RCANO.16/15 IN THE COURT OF ANKUR JAIN: ADDL.DISTRICT JUDGE- 10 (CENTRAL): TIS HAZARI COURTS: NEW DELHI RCA No. 16/15 (61166/16) 1. Smt. [ENTITY] r/o C-7, 2nd floor, Usha Niketan Safdarjung Development Area, New Delhi. 2. Ms. [ENTITY] d/o late Sh. [ENTITY] r/o C-7, 2nd floor, Usha Niketan Safdarjung Development Area, New Delhi. Appellants Vs. [ENTITY] r/o A-7, 2nd floor Shivalik , New Delhi. 2. Master [ENTITY] s/o [ENTITY] r/o A-7, 2nd floor Shivalik , New Delhi. [ENTITY] s/o [ENTITY] r/o A-7, 2nd floor Shivalik , New Delhi. 4. Commissioner of Customs (Import & General) New Customs House Near IGI Airport New Delhi. 5. Pay and Accounts officers New Customs House Near IGI Airport, New Delhi Respondents PageNo.1 RCANO.16/15 Date of Institution of appeal : 06.09.2014 Date of reserving judgment : 03.05.2018 Date of pronouncement : 10.05.2018 JUDGMENT
1. By this order I shall decide an appeal filed by [ENTITY] against the judgment and order dated 23.5.2014 passed by the Court of Ld. Administrative Civil Judge cum Addl. Rent Controller (Central), Delhi.
2. Brief facts of the case are that [ENTITY], Master [ENTITY] and Master [ENTITY] had filed a petition seeking succession certificate on 4.09.2002 U/[SECTION] of the [ACT] in which [ENTITY] claimed herself to be the widow of Sh. [ENTITY] . In the said petition it was disclosed by her that appellant no.1 herein i.e. [ENTITY] is the wife of deceased and appellant no. 2 i.e. [ENTITY] is his daughter. During the pendency of the said petition on 26.02.2013, appellants also filed a separate succession petition under the [ACT] for grant of succession certificate in their favour qua the debts and securities left behind by deceased namely Sh. [ENTITY]. It was pleaded in the said petition that Sh. [ENTITY] died in a fatal accident on 11.06.2002 and appellant no. 1 was a legally wedded wife of the deceased. The marriage was solemnised on 28.6.1979 as per Hindu Rights and ceremonies and appellant no. 2 was born out of the wedlock on 30.04.1996. The deceased was working in the office of Commissioner of Customs and was registered under the CGHS scheme. On 12.4.04 [ENTITY] i.e. respondent no.1 herein made a statement before the trial court that since the petition filed by her was not maintainable it may be dismissed and also gave a statement that she would not file any reply to the petition filed by appellant. Her statement was recorded. Similar statement was made by mother of the deceased to the effect that she had no objection to the grant of succession certificate in favour of appellants in respect of debts and securities of the deceased [ENTITY]. The petition of [ENTITY] was dismissed as withdrawn. Notice of the petition filed by the appellant was issued to the Commissioner of Customs who gave their reply and it was informed by the Commissioner of Customs that respondent no.1 has given her no objection. Subsequently, [ENTITY] filed an application before the ld.trial court seeking recalling of the order dated 12.04.2004, and filed objections to the petition filed by the appellants.
3. Vide order dated 6.5.2010 it was directed by the Ld. Trial Court that disputes cannot be decided without adducing evidence by both the sides. Against this order the respondents herein preferred Civil Miscellaneous petition before the Hon'ble High Court of Delhi. The same was dismissed. Thereafter evidence was led by the appellant and she examined herself as PW-1. On the other hand, respondent examined three witnesses RW1 [ENTITY], RW 2 [ENTITY] and RW3 [ENTITY].
4. After hearing the parties vide impugned order it was held that appellants and respondent nos. 2 and 3 are entitled to 1/4th share each qua the service benefit of the deceased Sh. [ENTITY]. Against this order an appeal was filed by the appellant before the Hon'ble High Court which came to be dismissed vide order dated 27.08.2014 on the ground that appeal is to be filed before District Courts. Hence, the present appeal was filed by the appellants.
