IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 537 of 2000. Decided on : 24.5.2010. Naro …Appellant. Versus Swarno and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. N.K.Thakur, Advocate. For the respondents : Mr. Y. Paul, Advocate for respondents No.1, 3 and 5. Kuldip Singh , Judge (Oral) The plaintiff has come in appeal against judgment, decree dated 21.9.2000 passed by the learned District Judge, Chamba in Civil Appeal No. 12 of 1999 modifying the judgment, decree dated 31.12.1998 passed by the learned Senior Sub Judge, Chamba in Civil Suit No. 526 of 1993.. 2. The facts, in brief, are that appellant had filed a suit against Seelo for declaration to the effect that Seelo is not legally wedded wife of Rasilo. The appellant is only legally wedded wife of deceased Rasilo and as such, she is entitled to receive the service benefits of deceased Rasilo from the Chamera Project. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 3. It is also the case of the appellant that Rasilo was employed as Beldar with the Chamera Project and had been residing as tenant in the house of Seelo in village Maska, Pargna Bhalei, Tehsil Salooni, District Chamba. Rasilo died on 13.6.1991 and his last rites were performed by his son in his village Drabhoon. Baldev was born to appellant from the loins of Rasilo. Seelo was married to one Jeet Bhadur. Seelo in connivance with the authorities of the Chamera Project, got herself recorded as wife of Rasilo in the nomination form in service book of Rasilo which is totally wrong and illegal. The appellant requested Seelo to get her name removed as wife of Rasilo from the nomination form of Rasilo, she declined and therefore, the suit was filed. 4. Seelo contested the suit by filing written statement wherein she took preliminary objections of estoppel and maintainability. On merits, it was alleged that Seelo was legally wedded wife of Rasilo after the divorce of Rasilo with appellant. Rasilo started living with Seelo as her husband, she looked after Rasilo for about 20/25 years. Rasilo appointed Seelo as his nominee in service record. In the written statement she also took the stand that she gave birth to five children from the loins of Rasilo. The replication was filed by the appellant in which she reiterated her case and denied the case set-up by Seelo. During the pendency of the suit, Seelo died, respondents were brought on record as legal representatives of Seelo. 5. On the pleadings of the parties, the following issues were framed:- 3 1. Whether the plaintiff is the legally weeded wife of Shri Rasilo? OPP 2. Whether the plaintiff is estopped from instituting the suit by her act and conduct? OPD. 3. Whether the suit is within time ? OPP 4. Relief. The issues No. 1 and 3 were answered in affirmative and issue No.2 in negative and the suit was decreed by the learned Senior Sub Judge on 31.12.1998. The matter was carried in appeal by Swarno respondent No.1, the learned District Judge on 21.9.2000 modified the judgment, decree dated 31.12.1998 and held that besides Naro and her son Baldev, Swarno and her sister Shakuntla are also entitled to get service benefits and dues of late Rasilo as permissible under the service rules by which deceased Rasilo was governed. The appellant has come in appeal against judgment, decree dated 21.9.2000 passed by the learned District Judge which has been admitted on following substantial questions of law:- 1. Whether the nominee is the only custodian for the estate of the deceased and is entitled to the estate of benefits of the deceased to the exclusion of legal heirs of such deceased? 2. Whether the approach of the learned lower appellate Court is legally sustainable in extending the benefits to the nominee of the deceased? 3. What is the effect of the sanction of mutation of the estate of deceased in the name of appellant and her son alone and whether the learned lower appellate Court is legally justified in ignoring such document of title to claim service benefits of the deceased husband? 6. I have heard Mr. N.K.Thakur, Advocate learned counsel for the appellant and Mr. Y. Paul, Advocate, learned counsel for 4 respondents No.1, 3 and 5. The learned counsel for the appellant has submitted that the learned District Judge has erred in modifying the judgment, decree dated 31.12.1998 passed by the learned trial Court. He has submitted that Seelo in the written statement has stated that she had given birth to five children from the loins of Rasilo but her this stand is totally in conflict with evidence which has come on record. He has also submitted that Seelo has admitted in the written statement that Rasilo had earlier married with Naro appellant and her marriage with Rasilo was after the divorce of Rasilo with appellant. He has submitted that even this has not been proved. There is no evidence of marriage of Seelo and Rasilo on record, therefore, Section 16 of the Hindu Marriage Act, 1955 (for short ‘Act’) is not applicable. He has also submitted that the nomination of Rasilo in the name of persons who are not legal heirs will not entitle them to the retiral benefits of deceased Rasilo. At the most they are only the trustees of the amount and answerable to legal heirs but once the matter is in civil court then ultimate decision of the Civil court will prevail over the nominations made by the employee. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that no fault can be found with the findings recorded by the learned District Judge. The case is fully covered by Section 16 of the Act. 7. The substantial questions of law No.1 to 3 are inter- connected, therefore, all of them are being taken up together for disposal. The precise question in the lis is the marriage of Seelo with Rasilo and the entitlement of Swarno and Shakuntala to the retiral benefits of Rasilo alongwith appellant and Baldev. It was admitted 5 by Seelo that Rasilo and appellant were earlier married. She has however, taken the stand that divorce took place between Rasilo and appellant and thereafter Rasilo got married with her and she gave birth to five children. In presence of admission of Seelo that Rasilo was earlier married with appellant, the marriage between appellant and Rasilo has been established. The next question is whether any divorce took place between Rasilo and appellant and after the divorce any marriage took place between Seelo and Rasilo and whether Swarno and Shakuntala are the children of Seelo from the loins of Rasilo. In so far as Baldev is concerned, there is no dispute that Baldev is the son of appellant from the loins of Rasilo. 8. PW-1 Naro has stated that Rasilo was her husband. She gave birth to three children from the loins of Rasilo out of them two died and third one is Baldev. She denied that she ever divorced her husband. Seelo used to reside in Bhanota and was married and had 3 – 4 children. Thereafter, she got married with Jeet Bahadur at Maska. She never married with Rasilo. PW-2 Man Singh is the Vice President of Panchayat Bhalei and he has stated that Rasilo was resident of his Panchayat. The name of his wife is Naro, who hever divorced her husband Rasilo. The last rites of Rasilo were performed by appellant. Rasilo never performed marriage with Seelo, who is wife of Jeet Bahadur. 9. DW-1 Swarna has stated that name of her mother is Seelo who was married with Rasilo. She gave birth to two children from the loins of Rasilo namely Shakuntala and Swarna. The witness gave her age 20 years at the time of making the statement. In cross-examination, she has stated that she does not know whether 6 Seelo and Rasilo were ever married. DW-2 Amar Nath is a witness of record and has stated that as per record the name of wife of Rasilo is Seelo. Ex.P-1 is the copy of Family Register Part-1 where names of Rasilo, Naro, Baldev Ram, Sheelo W/o Baldev Ram and Santosh Kumari D/o Baldev Ram are recorded as family members of Rasilo. Ex.P-2 is the copy of jamabandi for the year 1988-89 in which in remarks column it has been stated that vide mutation No. 152 dated 6.7.1991 the estate of Rasilo has been mutated in favour of Baldev Ram, son, Naro Widow and Smt. Panjabo, mother. This is the entire evidence led by the parties in the case. 10. Section 16 of the Act is as follows:- “16. 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 had 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 such rights by reason of his not being the legitimate child of his parents.” 7 11. The perusal of Section 16 indicates that there must be a marriage which is void or not a void marriage. In Ajay Singh (deceased by LRs) and etc. v. Tikka Brijendra Singh & Ors. AIR 2007 HP 52, it has been held that a bare look at S. 16 presupposes the factum of a marriage, whether it was a void marriage or it was not a void marriage. In the present case, no evidence has been led by the respondents regarding the factum of marriage of Seelo and Rasilo so as to apply Section 16 of the Act in favour of Swarna and Shakuntala. The respondents have not led any evidence to establish that Seelo and Rasilo were living as husband and wife and they were recognized as such in the society. Moreover, in the written statement Seelo has pleaded that from the loins of Rasilo she has given birth to five children. On the contrary, DW-1 Swarna has stated that Seelo has given birth to two children namely Shakuntala and Swarna. This is material contradiction between the pleaded case of the respondents and the evidence led by them. No doubt, in Ex.P-1 copy of Family Register Part-1 there is one lady Sheelo which has been shown as family member of Rasilo but she has been shown as wife of Baldev Ram S/o Rasilo and therefore, respondents cannot take benefit of this entry which is incorporated in Ex.P-1. The estate of Rasilo otherwise has been mutated in favour of Naro, Baldev and Punjabo. Thus seen from any angle, the respondents have not proved marriage of Rasilo with Seelo and therefore Sawarna and Shakuntla cannot take benefit of S.16 of the Act to claim right in the estate of Rasilo. The nominees other than legal heirs of Rasilo in nomination papers have no right to utilize the retiral benefits of 8 Rasilo, they at the most hold the amount in trust and accountable to the legal heirs of Rasilo. 12. The learned District Judge has not properly appreciated the evidence on record as well as Section 16 of the Act. The impugned judgment and decree are not sustainable. The substantial questions of law No.1 to 3 are decided in favour of the appellant and against the respondents. 13. No other point was urged. 14. The result of the above discussion, the appeal is allowed, judgment, decree dated 21.9.2000 passed by the learned District Judge, Chamba are set-aside and the judgment, decree dated 31.12.1998 passed by the learned Senior Sub Judge, Chamba are restored with no order as to costs. ( Kuldip Singh ) Judge. May 24, 2010. (GR)