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 ofNagendrappaNatikar (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 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.
BOMBAY HIGH COURT
Vandana Bhimrao Jadhav and Others Vs. Sagar Bhimrao Jadhav
Citation;2014(2) MHLJ 274 Bom
Court : Mumbai
Judge : R.D. DHANUKA
Decided On : Oct-22-2013
Case Number : Misc. Petition No. 110 of 2011 In Misc. Petition No. 91 of 2009
By this petition, petitioners seek revocation of the heirship certificate granted by this court by an order dated 12th 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 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 10th 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 4th August, 2010 issued by Buddhist Society of India certifying that petitioner no.1 and the 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 10th 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 16th 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 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 heirshipcertificate shall be granted in favour of the petitioners.
6. Learned counsel placed reliance upon the judgment of the Supreme Court in case of RameshwariDevi 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 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.â€
7. Relying upon the judgment of Supreme Court in case of RameshwariDevi (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 heirshipcertificate 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 NagendrappaNatikar 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."
11. 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 ofNagendrappaNatikar (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 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 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.
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