5. Ld counsel for the appellant has argued that the ld trial court has not considered the judgment relied by the appellants. He submits that for application of [SECTION] of [ACT], solemenization of second marriage is must. He submits that ld trial court has wrongly placed reliance upon averments made in the application U/[SECTION] [ACT], order of Tehsildar, the parivar register. He submits that the findings of the ld trial court are perverse and illegal and are liable to be set aside. He has relied upon the judgments titled as Ms. [PRECEDENT], Master [ENTITY] V. Bhuvnesh Gupta 201(2014) DLT 161, [PRECEDENT], [ENTITY] through [PRECEDENT].
6. On the other hand, counsel for the respondent has placed reliance upon [SECTION] of the [ACT] and [SECTION] of [ACT]. In support of its case, the respondent has relied upon the following judgments:- [PRECEDENT]; [PRECEDENT]; [ENTITY] V. M. R. Sunil Kumar and Ors.
MANU/KA/3398/2004; [ENTITY] & Anr. V. R. Vijaya Renganathan & Ors. (2010) 11 SCC 483; [ENTITY] V. Aysha & Anr. (2014) 16 SCC 300; Madan Mohan Singh & Ors. V. Rajni Kant & Anr.; [PRECEDENT]. [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; The [PRECEDENT]. 2012 SCC online Del 3201
07. I heard the ld. Counsel for the parties and have perused the record.
08. The judgments of Gujarat State Road Transport Corporation (Supra), Montford Brothers of St. Gabriel & Anr. (Supra) & [ENTITY] (Supra), defines legal representatives. There can be no dispute to the proposition of law but all the judgments were given under [ACT] and as such not applicable to the facts of the case. The judgment of [ENTITY] (supra) and [ENTITY] (supra) are on the presumption of valid marriage.
09. The basic contention of the ld counsel for the appellant is that [ENTITY] has not pleaded solemenization of the marriage between her and deceased. Therefore the children could not have been granted succession certificate and the reliance by the ld Trial Court on the application U/[SECTION] [ACT] is erroneous. I am in agreement with ld counsel for the appellant that the ld trial court could not have relied upon the averments made in application U/[SECTION] [ACT], for coming to the conclusion that respondent nos. 2 and 3 are entitled to succeed the estate of the deceased. The findings based on this document is an irregularity committed by ld. Trial court. However [SECTION] of the [ACT] clearly raises presumption in favour of validity of a marriage. The Hon'ble Supreme Court in [PRECEDENT] has held that:
"It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premises, the learned trial Judge has arrived at a finding that the deceased [ENTITY] had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage."
10. The Hon'ble Supreme Court further referred to the judgment of Privy Council in [PRECEDENT] and [ENTITY] Khan V. Mohd. Ibrahim Khan AIR 1929 PC. 135, both these judgments are to the effect that law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years . In light of the above said judgment it is clear that a presumption can be raised in favour of a valid marriage u/[SECTION] of the [ACT]. Though the presumption is rebuttable but a heavy burden lies on a person who seeks to prove that no marriage took place.
11. In facts of the present case, [ENTITY] in her evidence by way of affidavit has relied upon the birth certificate of her elder son which was exhibited as Ex. RW-1/3, a certificate issued by Laxman Public School stating the father's name to be [ENTITY] which was exhibited as Ex. RW1/4, the birth certificate of her younger son was exhibited as Ex. RW1/6. The aforesaid documents clearly shows that name of the deceased find mention in column against father's name. There is no cross examination on this aspect. The document Ex.RW1/3, RW1/4 or RW1/6 have gone unrebutted and unchallenged. It is not the case of the appellant, that these documents were forged and fabricated. The letter issued by M/s. United India Insurance Company which is dated 09.08.2002 wherein [ENTITY] was acknowledged as a nominee, document Mark A which is an application for credit cards show that deceased has mentioned [ENTITY] as her wife. From these documents, a presumption can be raised in favour of a valid marriage. There is further the evidence of RW2 and RW3 who have deposed that [ENTITY] and his mother [ENTITY] used to live with [ENTITY]. Again there is no cross examination to this witness that [ENTITY] never resided with [ENTITY].
