Smt. Bindra Devi vs Kumari Makni
2021 Latest Caselaw 279 UK

                                           Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Civil Revision No.30 of 2017

1. Smt. Bindra Devi W/o Late Sri Mahavir Singh R/o
   Village & Post Jhandi Chaur, Patti-Haldi Khata, Tehsil
   Kotdwar, District Pauri Garhwal
2. Jitendra Singh S/o Late Sri Mahavir Singh, R/o
   Village & Post Jhandi Chaur, Patti-Haldi Khata, Tehsil
   Kotdwar, District Pauri Garhwal
3. Lakki Singh S/o Late Sri Mahavir Singh, R/o Village &
   Post Jhandi Chaur, Patti-Haldi Khata, Tehsil Kotdwar,
   District Pauri Garhwal
                                           ....Revisionists

                                 Vs.

1. Kumari Makni D/o Late Mahavir Singh, R/o Village &
   Post Jhandi Chaur, Patti-Haldi Khata, Tehsil Kotdwar,
   District Pauri Garhwal
2. Kumari Devshwari @ Savita D/o Late Mahavir Singh,
   R/o Village & Post - Jhandi Chaur, Patti Haldi Khata,
   Tehsil Kotdwar, District Pauri Garhwal
3. Smt. Janki Devi W/o Satendra Singh, D/o Late
   Mahavir Singh, R/o Village Vishanpur, Patti Sane,
   Tehsil Kotdwar, District Pauri Garhwal.
4. Smt. Dipti Devi alias Pinki W/o Yogendra Singh, D/o
   Late Mahavir Singh, R/o Village Bonshal Talla, Patti
   Mondhadalsyun, District Pauri Garhwal
5. Smt. Babi Devi, W/o Sri Jai Prakash, D/o Late
   Mahavir Singh, R/o Village & Post Resham Majari
   (Khadar), Doiwala Dehradun
6. Village Pradhan, Village Kulhad, Pati Langoor, Pauri
   Garhwal
7. Village Pradhan, Village Uttari Jhandichour, Kotdwar,
   Pauri Garhwal

                                               ...Respondents

Counsels:
Mr. N.K. Papnoi, Advocate for the revisionists
Mr. Raman Kumar Shah, Advocate for the respondents
                                   2


                            JUDGMENT

Hon'ble Lok Pal Singh, J.

This civil revision is directed against the judgment and order dated 12.08.2016 passed by Additional District Judge, Kotdwar, Garhwal in Civil Appeal No.17 of 2015 Bindra Devi and others vs. Kumari Makani and others, dismissing the civil appeal, filed on behalf of the revisionists/defendants and confirming the judgment and decree dated 31.08.2015 passed by Civil Judge (Senior Division), Kotdwar, Garhwal, whereby the succession application moved by the respondents/plaintiffs has been allowed.

2. Factual matrix of the case is that the respondent no.1 Km. Makni Devi moved an application for issuance of succession certificate in the court of Civil Judge (Senior Division), Kotdwar Garhwal stating that deceased Mahavir Singh was posted as Beldar in India Trade Promotion Organization, Pragati Maidan, Pragati Bhavan, New Delhi, and he died on 05.02.2008. The applicant/respondent no.1, for getting the retiral dues of the deceased, moved an application for issuance of succession certificate in her name. In the application, she stated that she is daughter of the deceased Mahavir Singh. Opposite party nos.1 to 4 are daughters, opposite party no.8 is wife and opposite party nos.9 and 10 are sons of the deceased. The revisionist/opposite party no.8 Smt. Bindra Devi filed her objections to the said application and stated that she is the widow of the deceased and prayed that the retiral dues may be ordered to be paid to her and her minor son Lakki. Revisionist further stated that the respondent no.1, in connivance with her married sisters, and by concealing

