Aruna Gautam Kamble And Another vs Head Master Rampratap Malpani ...
2023 Latest Caselaw 10078 Bom

2023:BHC-AUG:21473

                                                   1                               CRA-53-22.odt




                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                      CIVIL REVISION APPLICATION NO.53 OF 2022
                WITH CIVIL APPLICATION NO. 2799 OF 2022 IN CRA/53/2022

                1.      Smt. Aruna Gautam Kamble,
                        Age 34 years, Occu. Household,
                        R/o. Dr. Ambedkar Nagar, Nanded

                2.      Kum. Sneha Gautam Kamble,
                        Age 17 years, Occu. Nil,
                        Minor, under guardian of applicant No.1
                        (mother)                                ..          Applicants
                                                                       (Original Petitioners)
                                          Versus

                1.      Head Master,
                        Rampratap Malpani Mukbadhir Vidyalaya,
                        Maganpura, Nanded

                2.      Life Insurance Corporation of India
                        Through its Devisional Manager,
                        Yogksham Building, Gandhi Nagar, Nanded

                3.      PACL India Ltd.,
                        22, 3rd Floor, Ambar Tower,
                        C/o. Gurukripa Market, 1st Floor,
                        Mahaveer Chowk, Nanded

                4.      Seema Gautam Kamble,
                        Age 37 years Occu. Household,
                        R/o. Dr. Ambedkar Nagar, Nanded

                5.      Ku. Megha Gautam Kamble,

                6.      Subodh Gautam Kamble,

                7.      Jay Gautam Kamble,

                        Respondent Nos.5 to 7 Minor,
                        Occu. Education

                8.      Ajay Gautam Kamble,
                        Age Minor, Occu. Education

                        Respondents Nos.5 to 8 under guardian
                        of their real mother respondent No.4  ..            Respondents
                                                                    (Original Respondents)




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Mr. Ravindra B. Ade, Advocate for applicants;
Mr. A. N. Subnis, Advocate for Respondent No.1;
Mr. Girish S. Rane, Advocate for Respondent No.2;
Mr. Shailendra Gangakhedkar, Advocate for Respondent No.4

As per Orders dated 19.06.2023 and 08.07.2023, respondent No.3
is deleted.

                                            CORAM:          S. G. MEHARE, J.

Reserved on : 12-09-2023 Pronounced on : 03-10-2023

JUDGMENT:-

1. Heard finally by consent of the learned counsels for the

parties.

2. The applicants have impugned a common judgment and

order dated 09.06.2020 of the learned Principal District Judge,

Nanded, passed in Regular Civil Appeal No.33 of 2014 filed by the

applicants and Regular Civil Appeal No.18 of 2014 filed by the

respondents.

3. The applicants and respondents are claiming the heirship/

successor of Gautam Kambale.

4. The brief facts of the case as averred in the application were

that applicants Aruna and Sneha had applied Section 372 of the

Indian Succession Act (for short, "said Act"), which was registered

as Miscellaneous Application (Misc.R.J.E.) No.21 of 2007 before the

learned Civil Judge Senior Division, Nanded, claiming that

deceased Gautam Kamble solemnized marriage with Aruna on

14.09.1996. Out of their wedlock, they were blessed with daughter

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Sneha on 21.06.2003. Deceased Gautam was a teacher. He died

on 20.12.2006 in a motor vehicle accident. Respondent No.9 was

the mother of the deceased. However, she died during the

application. Instead of bringing her legal heirs as provided under

Section 15 of the Hindu Succession Act, her name was deleted.

Respondent No.4 claimed to be the legally wedded wife, and

respondents nos. 5 to 8 claimed to be the legitimate sons and

daughters of Gautam Kamble.

5. Respondent Seema claimed that she married deceased

Gautam on 15.07.1994. Her maiden name was Sakhu, and the

deceased named her Seema. Out of their wedlock, she delivered a

daughter and three sons. At the time of filing the application, they

were minors.

6. Both parties have produced evidence in support of their

contention. Appreciating the evidence, the learned Civil Judge

Senior Division believed that the marriage of petitioner Aruna was

after the marriage of respondent No.4 Seema with Gautam.

However, the learned Civil Judge held that daughter Sneha

begotten to Aruna was a daughter of deceased Gutam, and she

was the legitimate child and had the right to the property of her

father and granted a succession certificate in favour of petitioner

No.2 Sneha and respondents No.4 to 8.

