be rendered the Succession Certificate. The High Court almost presumed that Succession Certificate can be applied for only by the legally wedded wife to the exclusion of anybody else. The High Court completely ignored the admitted situation that this Succession Certificate was for the purposes of collecting the Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues in the nature of death benefits of Sheetaldeen. That Vidhyadhari was a nominee is not disputed by anyone and is, therefore proved. Vidhyadhari had claimed the Succession Certificate mentioning therein the names of four children whose status as legitimate children of Sheetaldeen could not be and cannot be disputed. This Court in a reported decision in Rameshwari Devi case (supra) has held that even if a Government Servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. It was, therefore, bound to be considered by the High Court as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimately file an application for Succession Certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Indian Succession Act as there is nothing in that Section to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his life-time. In her application Vidhyadhari candidly pointed out the names of the four children as the legal heirs of Sheetaldeen. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for long time and was a person of confidence for Sheetaldeen who had nominated her for his Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the Succession Certificate to the exclusion of legal heirs of Sheetaldeen. In the grant of Succession Certificate the court has to use its discretion where the rival claims, as in this case, are made for the Succession Certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukhrana Bai was the legally wedded wife that by itself did not entitle her to a Succession Certificate in comparison to Vidhyadhari who all through had stayed as the wife of Sheetaldeen, had born his four children and had claimed a Succession Certificate on behalf children also. In our opinion, the High Court was not justified in granting the claim of Sukhrana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs.

Therefore, though we agree with the High Court that Sukhrana Bai was the only legitimate wife yet, we would chose to grant the certificate in favour of Vidhyadhari who was his nominee and the mother of his four children. However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen estate which would be 1/5th. To balance the equities we would, therefore chose to grant Succession Certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give a security in the Trial Court to the satisfaction of the Trial Court."

Recently Hon''ble the Supreme Court in a case of Dhannulal and Others Vs. Ganeshram and Others(2015) 5 AD (SC) 79 : (2015) 3 ADJ 697 : AIR 2015 SC 2382 : (2015) 3 AJR 329 : (2015) 4 ALD 120 : (2015) 4 ALLMR 917 : (2015) 110 ALR 215 : (2015) 4 AWC 3539 : (2015) 3 CGLJ 50 : (2015) 3 CTC 222 : (2015) 2 JLJR 547 : (2015) 3 MLJ 635 : (2015) 3 PLJR 110 : (2015) 2 RCR(Civil) 701 : (2015) 128 RD 133 : (2015) 4 SCALE 613 : (2015) 6 SCJ 390 was examining the issue where the husband after the death of his first wife started living with another women in joint family. A son was born to them. There is strong presumption in favour of the validity of the marriage and the legitimacy of its child for the reason that the relationship of both were recognized by all persons concerned. In para 13, 14 and 15, it has been observed as under:--

"13. In the case of Andrahennedige Dinohamy and another vs. Wijetunge LiyanapatabendigeAIR 1927 185 (Privy Council) , it was held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. The Court observed as follows--

"The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife, and children, The evidence'' of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess-all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody."

In the case of Thakur Gokalchand Vs. Parvin Kumari, AIR 1952 SC 331 : (1952) 1 SCR 825 , this Court observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. In the instant case, instead of adducing unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to prove the fact that Phoolbasa Bai was the legally married wife of Chhatrapati. The High Court, therefore, came to a correct conclusion by recording a finding that Phoolbasa Bai was the legally married wife of Chhatrapati."

Recently, a Co-ordinate Bench of this Court in a case of Nasib Kaur Vs. State of Punjab and Others, (2014) 173 PLR 840 : (2014) 2 SCT 84 while examing the provisions of rule 6.17 of the Punjab Civil Services Rule, Vol II has held that the death of an employee who had two wives but the first wife pre-deceased the husband, the second wife is entitled to complete family pension. She would furnish an affidavit to authority that she is the sole surviving widow and there is no other claimant. In para 6 and 7, it has been observed as under:--

"6. Considering the facts in their totality, I am of the view that the specific averment of the petitioner regarding the first wife having predeceased her husband should be accepted. The petitioner would be entitled to complete family pension if she would furnish an affidavit to the respondents that she is the sole surviving widow and there is no other claimant.

The petition is allowed in the aforesaid terms and the petitioner is held entitled to the complete family pension, which benefits shall be released to her as expeditiously as possible, preferably within a period of two months from the date of receipt of certified copy of the order. Since there is no representation on behalf of the petitioner, copy of the order is directed to be despatched to the petitioner."

Hon''ble the Meghalaya High Court in a case of Renu Thapa Vs. The North Eastern Electric Power Corporation Limited, (2014) LabIC 2891 was examining a case of family pension where deceased had two wives and both agreed to decide the amount of pension. Pension papers under law cannot be prepared in the names of two widows. Directions were issued to the department to prepare pension paper in the name of first wife of the deceased and the first wife was directed to deposit Rs. 1500/- per month in the bank account of second wife as agreed upon them under a deed of settlement. Rest of the amount of terminal benefits of deceased ordered to be paid 50:50 to both of them.

In the present case, as per copy of voter list Ex. PW4/1 it shows that at Sr. No. 684 the name of appellant is enrolled being wife of Dharam Dutt and the house number shown is 1999. The appellant is the second wife of deceased Dharam Dutt and she had married to the appellant during the life time of first wife. During the pendency of the suit, respondent No. 4 Jallo first wife of the appellant died and the trial Court decreed the suit in favour of the appellant by directing respondent Nos. 1 to 3 to award the family pension to the appellant to the extent of 1/2 share being the co-widow of deceased Dharam Dutt w.e.f the date of filing of the suit.

Applying the ratio of the above mentioned judgments, the present appeal is allowed and judgment and decree dated 19.04.2007 passed by Addl. District Judge Sonepat is set aside and judgment and decree dated 23.08.2006 passed by learned Addl. Civil Judge (Sr. Divn.) Gohana is modified to the extent that the appellant is entitled to the complete family pension w.e.f the date of death of Jallo i.e. 02.06.2005 along with 9% interest.