Sh. Narain Singh & Ors. vs Smt. Birmati & Ors.
2011 Latest Caselaw 2274 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 28.04.2011


+                        R.S.A.No. 90/2007

SH. NARAIN SINGH & ORS.                          ...........Appellants

                         Through:    Ms.     Sukhda      Dhamiza,
                                     Advocate along with Mr. S.K.
                                     Rout and Mr. S.K. Sharma,
                                     Advocates.

                         Versus

SMT. BIRMATI & ORS.                              .......Respondents

                         Through:    Mr. B.D. Sharma, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This appeal has impugned the judgment and decree dated

17.01.2007 which had endorsed the finding of the trial judge

dated 18.07.2002 whereby the suit filed by the plaintiff Narain

Singh seeking the declaration to the effect that their brother

Braham(1.15 p.m) Prakash be declared as dead as he had been

missing since June 1976 and the plaintiffs (three in number) and

defendant no. 2 be declared as the only legal heirs of the estate of

Braham Prakash had been dismissed.

2. The three plaintiffs and defendant no. 2 are brothers. They

are sons of Rati Ram. They had another brother namely Braham

Prakash who was reported missing since June 1976. Defendant

no. 3, Smt. Birmati, was married to Braham Prakash as per hindu

rights in 1972. In June 1976, Braham Prakash went missing; all

efforts to trace him failed. No issue was born out of the wed lock

of Smt.Birmati and Braham Prakash. Braham Prakash could not

be found. Thereafter Birmati was taken as a wife by defendant no.

2 being his brother; the date of the ceremony was in dispute. By

way of this suit, the relief as aforenoted had been sought.

3. Defendant nos. 2 and 3 contested the suit; it was stated that

defendant no. 2 had taken defendant no. 3 as his wife in Jan 1985

which was after a period of seven years from 1976 when Braham

Prakash was reported missing. Contention was that the defendant

no. 3 being the legally wedded wife to Braham Prakash, she alone

was entitled to succeed to the property of the Braham Prakash;

she was the sole legal heir.

4. On the pleadings of the parties, the following issue was

framed:-

"Whether the suit is maintainable in view of provisions of Section 34 of Specific Relief Act, 1963?"

5. Relying upon the aforenoted statutory provision which had

not come to the aid of the plaintiff, the suit of the plaintiff was

dismissed. In appeal, this position was endorsed.

6. This is a second appeal. It had been admitted and on

26.03.2007, the following three substantial questions of law had

been formulated. They inter alia reads as follows:-

1. Whether the succession to a male Bhumidar is governed by the provisions of Delhi Land Reforms Act, 1954 or by Hindu Succession Act, 1956?

2. Whether the courts below misapplied and misconstrued the provisions of Section 34 of the Specific Relief Act in declining the relief of declaration?

3. Whether the courts below have correctly decided the case by disposing of a preliminary issue?

7. On behalf of the appellant, it has been urged that the

judgment of the trial court is illegal and arbitrary; the suit could

not have been decided only on a preliminary issue. There was a

twofold prayer made in the plaint. The first prayer which had

sought the decree of declaration that since Braham Prakash was

not found alive since the year 1976 and he be declared as a dead

man and thus prayer was well maintainable under the provisions

of Section 34 of the Specific Relief Act; the court should have

granted this relief in favour of the appellant. The second prayer

was also to the effect that Birmati having been married to Samay

Singh in the year 1980, at the time when the succession opened

which was in the year 1983 (7 years from 1976), Birmati was not

the widow of Braham Prakash; she was already a married woman.

This has not been taken into account by the impugned judgment

in the correct perspective. It is liable to be set aside.

8. Arguments have been rebutted. It is pointed out that

judgment, on no score, calls for any interference.

9. Record shows that before the first appellate court, an

application had been filed under Order 23 Rule 1 of the Code by

the plaintiff/appellant. This application was dated 03.09.2002. By

way of this application, the applicant had prayed to give up relief

no. (A) i.e. with regard to this prayer for declaration to the effect

that Braham Prakash may be declared as a dead man. This

permission had been granted and prayer (A) had accordingly been

deleted. The only prayer which now remained was prayer no. (B).

By virtue of this, the plaintiff had sought a declaration to the

effect that three plaintiffs and defendant no. 2 who are the

brothers of the deceased Braham Prakash be declared as the only

legal heirs of Braham Prakash as Birmati had got married to

Samay Singh in this intervening period and no longer being the

widow of Braham Prakash, she was not entitled to his estate. This

relief was refused.

10. The trial judge whose judgment had been endorsed by the

impugned judgment had returned the following finding on this

score.

"Now coming to the second prayer that the plaintiffs and defendants no. 2 be declared as the only legal heirs of the missing Braham Prakash, to the exclusion of defendant no. 3, the settled legal position is as follows. Under section 34 A declaration that the plaintiff is entitled to any legal right as to any property is maintainable and can be granted in a case if the facts of that case so warrants.

15. There can be no doubt as to the said legal position. However, whether in the facts of the present case such declaration is maintainable or not is the point to be considered.

16. It is settled legal position that declaration is a discretionary relief and cannot be claimed by a party as a matter of right. It is also true that such discretion is to be exercised on sound legal principles. The court has to make a sound judgment as to whether is reasonable or not under all the circumstances of the case to grant the depletory decree prayed for. Declaration relief u/s 34 of Specific Relief Act is more in nature of an equitable relief than a legal remedy. Where plaintiff has no law or equity in his favour, court will not grant declaration.