12. No evidence has been led by petitioner to rebut the presumption. On the contrary, PW-1 i.e. the appellant initially in her cross examination conducted on 20.08.2011 denied that she ever knew objector i.e. the respondent [ENTITY]. However she admitted her signatures on an MOU dated 10.04.2004 which was executed between her and [ENTITY]. She also admitted that [ENTITY], mother of deceased [ENTITY] died at the residence of [ENTITY]. She has also admitted in her cross examination that she had filed a writ petition before the Hon'ble High Court of Delhi which was exhibited as Ex. PW1/D-1 seeking transfer of investigation of FIR No. 639/05 PS Hauz Khas. In the said petition she has categorically stated that in August 1997, her elder daughter was taken away by [ENTITY] and [ENTITY], [ENTITY] is the brother of [ENTITY]. These facts show that she knew [ENTITY] and her relationship with her husband prior to the filing of the succession petition but has chosen not to acknowledge her for the reasons best known to her. In my opinion, the appellant has not discharged the burden of rebutting the presumption with regard to the validity of the marriage. The judgment of [PRECEDENT] is not applicable to the facts of the case in asmuch as said judgment does not taken into consideration the presumption with regard to the validity of the marriage U/[SECTION] of the [ACT].
13. In [ENTITY] V. Nira Nangmo 1970 (6) DLT 265 the Hon'ble Delhi High Court while relying on the judgment [ENTITY] (supra) has held that there is a presumption in favour of marriage. In facts of the case of [ENTITY], the man and woman had been living together for five years and a child was born out of the said union. It was clearly held that there is a presumption of marriage and legitimacy of the child. It was observed that:
" the conclusion is irresistible that they must have been looked up on by the society as husband and wife. Legal presumption is always been raised from such relationship in favour of marriage and legitimacy of children"
14. The Hon'ble Supreme Court in [ENTITY] V. R. Vijaya Renganathan (2010) 11 Supreme Court Cases 483 has held that :
[SECTION] of the [ACT] provides for a presumption of a child being legitimate and such a presumption can only be displaced by a strong preponderance of evidence and not merely by a balance of probabilities as the law has to live in favour of an innocent child from being bastardized.
It is further held that Thus, it is evident that [SECTION] of the Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object. The Hon'ble Supreme Court in [ENTITY] (supra) quoted with approval the judgment of [ENTITY] V. State of Bihar (2000) 2 SCC 431
15. The above-said judgment clearly leans in favour of legitimacy of an innocent child. It also says that [SECTION] of the [ACT] raises a presumption and which can be rebuild not on the basis of probabilities but by strong evidence. In the present case, there is nothing on record to suggest that this presumption has been rebutted either in the cross examination of RW1 or from the testimony of PW-1. In fact the birth certificates of both the children were never challenged by the appellants.
16. In light of the above authoritative pronouncement, it cannot be said that the children who were born out of union of [ENTITY] and deceased [ENTITY] will not be entitled to share. Undoubtedly Ms. [ENTITY] is legally wedded wife of the deceased and there can be no dispute to that. However merely because appellant/[ENTITY] was legally wedded wife would not by itself entitle her to succession certificate vis-a-viz the two children. Under these circumstances, even though appellant is the only legitimate wife, however the two children born out of [ENTITY] would be entitled to the share. They have no fault and cannot be deprived of their share.
17. The Judgment of Master [ENTITY] (supra) is not applicable to the facts of the case as it is distinguishable on the facts of the case and the said judgments does not considered the judgment of [ENTITY] (supra) & [ENTITY] (supra). Accordingly, for different reasons the order of Ld Trial court is upheld.
18. Appeal filed by appellant is dismissed.
19. File be consigned to Record Room after completion of necessary formalities.
20. Copy of the order be placed on record of the Ld. Trial Court.
Trial court record be sent back. Digitally signed ANKUR by [ENTITY] Date: 2018.05.11 14:22:03 +0530 Dictated & Announced in the ([ENTITY]) open Court on 10.5.18 Addl. District Judge-10 (Central) Tis Hazari Courts: Delhi