Shri Laifungbam Debabrata ... vs Shri Laifungbam Somi Roy
2022 Latest Caselaw 348 Mani

LAIREN Digitally signed
       by
MAYUM LAIRENMAYUM                  IN THE HIGH COURT OF MANIPUR
       INDRAJEET
INDRAJ SINGH
       Date:
                                             AT IMPHAL
EET    2022.08.11
       10:39:03
SINGH +05'30'
                                    CRP(CRP Art.227) NO.30 OF 2019

         Shri Laifungbam Debabrata (Bobbie) Roy, aged about 59 years,
         s/o late Maharaj Kumari Binodini, a permanent resident of Yaiskul Moibung
         Lokpa Leikai, P.O. & P.S. Imphal, District- Imphal West, Manipur.
                                                                                          ...Petitioner
                            -Versus-
         Shri Laifungbam Somi Roy, aged about 57 years,
         s/o late Maharaj Kumari Binodini, a permanent resident of Yaiskul Moibung
         Lokpa Leikai, P.O. & P.S. Imphal, District- Imphal West, Manipur and
         also residing at 422 Macon Street, Apart-2, Brooklyn, New York-11233.
                                                                                       ... Respondent

BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR

For the Petitioner : Mr. A.Mohendro, Advocate

For the Respondent : Mr. S.Devajit, Advocate Mr.I.Sandeep, Advocate

Date of Order : 09.08.2022

JUDGMENT & ORDER (ORAL)

[1] This Civil Revision Petition, filed under Article 227 of the Constitution read

with Section 115 CPC, arises out of the order dated 05.06.2013 passed by the learned

District Judge, Manipur East, in Original Suit (Probate) No.1 of 2012. The petitioner

is the defendant in the said suit. He filed an application therein to take up certain

issues as preliminary issues. However, upon consideration of the said issues, the Trial

Court held against him, vide order dated 05.06.2013. Aggrieved thereby, he is before

this Court.

[2] Heard Mr. A.Mohendro, learned counsel for the petitioner/defendant; and

Mr. S.Devajit and Mr.I.Sandeep, learned counsel for the respondent/plaintiff.

         CRP(CRP Art.227) No.30 of 2019                                                          Page 1
 [3]        Parties shall hereinafter be referred to as arrayed in the suit.

[4]        Original Suit (Probate) No.1 of 2012 was filed by the plaintiff under

Section 276 of the Indian Succession Act, 1925, for grant of probate in relation to

the Registered Will dated 28.05.2002 executed by his deceased mother, Maharaj

Kumari Binodini Devi. His brother, the defendant, filed a written statement therein.

Upon consideration of the pleadings, the Trial Court framed seven issues for trial and

determination. Issue Nos. 3 and 4 are of relevance and read thus: -

'3. Whether there is any defect of party or not?

4. Whether the WILL dated 28.05.2002 is against public policy or not?'

Judicial Miscellaneous Case No.64 of 2012 was filed by the defendant

praying for Issue Nos. 3 and 4 to be taken up as preliminary issues. The Trial Court

permitted the same, vide order dated 20.12.2012, but held against him on both

counts by way of the order under revision.

[5] Issue No.3 was framed as the defendant had contended that the suit was

bad for non-joinder of Anna Pinto as a party. Though the said Anna Pinto was stated

to be living with the defendant and her name found mention in the Will, it was an

admitted fact that only the plaintiff and the defendant were the Class-I legal heirs of

late Maharaj Kumari Binodini Devi. The Trial Court therefore held that Anna Pinto

was neither a necessary nor a proper party and that there was no defect in the suit.

Issue No.3 was accordingly answered against the defendant.

[6] Issue No.4 was whether the Will was against public policy. This issue was

framed as late Maharaj Kumari Binodini Devi had stipulated in her Will dated

28.05.2002 that, within one year of her death, the defendant should legally sever all

connections with Anna Pinto and only then, he would be entitled to equal share in

her properties along with her other son. She further stated that if the severance was

CRP(CRP Art.227) No.30 of 2019 Page 2 not completed within the time given, her properties should devolve upon her younger

son, the plaintiff. It was the contention of the defendant before the Trial Court that

this clause was against public policy, being violative of Section 127 of the Indian

Succession Act, 1925.

