Smt. Shyam Bai vs Smt. Sandhya Singh
2023 Latest Caselaw 251 Chatt

                              1



                                                          NAFR
      HIGH COURT OF CHHATTISGARH, BILASPUR

                    FA(MAT) No. 125 of 2020
1. Smt. Shyam Bai W/o Late Babulal Aged About 50 Years R/o B.
   Sim Khongapani Colary, Police Station Jhagrakhand, Tehsil
   Manendragarh District Koriya Chhattisgarh.
2. Omprakash S/o Late Babulal Aged About 18 Years R/o B. Sim
   Khongapani Colary, Police Station Jhagrakhand, Tehsil
   Manendragarh District Koriya Chhattisgarh.
3. Santoshi D/o Late Babulal Aged About 20 Years R/o B. Sim
   Khongapani Colary, Police Station Jhagrakhand, Tehsil
   Manendragarh District Koriya Chhattisgarh.
4. Ku. Laxmi D/o Late Babulal Aged About 16 Years Through Their
   Mother And Natural Guardian Smt. Shyam Bai , W/o Late
   Babulal   R/o B. Sim Khongapani Colary, Police Station
   Jhagrakhand, Tehsil Manendragarh District Koriya Chhattisgarh.
5. Ku. Sangeeta D/o Late Babulal Aged About 13 Years Through
   Their Mother And Natural Guardian Smt. Shyam Bai , W/o Late
   Babulal   R/o B. Sim Khongapani Colary, Police Station
   Jhagrakhand, Tehsil Manendragarh District Koriya Chhattisgarh.
                                                  ---- Appellants
                           Versus
1. Smt. Sandhya Singh W/o Late Jai Singh Aged About 24 Years
   Caste Gond R/o B. Sim Khongapani Colary, Police Station
   Jhagrakhand, Tehsil Manendragarh District Koriya Chhattisgarh.
2. Kunal Singh S/o Late Jai Singh Aged About 1 Years Minor
   Through Their Mother And Natural Guardian Smt. Sandhya
   Singh W/o Late Jai Singh, Caste Gond R/o B. Sim Khongapani
   Colary, Police Station Jhagrakhand, Tehsil Manendragarh
   District Koriya Chhattisgarh.
3. Ku. Kavya Singh D/o Jai Singh Aged About 4 Years Minor
   Through Their Mother And Natural Guardian Smt. Sandhya
   Singh W/o Late Jai Singh, Caste Gond R/o B. Sim Khongapani
   Colary, Police Station Jhagrakhand, Tehsil Manendragarh
   District Koriya Chhattisgarh.
4. Coalary Manager Haldibadi Coalary Khongapara S.E.C.L.
   Hasdeo Area District Koriya Chhattisgarh.
5. Chief General Manager S.E.C.L. Hasdeo Area              South
   Jhagrakhand Coalary, District Koriya Chhattisgarh.
6. Sub Area Manager Jhagrakhand Sub Area Khongapani S.E.C.L.
   Hasdeo Area Khongapani District Koriya Chhattisgarh.
7. Senior Mines Manager West Jhagrakhand Coalary S.E.C.L.
   Hasdeo Area Khongapani District Koriya Chhattisgarh.
8. P.F. Commissioner C.M.P.F. Office S.E.C.L. Shakti Nagar
   Gupteshwar Marg Jabalpur Madhya Pradesh.,
9. General Public
                                               ---- Respondents

For Appellants : Shri Shakti Raj Sinha and Shri Nishikant Sinha, Advocates For Respondents 1 to 3 : Shri Raj Kumar Gupta, Advocate For Respondents 4 to 7 : Shri Shailendra Shukla and Ku. Priya Mishra, Advocates

Hon'ble Justice Shri Goutam Bhaduri Hon'ble Justice Shri N.K. Chandravanshi Order On Board Per Goutam Bhaduri, J 13.01.2023

1. Heard.

2. The instant appeal is filed against judgment and decree

dated 06.3.2020 passed by Family Court, Manendragarh, Distt.

Korea in Civil Suit No.102A/2018.

3. The suit was filed by Smt. Sandhya Singh and her two

minor children namely, Kunal Singh and Kavya Singh, for

declaration and consequential reliefs. It was stated that Sandhya

Singh was married to Jai Singh on 21.02.2016 and out of that

wedlock, first child Kunal Singh was born on 07.8.2017 and the

second child Kavya Singh was born on 11.10.2018. The second

child was born after the death of Jai Singh on 16.02.2018. The

plaintiffs alleged that Jai Singh, who was an employee of SECL

colliery, since died in harness, and during his lifetime, he

tendered an application to record name of the plaintiffs after the

marriage and the same was accepted by the SECL, but entry in

the service book was not carried out which the plaintiff came to

know after the death of Jaising. Consequently, after the death of

Jai Singh she was denied to get the terminal benefits from the

SECL. Since the other claimants, i.e. mother and siblings of the

late Jai Singh came forward to lay a claim on terminal benefits of

Late Jai Singh, a dispute occurred and a suit was filed for

declaration and consequential relief by the plaintiffs.