7. In appeals preferred by both parties, the learned Principal

District Judge, Nanded, held that Smt. Aruna failed to prove that

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she was the legally wedded wife of Gautam Kamble and also held

that Sneha was a daughter of the late Gautam but an illegitimate

child and set aside the succession certificate directed to be issued

in her favour and respondents No.4 to 8 were held eligible to

inherit the debts. Against the said order, Aruna and Sneha are

before the Court.

8. It was a defence of respondent Seema that Aruna married

one Govind Kamble, and her marriage was subsisting. She had a

specific case that on the alleged date of marriage of applicant

Smt Aruna, deceased Gautam was on duty. Hence, their marriage

was not performed. Therefore, Sneha was not even an illegitimate

child.

9. The learned Principal District Judge disbelieved the oral as

well as documentary evidence of the Applicant Smt Aruna and also

disbelieved that she and deceased Gautam were living under one

roof as husband and wife and held that considering the

inconsistent evidence of the petitioner Aruna and her father with

full of material contradictions failed to prove that Smt Aruna is the

legally wedded wife of late Gauratm. She failed to establish her

marital relations with deceased Gautam Kambale. However, he

recorded the findings that her daughter Sneha cannot be said to

be presumed to be the daughter of deceased Govind Kambale, her

first husband. It has been further held that if the oral as well as

documentary evidence, as pointed out above, are considered, then

there is a reason to believe that there was some sort of

5 CRA-53-22.odt

relationship between Smt Aruna and deceased Gautam Kambale.

Also, there was no reason for the hospital authority to incorporate

the name of the petitioner as the wife of Gautam Kambale. All

documents are prepared or came into existence during the lifetime

of the deceased Gautam Kambale. Therefore, there is reason to

believe that ku. Sneha was born out of the relationship between

Smt Aruna and Gautam Kambale. It has been further held that

when petitioner Smt Aruna failed to prove her status as the legally

wedded wife of the late Gautam Kambale, the status of Kum Sneha

was the illegitimate daughter of Gautam Kambale.

10. The learned counsel for the applicant has vehemently

argued that in view of the latest judgment of the Hon'ble Supreme

Court, in the case Revanasiddappa and another Versus

Mallikarjun and others, Civil Appeal No.2844 of 2011, along with

other civil appeals, dated 1 September 2023, it has been held that

in terms of sub-section (1) of Section 16 of the Hindu Marriage Act

(in short, "H.M.Act"), a child of a marriage which is null and void

under Section 11 is statutorily conferred with legitimacy

irrespective of whether (i) such a child was born before or after

commencement of Amending Act 1976; (ii) a decree of nullity is

granted in respect of that marriage under the Act and the

marriage is held to be void otherwise than a petition under the

enactment.

11. He argued that the learned Principal District Judge had

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misconceived the facts and evidence and recorded the

contradictory findings. On the one hand, he believed the birth of

Sneha out of the relationship between Smt Aruna and the

deceased Gautam Kamabale and held her illegitimate child. On the

other, she is held not entitled to pensionary benefits as a pension

is not an estate or property, as held by the High Court in the case

of Drupada Pawar. He has emphasized mainly the marriage of

Smt. Aruna with deceased Gautam. Even if the marriage of Smt

Aruna and deceased Gaurtam Kambale was held void, the right to

inherit the debts of deceased Gautam accrued to her daughter

Sneha cannot be denied. To bolster his arguments, he relied on the

case of Rameshwar Devi v State of Bihar and others (2000)

