Sunday, 1 March 2015

Whether succession certificate can be denied to widow on ground that she was unchaste?


 A single Bench of High Court of Andhra Pradesh in case of Narsimhulu and others v. Smt. Manemma, reported in MANU/AP/0257/1988 : AIR 1988 AP 309 has held: Unchastity of a widow is not a bar to inherit her deceased husband's estate. Section 4 provides that any pre-existing law, which is inconsistent with the provisions of the Act, shall ceased to have effect. Sections 24 to 26 prescribe disqualifications; and Section 28 removes disabilities. Under the Shastrik law preceding the Act, unchastity of a widow was a disqualification. But the legislature did not engraft the unchastity as a disqualification.
10. I am in respectful agreement with the ratio of law laid down by the High Court of Andhra Pradesh in the case referred hereinabove, and in my considered opinion, unchastity of a widow is not a bar to inherit her deceased husband's estate under the provisions of the Act of 1956.
11. The unchastity of a wife is certainly a ground for divorce but in the absence of a decree of divorce, cannot be pressed into service to disinherit even a unchaste wife from claiming her rights as a widow.
12. A decree of divorce can only be granted by a Court of competent jurisdiction, exercising powers under the Hindu Marriage Act. The mere fact that a woman is abandoned by her husband or that a woman after being abandoned by her husband live with another man, would not raise an inference that their marriage stands dissolved and, therefore, in the absence of proof of divorce between appellant and deceased Ashok Moti Ram Kamley, appellant's right to inherit the property of her husband cannot be denied.
IN THE HIGH COURT OF CHHATTISGARH
Civil Revision No. 25 of 2011
Decided On: 17.04.2012
Appellants: Ranjana Kamble
Vs.
Respondent: Smt. Ranjana alias Vimaltai and others
Hon'ble Judges/Coram:
Nawal Kishore Agarwal, J.
Citation: AIR2012Chh167, I(2013)DMC229

1. The instant revision filed under Section 384(3) of the Indian Succession Act, 1925 (for short 'the Act') is directed against the appellate order dated 14-10-2011 passed by District Judge, Korba in Misc. Civil Appeal No. 5/2009 arising from the order dated 15-1-2009 passed by 1st Civil Judge, Class-I, Korba, in Succession Case No. 15/2002. Brief facts of the case are that : One Ashok Moti Ram Kamley died on 26-6-2002. Respondent Nos. 1 to 3 claiming to be wife and children of late Ashok Moti Ram Kamley filed an application under Section 372 of the Act for grant of Succession Certificate, to receive retiral dues as well as Rs. 33,000/- lying deposit in the State Bank of India, Branch Korba and Rs. 50,000/- lying deposit, with the Life Insurance Corporation of India. The trial Court holding, marriage of respondent No. 1 with deceased Ashok Moti Ram Kamley as null and void; respondent Nos. 2 and 3 as his illegitimate children; appellant as legally wedded wife of deceased; and respondent No. 8 as his mother, granted succession certificate in their favour.
2. On an appeal preferred by respondent Nos. 1 to 3, the First Appellate Court held, the appellant re-married with one Chandan Singh in the life time of deceased and has forfeited her right to succeed the estate of the deceased, modified, the order and granted succession certificate in favour of respondent Nos. 2, 3 and 8. Hence, this revision.
3. Shri Shailendra Dubey, learned counsel appearing for the appellant referring to Sections 24 to 28 of Hindu Marriage Act and placing reliance upon the judgment of Andhra Pradesh High Court in case of Narsimhulu and others v. Smt. Manemma, MANU/AP/0257/1988 : AIR 1988 AP 309, would submit: the alleged re-marriage of the appellant with Chandan Singh in the life time of deceased Ashok Moti Ram Kamley is null and void in view of Section 5(i)of the Hindu Marriage Act, 1955 (for short "the Act of 1955), and, therefore, that marriage is no marriage in the eye of law. At the most, it can be said the appellant was unchaste at the time of her husband's death; unchastity of a widow is not a bar to inherit her deceased husband's estate, and therefore, the appellate Court had committed jurisdictional error in rejecting the claim of appellant along with respondent Nos. 2, 3 and 8. He further submits that appellant is also nominee in the service record of deceased Ashok Motiram Kamley and the mother of deceased also deposed in her favour.
4. Per contra, learned counsel appearing for respondents would submit: appellant walked out of her husband and started living with Chandan Singh. Walking out of appellant from the house of her first husband/deceased was irretrievable and irreversible and raises an inference that their marriage stands dissolved and, therefore, the first Appellate Court had rightly decided the matter which does not call for any interference.
5. I have heard learned counsel appearing for the parties and perused the material available on record including order impugned.
6. In view of Section 5(i) of the Act of 1955 the alleged re-marriage of the appellant with Chandan Singh in the life time of deceased Ashok Moti Ram Kamley is null and void and is no marriage in the eye of law. Therefore, Mr. Dubey is right in his submission that at the most it can be said, the appellant was unchaste at the time of her first husband's death.
7. The Hindu Succession Act, 1956 came into force on 17-6-1956. It has brought about fundamental and radical changes in the law of succession. Overriding application has been given to the Hindu Succession Act, 1956, and in effect, it repeals all previous laws relating to intested succession whether taxual, customary or statutory.
8. Under the old Hindu Law, a widow who is unchaste at the time of her husband's death was not entitled to inherit his estate. But the Section 28 of the Hindu Marriage Act, 1956 discards almost all the grounds, which imposed exclusion from inheritance. It rules out disqualification on any ground whatsoever excepting those expressly recognized by any provisions of the Act. Unchastity of a widow is not a disqualification under the Act of 1956.
9. A single Bench of High Court of Andhra Pradesh in case of Narsimhulu and others v. Smt. Manemma, reported in MANU/AP/0257/1988 : AIR 1988 AP 309 has held: Unchastity of a widow is not a bar to inherit her deceased husband's estate. Section 4 provides that any pre-existing law, which is inconsistent with the provisions of the Act, shall ceased to have effect. Sections 24 to 26 prescribe disqualifications; and Section 28 removes disabilities. Under the Shastrik law preceding the Act, unchastity of a widow was a disqualification. But the legislature did not engraft the unchastity as a disqualification.
10. I am in respectful agreement with the ratio of law laid down by the High Court of Andhra Pradesh in the case referred hereinabove, and in my considered opinion, unchastity of a widow is not a bar to inherit her deceased husband's estate under the provisions of the Act of 1956.
11. The unchastity of a wife is certainly a ground for divorce but in the absence of a decree of divorce, cannot be pressed into service to disinherit even a unchaste wife from claiming her rights as a widow.
12. A decree of divorce can only be granted by a Court of competent jurisdiction, exercising powers under the Hindu Marriage Act. The mere fact that a woman is abandoned by her husband or that a woman after being abandoned by her husband live with another man, would not raise an inference that their marriage stands dissolved and, therefore, in the absence of proof of divorce between appellant and deceased Ashok Moti Ram Kamley, appellant's right to inherit the property of her husband cannot be denied.
13. For the reasons mentioned hereinabove, in my considered opinion, the first appellate Court had committed a gross jurisdictional error in not granting succession certificate also in favour of appellant and in reversing the order of trial Court.
14. In the result, the Civil Revision is allowed. The order impugned passed by first Appellate Court is set aside. The order passed by the trial Court is restored. However, it is made clear the enquiry for grant of succession certificate under Section 373 of the Indian Succession Act is an enquiry which is summary in nature. All that is required to do is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right of succession, and on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorizing him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heir inter se and the respondents are free to pursue their remedy by filing a regular civil suit.
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