BOMBAY
HIGH COURT
VANDANA
BHIMRAO JADHAV VS INHABITANT OF MUMBAI ON 22 OCTOBER, 2013
Summarised Judgement
(Scroll for Complete Judgement)
Facts of the Case:
By this petition,
petitioners seek revocation of the heirship certificate granted by this court
by an order dated 12 th March, 2010 to the respondent in Petition No. 91 of
2009 under section 2 of the Bombay Regulation VIII of 1827 in respect of the
deceased Mr.Bhimrao Anand Jadhav. Some of the relevant facts for the purpose of
deciding this petition are as under.
Respondent to this petition
who is admittedly son of the said deceased Mr.Bhimrao Anand Jadhav had filed
the said Misc. Petition No. 91 of 2009 for kvm MPT110.11 issuance of legal
heirship certificate in this court.
t was stated in the said
petition that the said deceased left behind the petitioner the only heir and
legal representative of the said deceased. Considering the death certificate
and other documents annexed to the petition, and considering the fact that
inspite of proclamation issued, no objections were raised by any person, this
court issued heirship certificate in favour of the petitioner therein.
Observation
& Judgement:
So, the court in this matter held that the
petitioners are entitled to include their names in the legal heirship
certificate issued by this Court in Petition No. 91 of 2009 as legal heirs
issued under section 2 of the Bombay Regulation VIII of 1827 in favor of the
respondent.
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Complete
Judgement
BOMBAY
HIGH COURT
VANDANA
BHIMRAO JADHAV VS INHABITANT OF MUMBAI ON 22 OCTOBER, 2013
Vandana Bhimrao Jadhav
vs Inhabitant Of Mumbai on 22 October, 2013
Bench: R.D. Dhanuka
IN THE HIGH COURT OF
JUDICATURE AT BOMBAY
TESTAMENTARY AND
INTESTATE JURISDICTION
MISC. PETITION NO. 110
OF 2011
IN
MISC. PETITION NO. 91 OF
2009
1. Vandana Bhimrao
Jadhav
Aged 49 years,
Hindu/Boudhha,
Indian Inhabitant of
Mumbai,
residing at Room No.2,
Chawl No.
168, Nimboni Baug, Datta
Nagar,
Govandi, Mumbai - 400
043
being the widow of the
deceased above named
2. Tejaswi Bhimrao
Jadhav,
Aged 19 years,
Hindu/Boudhha,
Indian Inhabitant of
Mumbai,
residing at Room No.2,
Chawl No.
168, Nimboni Baug, Datta
Nagar,
Govandi, Mumbai - 400
043
being the daughter of
the deceased above named
3. Atish Bhimrao
Jadhav,
Aged 16 years, Hindu/Boudhha,
Indian Inhabitant of
Mumbai,
Through his natural
guardian/
mother Smt.Vandana
Bhimrao
Jadhav, the Petitioner
No.1 abovenamed
residing at Room No.2,
Chawl No.
168, Nimboni Baug, Datta
Nagar,
Govandi, Mumbai - 400
043
being the son of the
deceased above named
4. Kesarabai Anand
Jadhav,
Aged 65 years,
Hindu/Boudhha,
Indian Inhabitant of
Mumbai,
residing at Room No.2,
Chawl No.
168, Nimboni Baug, Datta
Nagar,
Govandi, Mumbai - 400
043
being the mother of the
deceased above named
VERSUS
Sagar Bhimrao
Jadhav
Aged 25 years, Hindu,
Indian
Inhabitant of Mumbai,
residing at
Room No.27, Ramabai
Colony,
P.Y.Thorat Marg, Near
Chembur
Station, Mumbai - 400
089
..... Respondent
Mr.Harish Pawar for the
Petitioners.
Mr.Santosh Parab, i/b.
Sharma & Khandkar for the Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 14th
OCTOBER, 2013
PRONOUNCED ON : 22nd
OCTOBER, 2013
JUDGMENT :
By this petition, petitioners seek revocation of
the heirship certificate granted by this court by an order dated 12 th March,
2010 to the respondent in Petition No. 91 of 2009 under section 2 of the Bombay
Regulation VIII of 1827 in respect of the deceased Mr.Bhimrao Anand Jadhav.