2 SCC 431.

12. On the contrary, the learned counsel for the respondents

would submit that the learned Principal District Judge correctly

recorded the findings that the marriage of Smt Aruna and

deceased Gautam Kambale was not proved. Since there was no

marriage, void or null, between Smt Aruna and Gaurtam Kambale,

the child born out of such marriage has no right to inheritance. The

proceeding under Section 372 of the said Act does not cease the

rights of the parties to prove their civil rights. The Succession

Certificate has been correctly issued in the names of the

respondents. No harm has been caused to the applicant by merely

issuing the certificate in their favour. He has vehemently argued

that the paternity of the child was heavily questioned; therefore,

7 CRA-53-22.odt

the child cannot be held legitimate under Section 16 of the Hindu

Marriage Act. Unless the competent Court decides her paternity,

she would not be entitled to any such certificate. He further

argued that the access between deceased Gautam Kamble and

Smt Aruna has also not been proved; hence, the presumption of a

child born out of wedlock under Section 112 of the Indian Evidence

Act has been rebutted. The succession certificate under Section

372 of the Indian Succession Act does not establish the title of the

grantee as the heir of the deceased but only furnishes him with

the authority to collect his debts and allow the debtors to make

payment without incurring any risk. In other words, he meant to

say that the civil rights of the parties under Section 372 of the

Indian Succession Act would not be taken away. The party

concerned can move the competent Court of the Law to establish

his/her civil rights. He relied on the case of Banarasidass v

Teeku Dutta (Mrs) and another (2005) 4 SCC 449.

13. The root question that falls for consideration is whether the

birth of a child out of the relationship between male and female

having a spouse alive and without prima facie proving they

performed the marriage, is an illegitimate child and entitled to get

the Succession Certificate under Section 372 of the Indian

Succession Act.

14. The material on record prima facie indicates that at the

time of the alleged marriage of Smt Aruna and deceased Gautam

Kambale on 14,02.1996, both had a spouse living at the time of

8 CRA-53-22.odt

the said marriage. The so-called marriage ceremony of their

marriage has been disbelieved. The learned Principal District Judge

held that their marriage had not been proved as the evidence

produced could not be believed. He also held that the daughter of

Smt Aruna is an illegitimate child. She cannot be a member of the

Family under Rule 9(16) of the Maharashtra Civil Services (General

Condition of Service) Rules ("M.C.S.Rules", for short). Therefore,

the daughter Kum. Sneha being an illegitimate child, is certainly

not entitled to pensionary benefits, as pension is not an estate or

property as held by the Bombay High Court in Drupada @

Drupatabai Jaydeo Pawar and Ors V Indubai d/o Kashinath

Shivram Chavan, 2017 (1) All M.R. 197.

15. Before adverting to the entitlement of pension under the

M.C.S. Rules to Kum Sneha, the Court feels it appropriate to

discuss her recognition under law out of the relationship between

her biological parents, who had a spouse living at the time of their

alleged marriage.

16. Admittedly, the biological parents of Kum. Sneha were

governed under the H. M. Act. A valid and invalid marriage

between two opposite sexes of Hindus has been recognized as per

the provisions of the H.M.Act. The conditions for valid marriage

have been provided under Section 5 of the H.M.Act. Any marriage

in contravention of the conditions of the said Section is not legally

recognized. Herein the case, we are concerned with clause (i) of

the said Section. For the legal validity of the marriage, it is

9 CRA-53-22.odt

required to be solemnized in accordance with the customary rites

and ceremonies of either party thereto as per Section 7 of the

H.M.Act. However, the rights of a child born of void marriage have

been protected under Section 16 of the H.M.Act.

17. Marriage ceremonies are normally done in the presence of

the people of the caste, relatives, friends and neighbours at the

heavy expense of the parents of both sides or by themselves. Such

ceremonies give social recognition to the marriage. Besides these,

certain religious rituals as per the custom or socially recognized

practice are performed in the presence of the invitees to the

marriage ceremony. In short, it may be stated that there should be

some sort of evidence that they both have accepted them as

husband and wife in the presence of someone after the ceremony.

Except for the ceremony of the marriage, the marriages are

performed under the Marriage Registration Act. Again, such

registration creates evidence that the parties to the marriage

accepted the marital tie. After the marriage, which is performed

mainly for the reproduction of a human, their social recognition is

to be accepted by society. For the social recognition of a child, we

have many after-birth ceremonies. Again, it is evidence of

accepting the child as legitimate. Every marriage regulates the

rights of inheritance of the wife and the children. Marriage is

acceptance of the liability of the spouse till the last breath with

assurance of maintenance during and after the life of the husband

subject to certain conditions. The marriage shall be solemnized

10 CRA-53-22.odt

with ceremonies as provided under H. M. Act for such benefits. M.

Act. The child born out of such a legally valid marriage gets the

recognition of legitimacy. Any marriage violating the conditions of

the H.M.Act is voidable and can be declared null and void.