17. In the light of above legal position, let us examine whether the claim of the plaintiffs in the present case is maintainable. Under Hindu Succession Act 1956, to the estate of a person dying intestate, class I heirs shall

succeed inheritance rights to the exclusion of class II heirs. Sec. 8 of H.S. Act provides that the property of a male Hindu dying inestate shall devolve firstly upon class I heirs and such devolution is to the exclusion of others mentioned in lower class heirs. In the schedule appended to the said Act, widow is shown as a class I heir and brothers are shown as class II heirs. Thus under Hindu Succession Act 1956, if a widow of an intestate is alive she alone would be entitled to succeed to the properties of the estate if there are no other class I heirs.

18. In the present case it is the admitted case of the parties that defendant no. 3 was lawfully married to missing Braham Prakash according to Hindu rites and ceremonies. The said marriage of defendant no. 3 is admitted by the plaintiffs as well as by defendant no. 2. The only ground on which plaintiffs challenge the succession rights of the defendant no. 3 is that she is disqualified to succed to the properties of Braham Prakash because she has married again defendant no. 2 within next seven years for the date when said Braham Prakash want missing. The defendant no. 2 and defendant no. 3 on the other hand have denied that they were married within seven years of Braham Prakash being missing. According to defendant no. 2 and defendant no. 3 they were married after seven years. Be that as it may, even if we assume that the defendant no. 3 was married to defendant no. 2 within seven years from the date when Braham Prakash went missing, inlaw that does not make any difference so far as rights of defendant no. 3 regarding succession of properties of her erstwhile husband is concerned. Hindu Succession Act 1956 does not disqualify any widow from succeeding to the properties of the intestate even if she has married to some other person. The defendant no. 3 was not divested of her right to succeed to the properties of Braham Prakash merely by reason of her remarriage with defendant no. 2 even if we assume that succession opened in the present case after said Sh. Braham Prakash went missing for seven years or more. Even on notional death of Braham Prakash the erstwhile husband of defendant no. 3, the property of Braham Prakash would deemed to have devolved on the defendant no. 3 being his widow.

19. The abovesaid view finds support from the decision of Bombay High Court reported as II (1995) DMC 326 in case titled as Baburao Parashuram Harde & Ors. V. Laxmi Bai & Ors. To the same effect is the judgment of Hon.

S.C. in Smt. Gajodhari Devi V. Gokul and Anr. 1990 Matrimonial Law Reporter Pg. 48.

20. Thus, there is no law which takes away the widow's right to succession which vested in her when succession opened. The law no where says that the widow has to be divested of her right to succession on re-marriage.

21. Once we come to the conclusion that defendant no. 3 has a settled legal right to succeed to the properties of her erstwhile husband and her right is to the exclusion of plaintiffs and defendant no. 2 as they are class II heirs, there exists no right in favour of plaintiffs and defendant no. 2 to succeed to the properties of Braham Prakash. When there exists no right in favour of the plaintiffs and defendant no. 2 and the right exists only in favour of defendant no. 3 can the plaintiffs seek any relief by way of declaration which would amount to conferring any right which in law does not exist in favour of plaintiff. The answer should be in negative. No one can seek declaration of a non-existing right. Law does not permit such a declaration.

11. This finding does not in any manner call for any

interference. Birmati, even as per the case of the plaintiff, was

the legally wedded wife of Braham Prakash. Contention of the

plaintiff is that after Braham Prakash went missing, Birmati got

married to Samay Singh in 1980. This was refuted. The

contention of the defendant was that parties had got married only

in 1985. Be that as it may, even assuming that the case set up by

the plaintiff that Birmati had married Samay Singh in 1980 is

correct, this marriage of Birmati with Samay Singh would be a

void marriage as the presumption of death of Braham Prakash

could have arisen only after 7 years of his having got missing; he

had been got missing since 1976. Even assuming that Birmati had

married Samay Singh in 1980, there being no averment that this

marriage was as per custom, one spouse marrying another person

in the lifetime of a living spouse is illegal; such a marriage would

be a void marriage. It cannot recognized in the eye of law. Either

way, Birmati, was a class I heir. The three plaintiffs and the

defendant no. 2 being brothers are class II heirs. There is no

dispute to this position. As per the case of the plaintiff, the

succession to the estate of Braham Prakash would open in 1983

i.e. 7 years from the date of his having gone missing which was in

1976. In view of the fact that the plaintiff had given up prayer

no.(A) and there being no declaration to the effect that Braham

Prakash was a dead man in the year 1983; he was only missing;

even on the notional date of the opening of his succession in 1983,

his estate necessarily had to devolve upon his deceased widow i.e.

Birmati. The impugned judgment on no score suffers from any

perversity.

12. It has also been pointed out by the learned counsel for the

parties that the land in dispute had since been acquired and, in

fact, compensation for the said acquisition had also been received

by Birmati, although the same is under challenge. Be that as it

may, this court is sitting in second appeal and can interfere with

the findings of the court below only if a substantial question of law

arises. The impugned judgment had correctly interpreted the

provisions of Section 34 of the Specific Relief Act; this is

admittedly a discretionary relief. The preliminary issue about the

maintainability of the suit being strictly a legal issue was rightly

adverted to and answered without trial.

13. On no count, does the judgment calls for any interference.

Substantial questions of law are answered against the appellant

and in favour of the respondent. There is no merit in the appeal.

Dismissed.

INDERMEET KAUR, J.

APRIL 28, 2011 ss