Some of the relevant facts for the purpose of deciding this petition are as
under :-
2. Respondent to this petition who is admittedly
son of the said deceased Mr.Bhimrao Anand Jadhav had filed the said Misc.
Petition No. 91 of 2009 for kvm MPT110.11 issuance of legal heirship
certificate in this court. It was stated in the said petition that the said
deceased left behind the petitioner the only heir and legal representative of
the said deceased. Considering the death certificate and other documents
annexed to the petition, and considering the fact that inspite of proclamation
issued, no objections were raised by any person, this court issued heirship
certificate in favour of the petitioner therein. On perusal of the record, it is
clear that proclamation was issued on 10 th December, 2009. The petitioner in
the said petition had applied for legal heirship certificate since the same was
required to be produced before the Municipal Corporation of Greater Mumbai for
getting the employment in place of the said deceased who was working with the
Municipal Corporation. It was stated in the petition that except the petitioner
(respondent herein there was no other legal heir and/or legal representative of
the said deceased.
3. Petitioner no.4 is the mother of the said
deceased. It is the case of the petitioner that in view of the strained
relations between the said deceased and Smt.Anjana Bhimrao Jadhav who was
married to the said deceased, the said Smt.Anjana Bhimrao Jadhav was staying separately
from the said deceased and executed a writing dated 8th July, 1988 expressing
her desire to separate from the said deceased to enable him to do second
marriage. It is the case of the petitioners that the said Smt.Anjana Bhimrao
Jadhav gave her no objection in favour of the said deceased for getting married
again. It is the case of the petitioners that in view of such writing executed
by the first wife of the said deceased, petitioner no.1 married the said
deceased on 23rd June, 1991 at Samaj Mandir Hall, Shell Colony, Chembur, Mumbai
- 400 071. Petitioner has placed reliance on the copy of the wedding card of
the said marriage and also marriage certificate dated 4 th August, 2010 issued
by Buddhist Society of India certifying that petitioner no.1 and the kvm
MPT110.11 said deceased had married on 23rd June, 1991 at Samaj Mandir Hall as
per Boudha rites. From wedlock of the said deceased, petitioner no.2 was born
on 10 th April, 1992 and petitioner no.3 was born on 1st November, 1996. Copies
of the birth certificates of the petitioner nos. 2 and 3 issued by the Mumbai
Municipal Corporation of Greater Mumbai are annexed. Petitioners have also
placed reliance upon the copy of the 'Form of dependents' submitted by the
deceased with the Municipal Corporation to demonstrate that the names of
petitioner nos. 1, 2 and 3 were disclosed as relatives of the said deceased in
the records of the Municipal Corporation. Reliance is also placed on the ration
card of the said deceased to demonstrate that the names of all the petitioners
are entered into ration card of the said deceased.
4. On 6th May, 2008, 23rd June, 2008, 18th July,
2008, petitioners made an application to the Municipal Corporation requesting
to remit service dues of the said deceased to the petitioners and learnt that
respondent had also applied to the Municipal Corporation by his advocate's
letter dated 16 th May, 2009 for release of service dues of the said deceased
and also applied for employment on compassionate ground. The respondent had
also raised objection for release of service dues of the said deceased to the
petitioner no.1 on the ground that the marriage of petitioner no.1 with the
said deceased was illegal. Municipal Corporation had called upon the petitioner
no.1 to produce the heirship certificate from the competent court and informed
that if no such legal heirship certificate is produced, claim in respect of the
pending dues will be disposed of in favour of the respondent.
5. Learned counsel appearing for the petitioners
submit that though respondent was fully aware of the marriage of the said
deceased with the petitioner no.1 and kvm MPT110.11 that petitioner nos. 2 and
3 were born out of the said wedlock and though respondent was aware that the
said deceased had left behind him his mother, name of the petitioners were not
disclosed as legal heirs in the petition filed in this court for heirship
certificate (91 of 2009 and the respondent thus having committed fraud upon
this court, the legal heirship certificate shall be set aside by this court and
the heirship certificate shall be granted in favour of the petitioners.