18. The question here was a little bit different. The petitioner,

Smt. Aruna failed to prove the ceremonies of the marriage. Hence,

her marriage with the deceased Gautam Kambale has been held

not proven. However, it has been proved that Kum Sneha was born

out of their relationship. There was no contrary evidence that

during the lifetime of the deceased Gautam Kambale, he had

disputed the paternity of Kum Sneha. The delivery papers

establish that his name was shown as the biological father of Kum

Sneha. The birth certificate issued by the Government Hospital is

admissible under Section 35 of the Indian Evidence Act. So, prima

facie, it is evident that the deceased Gautam Kambale was her

biological father.

19. The question remains whether, in the absence of the proof of

marriage ceremony, the relationship between petitioner Smt Aruna

and deceased Gautam Kambale was marital or otherwise. Marriage

is a precondition for a child to claim inheritance. The legitimacy of

a child is to be believed on the proof of legal and valid marriage

and the rights of a child born of void marriage, which is in violation

of the conditions of Section 5 of the H. M. Act. The common thread

for the legitimacy and illegitimacy of a child is 'marriage'. The

legitimacy of a child born of void marriage is governed under

11 CRA-53-22.odt

section 16 of the H.M.Act.

20. Recently, the rights of a child born of void marriage, which

was referred to the larger bench in the case of Ravanasiddapa

and Anr V Mallikarjun and Ors, has been answered by the

larger bench of the Hon'ble Supreme Court in Civil Appeal No.

2844 of 2011 dated September, 01. 2023. The conclusion relevant

to the reference in paragraph K of the pronouncement, which may

be related to this case, is reproduced as follows;

"(i) In terms of sub-section (1) of Section 16, a child of a marriage which is null and void under Section 11 is statutorily conferred with legitimacy irrespective of whether (a) such a child is born before or after the commencement of Amending Act 1976;

(ii) a decree of nullity is granted in respect of that marriage under the Act and the marriage is held to be void otherwise than on a petition under the enactment;

(iii) While conferring legitimacy in terms of sub-section (1) on a child born from a void marriage and under sub- section (2) to a child born of a voidable marriage which has been annulled, the legislature has stipulated in sub- section (3) of Section 16 that such child will have rights to or in the property of the parents and not in the property of any other person"

21. It has been held in clause (ix) of the above pronouncement

that for the purpose of ascertaining the interest of a deceased

Hindu Mitakshara coparcener, the law mandates the assumption of

a state of affairs immediately prior to the death of the coparcener

namely, a partition of the coparcenary property between the

12 CRA-53-22.odt

deceased in property between the deceased and other members

of the coparcenary Once the share of the deceased in property

that would have been allotted to him if a partition had taken place

immediately before his death is ascertained, his heirs including the

children who have been conferred with legitimacy under Section

16 of H.M.A. 1955, will be entitled to their share in the property

which would have been allotted to the deceased upon the notional

partition, if it had taken place.

22. In clause (vi) of the above paragraph K, it has also been

clarified that in terms of sub-section (3) of Section 6 of the Hindu

Succession Act w.e.f. 9 September 2005 as amended, on a Hindu

dying after the commencement of the Amending Act of 2005 his

interest in the property of a Join Hindu family governed by

Mitakshara law will devolve by testamentary or intestate

succession, as the case may be, under the enactment and not by

survivorship. As a consequence of the substitution of Section 6,

the rule of devolution by testamentary or intestate succession of

the interest of a deceased Hindu in the property of a Joint Hindu

family governed by Mitakshara law has been made the norm.

23. In clause (x) of paragraph K, it has been held that the

provisions of the Hindu Succession Act 1956 have to be

harmonized with the mandate in Section 16 (3) of H.M.A., which

indicates that a child who has been conferred with legitimacy

under sub-section (1) and (2) will not be entitled to rights in or the

property of any person other than the parents. The property of the

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parent, where the parent had an interest in the property of a Joint

Hindu family governed under the Mitakshara law has to be

ascertained in terms of the Explanation to sub-section (3), as

interpreted above.

24. This Court is exercising the powers under the Indian

Succession Act. The jurisdiction of the Court under Section 372 of

the Indian Succession Act is limited. In the case of Banarasidass

cited above, it has been held that it only furnishes the grantee

with the authority to collect the debts of the deceased and allows

the debtor to make the payments to him without any risk. Thus,

the object of the said certificate is to facilitate the collection of

debts, to regulate the administration of succession and to protect

persons who deal with the alleged representatives of the

deceased.