4. The respondents mother and other siblings of late Jai Singh

came out with a different fact that Sandhya Singh was not married

to Jai Singh at any point of time and instead Sandhya Singh was

married to one Santosh Singh on 12.02.2016 and Jai Singh

remained unmarried till his death.

5. The SECL, other defendant which was holding the terminal

benefits of Jai singh came out with a reply that Jai Singh in his life

time has not filed any application to nominate the plaintiffs, i.e.

Smt. Sandhya Singh and her two children as legal heirs to receive

the terminal benefits, as such the SECL was unable to process

the dues to pay the claim of the plaintiffs. The learned Family

Court framed four issues and it held that plaintiff No.1 Smt.

Sandhya Singh was legally married wife of Jai Singh and plaintiffs

2 & 3 were children out of said marriage. With respect of

marriage of Sandhya Singh with one Santosh Singh, it was held

to be not proved and the claim was decreed in favour of the

plaintiffs to that extend. Being aggrieved by such judgment and

decree, present appeal is by mother and four other siblings of late

Jai Singh.

6. Learned counsel for the appellants would submit that

without there being any evidence on record to substantiate the

fact of valid marriage performed in between Jai Singh and

Sandhya Singh, the presumption has been drawn. He would

further submit that when specific marriage stated to have been

performed according to the Hindu rituals on a particular date, the

same should have been proved and in absence thereof, the

presumption could not have been drawn. He would further submit

that validity of the marriage and the legitimacy of the children

cannot be drawn on the basis of birth certificates. The counsel

wold submit that the Family Court while following such principle

has completely failed to appreciate the evidence on record.

Therefore, the judgment and decree of the Family Court is liable

to be set aside.

7. Per contra, Shri RK Gupta, learned counsel for respondents

1 to 3/plaintiffs would submit that the trial Court on the basis of

evidence has drawn its presumption. Referring to the birth

certificates (Ex-P/2 & P/3), he would submit that the first birth

certificate was issued while Jai Singh was alive and the second

birth certificate was issued after death of Jai Singh on

16.02.2018. He would submit that there is no evidence to rebut

the same. He would further submits that the learned Family court

in its judgment has drawn a presumption on the ground that

Jaisingh was living in a quarter adjacent to the quarter wherein

the mother lived in, which lead to draw a strong presumption of

marriage. Going through the statement, he would further submit

that the evidence led by the plaintiff Sandhya Singh remains

unrebutted, therefore, the judgment and decree passed by the

Family Court is well merited which do not call for any interference.

8. Shri Shailendra Shukla, learned counsel for respondents 4

to 8 would submit that deceased Jai Singh has never submitted

any application to the SECL to record the names of the nominees

i.e. plaintiffs 1 to 3, namely Smt. Sandhya Singh, Kunal Singh and

Ku. Kavya Singh.

9. We have heard the learned counsel for the parties at length

and perused the evidence on record.

10. Plaintiffs Smt. Sandhya Singh along with her two minor

children Kunal Singh and Kavya Singh filed suit for declaration

and consequential relief. Declaration was sought to the effect

that she is the wife of late Jai Singh and plaintiffs 2 & 3 are the

legitimate children of Jai Singh. Perusal of the pleadings and

evidence would show that plaintiff No.1 claimed that she was

married to Jai Singh on 21.02.2016. However, this marriage was

denied by defendants mother and siblings of late Jai Singh and in

counter it is stated that Jai Singh was unmarried till his death and

Sandhya Singh was married infact to one Santosh Singh on

12.02.2016.

11. In a deposition Sandhya Singh (PW-1) categorically

deposed that she was married to Jai Singh and the marriage was

performed by one Hanuman Prasad Dubey at Siddh Baba Mandir,

Manendragarh. Thereafter she started living along with late Jai

Singh at B.Seem colliery. Describing the names of the inmates at

the in-law's place, she named her sisters-in-law as Santoshi,

Lakshi, Sangita and brother-in-law Omprakash and mother-in-law

was named as Shyam Bai. She further stated that they were

living in in-law's place and father-in-law had died earlier and

earlier she had a good relation with all of them till the death of Jai

Singh. In the cross-examination when she was confronted with

the fact that whether she is able to disclose the name of family

members, she stated that she can name all the brother and the

sisters of late Jai Singh. There is no cross-examination to rebut

the same. This fact of deposition of the name of the family

members with all assertiveness would draw presumption of

opinion of relation in between the parties and this Court can draw

a primary presumption under Section 50 of the Indian Evidence

Act, wherein existence of relation ship is explained by the plaintiff

being said to be the member of the family, which remains

unrebutted.

