Smt. Kadsi Devi and Another vs Miss Ram Pyari and Others

Bhawani Singh, J.—This appeal is directed against the decision of Additional District Judge, Mandi in Civil Appeal No. 62 of 1990, dated 31st December, 1990. It arises in the following circumstances.

The Plaintiffs filed a civil suit in the trial Court on the ground that Netar Singh, who was working as a driver in the Himachal Road Transport Corporation, Kulu, had been contributing to Contributory Provident Fund and they being the minor daughters, son and window of late Netar Singh, were entitled to succeed to his estate and particularly, the amounts due and payable to Netar Singh in the form of Contributory Provident Fund exgratia grant, gratuity etc. Defendant No. 3 was likely to release the same in favour of Defendants No. 1 and 2 on the basis of succession certificate obtained by them from the Court u/s 372 of the Indian Succession Act. Defendants No. 3 and 4.stated that they had no knowledge whether the Plaintiffs were the children and widow of deceased Netar Singh but on the basis of succession certificate obtained from the Court, they were entitled to the amounts due on account of the death of Netar Singh. Particularly, Defendants No. 1 and 2 had also raised preliminary objections stating that the suit was barred by res judicata and the Plaintiffs had no enforceable cause of action. On merits, the claim of the Plaintiffs to be daughters, son and widow of the deceased, has been denied. The trial Court framed the following issues in this case:

Whether the Plaintiffs are legal heirs and successor - in - interest of deceased Netar Singh as alleged? OPP.

Whether suit is barred by principle of res judicata? OPD 1 and

Whether Plaintiffs have got no enforceable cause of action on file the present Suit? OPD,

Relief.

The trial Court dismissed the suit of the Plaintiffs by decision dated 23rd June, 1990. This decision was assailed before the Appellate Court which set aside the same by the impugned judgment which has been challenged through this Regular Second Appeal.

Shri M.C. Mandhotra and Shri Vijay Thakur assailed the Appellate Court''s judgment on two grounds. The first ground is that the Plaintiffs did not prove the factum of marriage with deceased Netar Singh in accordance with law and the second ground is that Defendant No. 1 was nominated by the deceased as a nominee for receiving the Contributory Provident Fund, in case of the death of the decease before these amounts became payable.

The first question has been examined with a reference to the case file. The factum of marriage has been proved by smt. Shanta Devi widow of Netar Singh by stating that her marriage took place with Netar Singh in a temple at Mandi in the year 1970. In it, relations participated. Seven steps were taken before the sacred fire over there. The marriage has been recorded in Pariwar register where the births of the three children also find mention. The parties had been living together after this marriage and it was out of the wedlock that these children were born. The trial Judge has found that the marriage had taken place between the parties. However, the marriage having taken place during the subsistence of the marriage of Netar Singh with Smt. Kadsi Devi, it was void u/s 11 of the Hindu Marriage Act, 1955 (here - after in short ''the Act''). The finding with respect to the marriage was not assailed before the Appellate Court, When confronted with this situation, learned Counsel for the Appellants had no satisfactory answer to oppose the factum of marriage. Even otherwise, in view of the finding recorded by the trial Court and the same having not been assailed before the Appellate Court and In view of the evidence discussed above, it is held that Smt. Shanta Devi was married to Netar Singh in the year 1970 during the subsistence of earlier marriage with Smt. Kadsi Devi, so the marriage was void in view of Section 11 of the Act. However, the children out of this marriage would be legitimate in view of Section 16 of the Act and entitled to succeed to the estate of the deceased u/s 16 (1) of the Act. (See: Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, Shantaram Tukaran Patil and Another Vs. Dagubai Tukaram Patil and Others, and Mahila Mathuro Bai and Others Vs. Ramwati and Others,

Equally untenable is rendered the second contention of the learned Counsel for the Appellants, since form of nomination (Ext. PC) records Smt. Shanta Devi as nominee of deceased Netar Singh. However, the amounts receivable by the nominee are to be disbursed in accordance with law of succession governing the parties Smt. Sarbati Devi and Another Vs. Smt. Usha Devi, Shaik Dawood and Others Vs. Mahamood Begum and Others, and (Smt. Om Wati v. Delhi Transport Corporation, New Delhi and Ors.) 1988 (1) LIC 500.

In view of the aforesaid discussions, there is no merit in this appeal and the same is dismissed. However, the parties are left to bear their won costs

In view of the dismissal of the appeal, the stay order passed by this Court in C.M.P. No. 20 of 1991, dated 15th January, 1991, is vacated The amounts deposited in the Trial Court as well as in the Appellate Court be disbursed to Smt. Kadsi Devi, Brij Lal, Ram Pyari (minor) Promila (Minor) and Raj Kumar (minor) (minors through their mohter) in equal shares.

Parties are left to bear their own costs.