[7] However, the plaintiff contended before the Trial Court that Anna Pinto

was not the lawfully wedded wife of the defendant as she did not divorce her first

husband and was living with the defendant illegally. He therefore argued that the

condition stipulated by their deceased mother that the defendant should sever his

relationship with the lady could not be said to be contrary to law, morality or public

policy. On the other hand, the defendant claimed before the Trial Court that he and

Anna Pinto had been living together as husband and wife for the last many years.

The Trial Court opined that the question whether she was his lawfully wedded wife

or not required to be decided and the same could only be done after examination of

evidence. Holding so, the Trial Court concluded that Issue No.4 did not involve a

pure question of law but a mixed question of fact and law. In effect, as a preliminary

issue could only be taken up if it involved a pure question of law, the Trial Court

deferred consideration of Issue No.4 till after the trial.

[8] Mr. A. Mohendro, learned counsel, would contend that the marriage of

the defendant with Anna Pinto was not open to doubt or question as it had been

registered under the provisions of the Hindu Marriage Act, 1955. He would draw the

Court's attention to the Registration Extract, indicating the date of marriage of the

defendant with Anna Pinto as 03.03.1989. However, the registration seems to have

been applied for only in the year 2008.

[9] Section 8 of the Hindu Marriage Act, 1955, provides for registration of

Hindu marriages and Section 8(4) states that the Hindu Marriage Register shall be

CRP(CRP Art.227) No.30 of 2019 Page 3 admissible as evidence of the statements contained therein. Therefore, in the usual

course, once a Hindu marriage is registered and the Marriage Register or an extract

thereof is produced before the Court, it would be admissible as evidence. Further,

Section 81 of the Indian Evidence Act, 1872, would attach a presumption of

genuineness to it. In consequence, the Trial Court could have accepted the

Registration Extract placed before it as proof of a valid marriage between the

defendant and Anna Pinto.

[10] However, Mr. Devajit, learned counsel, would inform this Court that the

defendant did not stand by what he had claimed before the Trial Court. Learned

counsel would state that the defendant filed Matrimonial (Dec.) Suit No.18 of 2020

before the Family Court, Manipur at Lamphelpat, praying for a declaration of nullity

in relation to his 'registered marriage' with Anna Pinto. A copy of the plaint filed in

the said suit is placed on record. Therein, the defendant, being the plaintiff therein,

stated that in the year 2008, Anna Pinto forcefully got him to register a marriage

without any formal marriage and that it was void ab initio for that reason. He further

stated that Anna Pinto was a Christian and had concealed her first marriage with one

Norman Mendes. He asserted that she did not secure a formal divorce from her first

husband and, therefore, registration of his marriage with her was null and void.

According to him, he was only in a live-in-relationship with Anna Pinto for some time.

[11] In the light of the clear admission by the defendant that he fraudulently

secured registration of his 'Hindu marriage' with Anna Pinto in the year 2008, no

value can be attached to the Registration Extract produced by him. It is not open to

the defendant to approbate and reprobate to suit his convenience and own interest.

He cannot use the 'so-called marriage' with Anna Pinto as a ground to attack his

CRP(CRP Art.227) No.30 of 2019 Page 4 mother's Will, on the one hand, and seek to wash his hands off the said marriage,

by way of a separate suit filed for declaratory relief.

[12] On the above analysis, this Court finds no error having been committed

by the Trial Court in disallowing the plea of the defendant to consider Issue No.4 as

a preliminary issue. The material brought on record clearly indicates that much is to

be said about his 'so-called marriage' which necessarily requires a full-fledged trial

before the Trial Court can come to any decision.

The order under revision therefore does not brook interference either on

facts or in law.

This Civil Revision Petition is devoid of merit and is accordingly dismissed.

No order as to costs.

                                                  CHIEF JUSTICE


FR/NFR
Opendro




CRP(CRP Art.227) No.30 of 2019                                                    Page 5