12. The defendant mother and siblings of late Jai Singh have

stated that Sandhya Singh was married to one Santhosh Singh

on 12.02.2016. The mother has deposed that she received a card

for marriage with Santosh Singh and marked the document as

Ex-D/1 (a marriage reception card). The mother has stated that

her son Jai Singh was unmarried till his death in the year 2018.

In the cross-examination, Sandhya Singh (PW-1) has admitted

that her marriage was fixed with Santosh Singh in the year 2014-

15, who was the resident of Janakpur, but denied performance of

marriage on 12.02.2016. She also denied that after the marriage

she stayed with Santosh Singh. With respect to marriage with Jai

Singh, Sandhya Singh, the plaintiff was given a suggestion in her

cross-examination by mother-in-law, that marriage reception card

was printed of her marriage with Jai Singh, the deceased. When

categorical suggestions were given of existence of reception card

of marriage between Sandhya Singh with Jai Singh, it leads to

draw a presumption that mother-in-law is in know of marriage of

plaintiff No.1 with Jai Singh.

13. The plaintiff further stated that her marriage was performed

in the temple, which is adjacent to a mountain. She specifically

stated that her marriage was performed not at the temple which is

adjacent to the road, but which situates at a distance. This

statement is further corroborated by Lakshman (PW-2) in the

cross-examination wherein he affirmed the fact the marriage of

the plaintiff was performed at Siddh Baba Mandir, Manendragarh,

which situates over the mountain. So the evidence of place of

marriage with certainty comes to fore to draw a presumption. The

plaintiff has further exhibited a document (Ex-P/8), styled as

vivahik ikararnama and said to be executed between Jai Singh

and plaintiff No.1. The agreement states that they are married on

21.02.2016 for which the same was reduced in to writing by Ex-P/

8. While confronting Ex-P/8, no whisper was made about identity

of Jai Singh, though it contains the photograph of Jai Singh along

with signature. Further, in the cross-examination of the plaintiff

(PW-1), she deposed that said document, i.e. marriage

agreement was left with the notary after its execution for its

registration. Further finding of the learned family court to draw

such presumption of marriage from the statement of Chatrapal

Dhurve (DW-1) also appears to be correct wherein he stated that

the deceased Jaisingh used to stay at the adjacent quarter to his

mother-in-law Shyam Bai's quarter. The necessary inference

therefore is that Shyambai and Jaisingh were residing in quarter

allotted by SECL and after the marriage another quarter adjacent

to earlier quarter might have been allotted wherein Jai Sing used

to live. Therefore, such inference drawn by the learned Family

court appears to be justified.

14. Now coming back to the birth certificates (Ex-P/1 & P/2) .

Ex-P/1 is the birth certificate of son Kunal Singh which was issued

on 25.8.2017. Kunal Singh was born on 07.8.2017. The fact

would suggest said birth certificate of plaintiff No.2 minor son

was issued while Jai Singh was alive. Likewise Ex-P/2 birth

certificate of Kavya Singh was issued on 03.12.2018 after the

death of Jai Singh. Said certificates were issued by the State in

exercise of Registration of Births and Deaths Act, 1969 ( for short

'the Act of 1969'). Section 11 of Act 1969 purports that

information to be given to the Registrar about the birth or death

and thereafter Section 12 of the Act 1969 purports that extracts of

the registration entries to be given to the informant. The Act also

attaches penalty for non-compliance under Section 23 of the said

Act. The issuance of said certificates (Ex-P/1 & P/2) remains

unrebutted by the defendants/appellants. It can be very well

presumed about the birth and paternity of plaintiffs 2 & 3 wherein

name of the father is shown as Jai Singh and name of the mother

is shown as Sandhya Singh. The documents Ex-P/5 & P/6 which

are the Aadhar cards subsequently issued also contains name of

Jai Singh to be the husband of plaintiff No.1 and father of plaintiffs

2. The plaintiff further averred that during the lifetime of JaiSingh,

he had given application (Ex-P/7) to the SECL on 30.11.2017 to

record their name in the service record. There is no denial of the

fact that said application was not signed by late Jai Singh.

Overall reading of the documents would show that the plaintiff

was able to prove the fact that they are the legally married wife

and children of late Jai Singh.

15. For the reasons stated hereinabove, the appeal, sans

substratum, is liable to be and is hereby dismissed, leaving the

parties to bear their own costs(s).

16. As has been held that the plaintiffs namely; Smt. Sandhya

Singh, Kunal Singh and Ku. Kavya Singh being the legal heirs of

Late Jai Singh in absence of any Will, they are entitled to a part of

estate which would be governed by the law of Succession as no

testamentary succession exists. Accordingly, the terminal

benefits of Late Jai Singh would be governed by virtue of Section

8 of the Hindu Succession Act. The respondents No.4 to 8 would

do accordingly.

17. A decree be drawn accordingly.

                    Sd/-                                      Sd/-

             (Goutam Bhaduri)                        (NK Chandravanshi)

                 Judge                                        Judge
Bini