the true facts, has filed the present application. She further stated that after the death of Rameshwari Devi, first wife of the deceased, the deceased married to her and revisionist no.3 Lakki begotten from the said wedlock and their names are duly entered in the service records. After hearing the parties and on perusal of evidence, learned Civil Judge (Senior Division), Kotdwar, recorded a finding that the revisionist no.1 has admitted in her cross-examination that she was earlier married to Rajendra Singh and no decree of divorce was obtained from the Family Court. It was thus observed that the revisionist is not a legally wedded wife of Late Mahavir Singh, however, the child born from the said wedlock is a legitimate child. Accordingly, by judgment and order dated 31.08.2015, learned Civil Judge, Senior Division disposed of the application thereby issuing a succession certificate to get the retiral dues of the deceased as per 1/6th share each in favour of respondent nos.1 to 5 as well as revisionist no.3. Being aggrieved by the judgment and order dated 31.08.2015, the revisionists preferred an appeal being Civil Appeal No.17 of 2015 in the court of Additional District Judge, Kotdwar Garhwal, which was also dismissed by the appellate court vide its judgment and order dated 12.08.2016.

3. I have heard learned counsel for the parties and perused the entire material brought on record.

4. Learned counsel for the revisionists would submit that the courts below have not properly appreciated the evidence available on record and have wrongly held that the marriage of the revisionist no.1 and the deceased was a void marriage and, on the said

premise, has curtailed all her rights under the Succession Act. He would submit that even the revisionist no.1 was not a legally married wife of the deceased, but in the event also, she is also entitled for having a share in the post retrial dues of the deceased, as the revisionist no.1 and the deceased spent their whole life as husband and wife and a child namely Lakki was begotten from the said wedlock and the deceased also had also entered their names in the service records as legal heirs.

5. Per contra, learned counsel for the respondent no.1 would submit that the succession certificate has been rightly issued by the court below in her favour considering the fact that the revisionist no.1 is not a legally wedded wife of the deceased, she has not obtained a decree of divorce for dissolving the marriage with her first husband, from the competent court of law. He would further submit that the mother of the respondent no.1 was the legally wedded wife of the deceased who has expired, and after the death of Late Mahavir Singh, the respondent no.1 along with respondent nos.2 to 5, being daughters of the deceased Late Mahavir Singh are legal heirs of the deceased and successors of the property and post-retiral benefits of the deceased.

6. In the case at hand, though the revisionist no.1 has pleaded that she is the legitimate wife of deceased Late Sri Mahavir Singh and that a child was begotten from said marriage and that the deceased had recorded their names in the service records during his life time, but the fact remains that the revisionist no.1 had not obtained a decree of divorce dissolving her

marriage from her first husband. In this regard, the trial court has recorded a categorical finding that the revisionist no.1 appeared as D.W.1 and in her cross- examination she has admitted that her first marriage was solemnized with Rajendra Singh Harsinghpur 26-27 years ago, and that no decree of divorce was obtained from the Family Court. DW2 Amar Singh, father of the revisionist, also appeared before the trial court and admitted that the previous marriage of the revisionist no.1 was not dissolved by a decree of divorce. In such facts and circumstances, the trial court has rightly observed that the revisionist no.1 was the unlawful wife of the deceased Late Shri Mahavir Singh. However, with regard to the status of revisionist no.3 Lakki Singh, the trial court has observed that he is legitimate child and is entitled to get equal share in the retiral dues of the deceased, like other children of the deceased. In my considered opinion, in the absence of a decree of divorce between the revisionist no.1 and her first husband, subsequent marriage of the revisionist no.1 with Late Shri Mahavir Singh has rightly been found to be an unlawful/void marriage in the light of Section 5 of the Hindu Marriage Act, for the purpose of granting succession certificate.

7. This Court, in exercise of revisional jurisdiction under Section 115 of CPC, can only exercise its jurisdiction, if it comes to the conclusion that the subordinate courts exercised a jurisdiction not vested in it by law; or has failed to exercise a jurisdiction so vested; or has acted in exercise of its jurisdiction illegally or with material irregularity. In the absence of any of the three contingencies mentioned above, the revisional court should not interfere in the order passed

by the court below. In the case at hand, the judgment and orders under challenge do not suffer from any illegality or material irregularity. No interference is, therefore, called for.

8. Instant civil revision, being devoid of merit, is hereby dismissed.

(Lok Pal Singh, J.)

25.01.2021 Rajni