IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.304 of 1996 . Judgement reserved on:31.12.2007 Date of decision:25.2.2008 Premi & Ors ….. Appellants. Vs. Ram Lok & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the Respondents : Mr. Ramakant Sharma,Advocate. Kuldip Singh, Judge. The plaintiffs are in appeal against the judgment, decree dated 10.6.1996 passed by learned District Judge, Solan in Civil Appeal No.46-NL/13 of 1993 confirming judgment, decree dated 10.9.1993 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No.214/1 of 1988. 2. The facts in brief are that appellants-plaintiffs filed a suit for declaration that they are co-owners/co-sharers in joint possession of suit property, more specifically detailed in the plaint, to the extent of 3/8 shares of deceased Ram Rakha and they have prayed for decree Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… of joint possession in their favour to the extent of 3/8 shares of Ram Rakha along with decree of permanent prohibitory injunction. 3. The case of the appellants is that Premi appellant No.1 is the widow of Ram Rakha deceased by way of karewa marriage and appellants-plaintiffs No.2,3 are son and daughter and born to appellant No.1 from said marriage. Ram Rakha was co-owner in joint possession of the house standing on the suit land and he died in the year 1977. The respondents-defendants wrongly got the mutation attested exclusively in their favour regarding the estate of Ram Rakha. 4. The suit of the appellants was contested by respondents-defendants and they have taken preliminary objections of maintainability, valuation, jurisdiction, limitation and estoppel. On merits, they have denied that appellant No.1 is the widow of Ram Rakha, they have also denied that appellants No.2,3 are son and daughter of Ram Rakha. The karewa marriage of appellant No.1 with Ram Rakha has also been denied. It has been submitted that appellant No.1 was wife of Durgu and after the death of Durgu she remained wife of Pohlo and she also lived as wife of Asa Ram from whom she gave birth to one Mani Ram on 10.12.1982. The appellant No.1 got allotment of land measuring 5 bighas 7 biswas from Govt. in village Alyon describing herself to be the widow of Durgu. There is no custom of Karewa among the Rajputs during the life time of wife. 5. The trial Court has framed the following issues:- 1. Whether the plaintiffs are co-sharers in the suit land alongwith the defendant, as alleged? OPP …3… 2. Whether the plaintiff No.1 is legally wedded wife of deceased Ram Rakha, as alleged? OPP… 3. If issue NO.2 is proved whether the plaintiffs No.2 and 3 are son and daughter of the deceased Ram Rakha out of the wed lock, as alleged…OPP 4. Whether the suit is not maintainable?...OPD 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?...OPD 6. Whether the suit is bad for want of better particulars of the suit land? …OPD 7. Whether the suit is barred by limitation?..OPD 8. Whether the plaintiffs are estopped by their act, conduct and acquiescence to file the present suit ?..OPD 9. Whether the suit is not maintainable on behalf of the defendants No.2 and 3 they being minor?...OPD 10. Relief. The trial Court has held that appellant No.1 is not the wife of Ram Rakha and appellants No.2,3 are also not son and daughter of Ram Rakaha and dismissed the suit on 10.9.1993. The appellants filed appeal against judgment, decree dated 10.9.1993 which has also been dismissed by learned District Judge, Solan on 10.6.1996, hence this appeal which has been admitted on following substantial questions of law:- (i) Whether there has been misreading and mis- appreciation of the pleadings of the parties? (ii) Whether the appellants are entitled to benefit of section 16 of Hindu Marriage Act? (iii) Whether on account of mis-reading and mis- appreciation of documentary evidence exhibit PW- 1/A, document of Karewa marriage, exhibit PW-2/B, …4… the birth certificate of appellants NO.2 & 3, findings as recorded are vitiated? 