25. The proceeding under Section 372 of the Indian Succession

Act is a summary proceeding. Section 386 of the above Act

provides for the effect of the decision under the said Act and the

liability of the holder of the certificate issued thereunder. The

decision taken under the said Act does not bar the trial of the

same question in any suit or in any other proceeding between the

same parties and would not affect the liability of any person who

may receive the whole or any part of the debt or security or any

interest or dividend on any security to the account therefor to the

person lawfully entitled thereto. The provision indicates that any

issue as to the legitimacy decided under Section 372 or any other

14 CRA-53-22.odt

Section under the said Act is subject to the dispute in a suit or any

other proceeding between the same parties and would be decided

by the competent Court of the law.

26. In the light of the above provisions, the petitioner has a right

to prove her marriage by a separate suit. However, in a summary

proceeding, it has been prima facie observed that there was no

evidence to believe that the marriage of petitioner Smt Aruna and

the deceased Gautam Kamabale was solemnized with ceremonies

prevailing in their caste or religion. On the other hand, it is evident

that Kum Sneha was the biological daughter of the deceased

Gautam Kambale. Therefore, at this juncture, it would be

inappropriate to determine the rights of Ku. Sneha in the service

benefit of the deceased under Section 16 of the H.M.Act.

27. In the case of Draupada @ Draupadi Jaydeo Pawar V

Indubai d/o Kashinath Shirvram Chavan (supra), the Bombay

High Court has held that though the marriage is not defined under

H. M.Act, void or voidable marriage is defined under Sections 5, 11

and 12 of the H.M.Act. Thus, broadly, either customary

solemnization of marriage is required or performed of legal

formality is a condition precedent to label that relationship as a

marriage. However, there was no discussion of the M.C.S. Rules as

regards the pension.

28. As discussed above, the marriage between petitioner Smt

Aruna and deceased Gautam Kambale was not believed for want

15 CRA-53-22.odt

of ceremonies. Unless their marriage, though is declared void by

the competent Court of the law, it would be difficult to grant the

succession certificate to her daughter Kum. Sneha.

29. In the facts and the law involved in this case, it was difficult

for the Judge to decide the right to the certificate, which seems to

be intricate and difficult in a summary proceeding under Section

372 (3) of the Indian Succession Act. However, it further empowers

the Judge that he may nevertheless grant the succession

certificate to the applicant if he appears to be the person having

prima facie best title thereto.

30. It has been prima facie proven that the deceased Gautam

Kambale was the biological father of the applicant, Kum. Sneha.

Her right to have an inheritance cannot be determined in this

summary proceeding as the marriage ceremony of her biological

father and mother has not been proved. In the facts of the case,

the Court is of the view that to balance the equities, the

succession certificate be granted to respondents No.4 to 8, who

appear to be the persons having prima facie best title, with a rider

that they would protect one-sixth (1/6th) share of kum. Sneha till

her status is decided by the competent civil Court. The mother of

the deceased was a party to the proceeding. She had a right to the

property of a predeceased son. After her demise, her share

devolved upon the heirs mentioned in Section 15 of the Hindu

Succession Act. In the case at hand, the Court has no information

about such heirs. Hence, her one-sixth (1/6 th) share has been

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protected in the interest of her heirs and respondents Nos.4 to 8

are authorized to collect the debts to the extent of their clear one-

sixth (1/6th) share. They may prove their share in the share of the

mother of the deceased separately. The civil revision application

deserves to be allowed partly. Hence, the order:-

ORDER

(i) Civil revision application is partly allowed.

(ii) The common judgment and order dated 09.06.2020, of the learned Principal District Judge, Nanded, in Regular Civil Appeal No.33 of 2014 dismissing the Civil M. A. (R.J.E.) No.21 of 2007, is set aside and the judgment and order in Regular Civil Appeal No.18 of 2014 is modified as follows:-

a) Succession certificate be issued in the name of respondents No.4 to 8 to the extent of one-sixth (1/6 th) share jointly with a rider to keep one-sixth (1/6th) share protected to be received from the service benefits and any claim granted under the Motor Vehicles Act till her status as legitimate child under Section 16 of the Hindu Marriage Act is decided by the competent Court. If the suit for declaration of marriage filed by Smt. Aruna is not within six months from today, the one-sixth (1/6 th) share withheld by this Court be released to the respondents Nos.4 to 8, subject to the decision of the suit, if filed thereafter.

(iii) No order as to costs.

(iv) Pending civil application stands disposed of.

( S. G. MEHARE ) JUDGE rrd