6. Learned counsel placed reliance upon the
judgment of the Supreme Court in case of Rameshwari Devi vs. State of Bihar and
others reported in (2000 2 SCC 431 in support of his submission that under
section 16(3 of the Hindu Marriage Act, provisions contained in that section
will apply to such children in respect of the property of any person other than
their parents. It is submitted that the petitioner nos. 2 and 3 who were born
out of the wedlock of petitioner no.1 with the said deceased are also entitled
to inherit the property of the deceased irrespective of the fact whether
marriage between petitioner no.1 and the said deceased was void or not.
Paragraph (14 of the said judgment reads thus :-
14. It cannot be disputed that the marriage
between Narain Lal and Yogmaya Devi was in contravention of Clause (i of
Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16
of this Act, children of void marriage are legitimate. Under the Hindu
Succession Act, 1956, property of a male Hindu dying intestate devolve firstly
on heirs in Clause (1 which include widow and son. Among the widow and son,
they all get shares (see Sections 8, 10 and the Schedule to the Hindu
Succession Act, 1956. Yogmaya Devi cannot be described a widow of Narain Lal,
her marriage with Narain Lal being void. Sons of the marriage between Narain
Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled
to the property of Narain Lal in equal shares along with that of Rameshwari
Devi and the son born from the marriage of Rameshwari Devi kvm MPT110.11 with
Narain Lal. That is, however, legal position when Hindu male dies intestate.
Here, however, we are concerned with the family pension and death-cum-
retirement gratuity payments which is governed by the relevant rules, It is not
disputed before us that if the legal position as aforesaid is correct, there is
no error with the directions issued by the learned single Judge in the judgment
which is upheld by the Division Bench in LPA by the impugned judgment.
7. Relying upon the judgment of Supreme Court in
case of Rameshwari Devi (supra, it is submitted by the learned counsel that
petitioner nos. 2 and 3 are daughters of the said deceased born out of the said
wedlock in any event are thus entitled to share in the service dues of the said
deceased and other properties alongwith respondent and petitioner no.4 who is
mother of the said deceased.
8. As far as petitioner no.1 is concerned,
learned counsel appearing for the petitioner submits that in view of the
writing executed by the first wife of the deceased giving her no objection in
the said deceased marrying again, petitioner no.1 also would be also a legal
heir of the said deceased in addition to petitioner nos. 2 to 4 and would be
entitled to inherit the estate of the said deceased including service dues.
9. Learned counsel appearing for the petitioner
submits that though children of invalid marriage would not be entitled to
inherit ancestral property, such children would be entitled to share in the
property of the parents in terms of section 16(3 of the Hindu Marriage Act.
Reliance is placed on the judgment of the Supreme Court in case of
Ravanasiddappa vs. Mallikarjun in Civil Appeal No. 2844 of 2011 delivered on
21st March 2011. Paragraph 26 of the said judgment reads thus :-
26. On a careful reading of Section 16(3 of the
Act we are of the view that the amended Section postulates that such children
would not be entitled to any rights in the property of any person who is not
his parent if he was not entitled to them, by virtue of his illegitimacy,
before the passing of the amendment. However, the said prohibition does not
apply to the property of his parents. Clauses (1 and (2 of Section 16 expressly
declare that such children shall be legitimate. If they have been declared
legitimate, then they cannot be discriminated against and they will be at par
with other legitimate children, and be entitled to all the rights in the
property of their parents, both self- acquired and ancestral. The prohibition
contained in Section 16(3 will apply to such children with respect to property
of any person other than their parents.