6. I have heard Mr. G.D. Verma, Senior Advocate, learned counsel for the appellants and Mr. Ramakant Sharma, Advocate appearing on behalf of the respondents and gone through the record. On behalf of the appellants it has been submitted that appellant No.1 is the legally wedded wife of Ram Rakha and appellants No2,3 are the son and daughter of appellant No.1 from Ram Rakha. The appellants are entitled to inherit the share of Ram Rakha after his death. The Courts below have mis-construed and mis-interpreted Ex.PW-1/A dated 27.12.1972 deed proving Karewa marriage of appellant No.1 with Ram Rakha. The Courts below have also not properly appreciated Ex.PW-2/A birth certificate of appellant No.3 proving her to be the daughter of Ram Rakha and Ex. PW-2/B birth certificate of appellant No.2 establishing him the son of Ram Rakha. It has also been submitted that Section 16 of the Hindu Marriage Act, 1955 ( for short Act) has not been properly appreciated by the Courts below. The contention of learned counsel for the appellants is that even if the marriage between Ram Rakha and appellant No.1 is held to be void in that case also the appellants No.2,3 being the children of Appellant No.1 from Ram Rakha are entitled to inherit the share of Ram Rakha. The learned counsel for the respondents has submitted that the pleadings with respect to karewa marriage of appellant No.1 with Ram Rakha are not in accordance with law. No marriage of appellant No.1 with Ram Rakha has been proved. The appellant No.1 remained the wife of Durgu, Pohlo and Asa Ram. In absence of …5… proof of marriage of appellant No.1 with Ram Rakha, appellants No.2,3 are not entitled to take benefit of Section 16 of the Act. He has supported the impugned judgment, decree. Substantial questions of Law No.1 to 3 7. The substantial questions of law No.1 to 3 are interconnected therefore, these are being disposed of collectively. Dasonda who died during the pendency of the appeal was wife of Ram Rakha when appellant No.1 allegedly got married with Ram Rakha by way of Karewa marriage. The learned District Judge in para-22 of the judgment has observed that on 27.12.1972 Dasonda was the wife of Ram Rakha. The marriage of Dasonda with Ram Rakha prior to alleged marriage of appellant No.1 with Ram Rakha has not been disputed by either side at the time of hearing. Now the question is whether appellant No.1 got married with Ram Rakha by way of Karewa marriage and appellants No2,3 are children of appellant No.1 from Ram Rakha and whether appellants No.2,3 have any claim regarding the estate of Ram Rakha under Section 16 of the Act. 8. In the plaint the appellants have pleaded that appellant No.1 is the wife/ widow of Ram Rakha deceased by way of Karewa marriage. Section-7 of the Act provides that Hindu Marriage may be solemnized in accordance with customary rites and ceremonies of either party thereto. It has not been pleaded in the plaint that at the time of alleged marriage of appellant No.1 with Ram Rakha Karewa marriage was prevalent in the family of appellant No.1 or Ram Rakha. The custom of karewa marriage has also not been pleaded explicitly …6… in the plaint in accordance with law. The stand of the respondents is that karewa marriage is not prevalent among Rajputs. The appellant No.1 has neither pleaded nor proved the essential ceremonies to complete the marriage by way of karewa marriage. The learned counsel for the appellants has heavily relied Ex.PW-1/A dated 27.12.1972 in support of karewa marriage of appellant No.1 with Ram Rakha. He has submitted that long co-habitation of appellant No.1 has been established with Rama Rakha, therefore, law will presume that they lived as husband and wife. There is an averment in Ex.PW- 1/A that Ram Rakha was looked after by Premi, Gurdyala son of Premi and Yog Raj for the last about five years. There is also an averment that she was living with Ram Rakha as wife. In other words deed Ex.PW-1/A was not written at the time of karewa marriage between appellant No.1 and Ram Rakha. As per Section 7 of the Act marriage can be solemnized in accordance with the customary rites and ceremonies of either party thereto. The appellants have led no evidence regarding the customary rites and ceremonies under which the marriage of appellant No.1 and Ram Rakha was performed. There is no proof of solemnization of marriage of appellant No.1 with Ram Rakha either by way of karewa marriage or in any other form. The alleged marriage of appellant No.1 and Ram Rakha is void under Section 11 of the Act in as much as on the date of said marriage Dasonda wife of Ram Rakha was alive and therefore, marriage of appellant No.1 with Ram Rakha was not legally permissible under Section 5 of the Act. The learned counsel for the appellants faced with this situation has submitted