10. Learned counsel appearing for the respondent
on the other hand submits that though proclamation was issued, no objection was
received by the office of this court from the petitioners. This court has thus
rightly issued legal heirship certificate in favour of the respondent. Learned
counsel however fairly admits that the petitioner no.1 had solemnized marriage
with the said deceased and in the Municipal record, names of petitioner nos. 1,
2 and 3 were disclosed as relatives of the said deceased. Learned counsel
fairly admits that the mother of the said deceased would be a legal heir of the
said deceased who is alive. As far as petitioner no.1 is concerned, learned
counsel would submit that there was no decree of divorce granted by any
competent court of law such alleged writing could not be considered as decree
of divorce by consent and thus second marriage solemnized by the petitioner
no.1 with the said deceased is void and illegal. In support of this submission,
learned counsel appearing for the respondent placed reliance upon the judgment
of the Supreme Court in case of Nagendrappa Natikar vs. Neelamma delivered on
15th March, 2013 in Special Leave Petition (Civil NO. 11800 of 2013 and in
particular paragraph 11 thereof which reads as under :-
11. Section 25 of the Contract Act provides that
any agreement which is opposed to public policy is not enforceable in a Court
of Law and such an agreement is void, since the object is unlawful. Proceeding
under Section 125 Cr.P.C. is summary in nature and intended to provide a speedy
remedy to the wife and any order passed under Section 125 Cr.P.C. by compromise
or otherwise cannot foreclose the remedy available to a wife under Section 18(2
of the Act.
It is submitted that any agreement which is
opposed to public policy is not enforceable in a Court of Law and such an
agreement is void, since the object is unlawful. Since there is no dispute
raised by the respondent that petitioner no.1 was married to the said deceased
and petitioner nos. 2 and 3 were born out of such wedlock, in my view, in view
of section 16(3 of Hindu Marriage Act, children born out of such marriage would
be entitled to inherit the properties of the said deceased being their father
even if the marriage of the petitioner no.1 with the said deceased was void or
invalid. I am respectfully bound by the judgment of the Supreme Court referred
to aforesaid.
12. In so far as submission of the learned
counsel appearing for the petitioners that petitioner no.1 solemnized marriage
with the said deceased after such writing was received from the first wife
giving her no objection in favour of the said deceased in getting married again
and petitioner no.1 would be one of the legal heirs of the said deceased is
concerned, in my view, this issue is concluded by the judgment of the Supreme
Court delivered on 15th March, 2013 in case of Nagendrappa Natikar (supra when
Supreme Court considered similar consent letter addressed by the first wife of
the deceased. After considering such writing, Supreme Court held that under
section 25 of the Contract Act, any agreement kvm MPT110.11 which is opposed to
public policy is not enforceable in a court of law and such an agreement is
void, since the object is unlawful. In my view, only a competent court can
grant decree of divorce and no divorce can be granted to a party governed by
Hindu Marriage Act or Special Marriage Act, based on such consent letter. In my
view divorce can not be granted by parties by such writing unless decree is
passed by competent court annulling such marriage. In my view, marriage of the
first petitioner with the said deceased is thus void and petitioner no.1
therefore cannot be considered as a legal heir of the said deceased. Petitioner
nos.2 and 3 being daughters born out of such wedlock would be entitled to share
in the property of the said deceased. Mother of the said deceased is also one
of the legal heir of the said deceased and would be one of the legal heir and
would be entitled to share in the property of the said deceased.
13. Since respondent had not disclosed the names
of the petitioner nos. 2 to 4 as legal heirs of the said deceased in the
petition filed for issuance of legal heirship certificate, order passed by this
court to that extent deserves to be modified.
14. I, accordingly pass following order :-
(a) Petitioners would be entitled to include the
names of petitioner nos. 2 to 4 in the legal heirship certificate issued by
this court on 12th March, 2010 in Petition No. 91 of 2009 as legal heirs issued
under section 2 of the Bombay Regulation VIII of 1827 in favour of the
respondent.
(b) Respondent is directed to return the original
of the said heirship certificate dated 12th March, 2010 to kvm MPT110.11 the
Prothonotary and Senior Master of this Court within two weeks from today for
cancellation and for issuance of fresh legal heirship certificate.
(c) Prothonotary and Senior Master is directed to
issue a fresh legal heirship certificate under section 2 of the Bombay
Regulation VIII of 1827 in the name of respondent jointly with petitioner nos.
2, 3 and 4 within two weeks from the date of the respondent submitting the
original of such certificate issued by this court earlier issued on 12th March,
2010.
(d) petition is disposed of in the aforesaid
terms.
(e) No order as to costs.
[R.D. DHANUKA, J.]
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ABHISHEK
04012020
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