that Ram Rakha and appellant No.1 …7… lived as husband and wife for long time, therefore, there is a presumption in law that they lived as husband and wife under a marriage. This submission of the learned counsel for the appellants has no force. It has come on record that Premi was wife of Durgu and as widow of Durgu she obtained Nautor land in the year 1975 on the basis of application Ex.DW-4/A. In affidavit dated 12.7.1975 Ex.DW-4/B she has shown, represented herself as widow of Durgu. The Govt. ultimately vide Ex.DW-4/E granted land to appellant No.1 as widow of Durgu and issued certificate of ownership in her favour of the land. It has also come on record that appellant No.1 married one Pohlo and from the loins of Asa Ram she gave birth to Mani Ram on 10.12.1982 and a certificate to this effect is Ex.D-2. The submission of learned counsel for the appellants that appellant No.1 cohabited with Ram Rakha for long time, therefore, she should be presumed to be the wife of Ram Rakha, has not been supported by the evidence on record. In AIR 1965 SC 1564, the Hon’ble Supreme Court has held that the word ‘solemnize’ means in connection with a marriage to celebrate the marriage with proper ceremonies and in due form. It follows, therefore, that unless the marriage is celebrated or performed with proper ceremonies and due form it cannot be said to be ‘solemnized’. In Surjit Kaur vs. Garja Singh and others (1994) 1 Supreme Court Cases 407, the Hon’ble Supreme Court has held that mere living as husband and wife does not confer status of husband and wife. Therefore, even if, it is assumed Premi appellant No.1 and Ram Rakha lived together that …8… will not confer on appellant No.1 the status of wife, widow of Ram Rakha. 9. The further question is whether appellants No.2,3 are entitled to take benefit of Section 16 of the Act so as to claim right in the estate left by Ram Rakha. The Section 16 of the Act is as follows:- “Legitimacy of children of void and voidable marriages –(1) Notwithstanding that marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement* of the marriage Laws ( Amendment) Act, 1976 ( 68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2)Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any …9… such rights by reasons of his not being the legitimate child of his parents”. In Smt. Parayankandiyal Eravath Kanapravan Kalliaanai Amma and others vs. K. Devi and others AIR 1996 S.C 1963, the Hon’ble Supreme Court has considered Section 16 of the Act before and after its amendment. In paras 50, 51, 76 and 79 the Hon’ble Supreme Court has held as follows:- 50. The requirements for the applicability of Section 16 ( as originally enacted), which protected legitimacy, were that : (i) There was a marriage; (ii) The marriage was void under Section 11 or voidable under Section 12; (iii) There was a decree annulling such marriage either under Section 11 or under Section 12; (iv) The child was begotten or conceived before the decree was made. 51. A marriage would be null and void if it was solemnized in contravention of clauses (i), (iv) and (v) of Section 5, Clause (i) prohibits a marriage if either party has a spouse living at the time of marriage. Clause (iv) prohibits a marriage if the parties are not within the degrees of prohibited relationship while clause (v) prohibits a marriage between parties who are the ‘sapindas’ of each other. A marriage in any of the above situations was liable to be declared null and void by a decree of nullity at the instance of either party to the marriage. Section 16 was intended to intervene at that stage to protect the legitimacy of children by providing that children begotten or conceived before the making of the …10… decree would be treated to be legitimate and they would inherit the properties of their parents, though not of other relations. 76. The words “notwithstanding that a marriage is null and void under Section 11” employed in Section 16 (1) indicate undoubtedly the following:- (a) Section 16(1) stands delinked from Section 11. (b) Provisions of Section 16(1) which intend to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened. (c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16(1) was amended. (d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment. (e) Section 16(1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present form, is therefore, no ultra vires the Constitution. 79. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its …11… operation, is limited to the properties of the parents.” 10. In order to take the benefit of Section 16 of the Act there must be marriage of the parents of the children. It is different that such marriage is void or voidable. In absence of marriage of the parents the children cannot take benefit of Section 16 of the Act. The intention of legislature by enacting Section 16 is to give protection to the children notwithstanding that marriage of their parents is null and void. The purpose is to take care of the institution of marriage and not to encourage wholly illicit relationship. The Hon’ble Supreme Court in Jinia Keotin and others vs. Kumar Sitaram Manjhi and others (2003) 1 Supreme Court Cases 730 has held that a laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. 11. In Ajay Singh (since deceased) through his LRs Meenakshi Singh and others vs. Tikka Brijendra Singh and others 2006 (2) SLC 394 while dealing with Section 16 of the Act, it has been held that Section 16 of the Hindu Marriage Act is of no avail or help to the appellants because bare look at Section 16 presupposes the factum of marriage, whether it was a void marriage …12… or it was not a void marriage. In the present case the appellant No.1 has miserably failed to prove her marriage with Ram Rakha. In Ajay Singh supra, it has also been held that the issue of marriage is a question of fact. In the present case both the Courts below on appreciation of evidence have held that appellant No.1 was not married with Ram Rakha. 12. The learned counsel for the appellants has submitted that the Courts below have mis-appreciated Ex.PW-2/A birth certificate of appellant No.3 and Ex.PW-2/B birth certificate of appellant No.2. According to him both these certificates prove that appellants No.2 and 3 are the children of appellant No.1 Premi from Ram Rakha . Ex.PW-2/A is the birth certificate of female child born on 11.7.1974 to Premi and Ram Rakha. The certificate Ex.PW-2/A has not been connected with the birth of appellant No.3 Radha. It has not been proved on record at whose instance entry in the birth register was made showing therein that a female child was born to Premi and Ram Rakha on 11.7.1974. The respondents have disputed that appellant No.3 is the daughter of Premi and Ram Rakha. There was heavy burden on appellants to prove that appellant No.3 is the daughter of Premi aand Ram Rakha. PW-5 Smt. Premi in her statement made in the Court on 4.11.1992 has stated that Radha is 16-17 years old. It means according to Premi the year of birth of Radha comes 1975-1976, whereas birth certificate Ex.PW-2/A is reflecting date of birth of female child as 11.7.1974. Therefore, birth certificate Ex.PW-2/A is of no help to the appellants to prove that this certificate is of Radha appellant …13… No.3 daughter of Premi and Ram Rakha. The birth certificate Ex.PW-2/B is of Yog Raj wherein the date of birth has been shown as 8.6.1972 and he has been shown son of Ram Rakha and Premi. In Ex.PW-1/A dated 27.12.1972 age of Yog Raj has been shown eight months meaning thereby he was born in April 1972. Smt. Premi while appearing as PW-5 on 4.11.1992 has stated that Yog Raj is 19-20 years old. In other words according to appellant No.1 Premi year of birth of Yog Raj comes 1972-1973. It has not been proved at whose instance birth of Yog Raj was recorded. The appellants have failed to prove that appellant No.2 Yog Raj is the son of Premi from Ram Rakha. The two Courts below have properly appreciated the material on record. The marriage of Premi with Ram Rakha has not been proved. On this additional ground appellants No.2 and 3 are not entitled to inherit the estate of Ram Rakha. 13. No other point was urged. 14. The result of the above discussion there is no misreading and mis- appreciation of pleadings, oral and documentary evidence Ex.PW-1/A, Ex.PW-2/B and Ex.PW-2/C. The appellants No.2, 3 are not entitled to inherit the estate of deceased Ram Rakha under Section 16 of the Act nor appellant No.1 is entitled to inherit the estate of Ram Rakha. The appellants have failed to make out any case for interference. The substantial questions of law 1 to 3 are decided against the appellants and in favour of respondents. The appeal fails and is accordingly dismissed. No costs. 25.2.2008. ( Kuldip Singh ) (sks) Judge. …14…