JUDGMENT S.N. Srivastava, J
1. By means of present petition, the petitioners have assailed the concurrent findings recorded by Consolidation Officer, Settlement Officer, Consolidation and the Deputy Director Consolidation dated 17.8.1998, 24.5.2000 and 30.8.2003.
2. Lakshmi Narain, Badri Narain and Jagat Narain sons of Bhawan Das were recorded tenure holders. The dispute in the instant petition pertains to the land of Lakshmi Narain who died in the year 1991. On publication of record under Section 9 of the U.P. Consolidation of Holdings Act, two sets of objections came to be filed-one by Sukh Dei wife of Lakshmi Narain and another by Ajay Kumar and others claiming to be sons of Lakshmi Narain. Two other objections were also filed but the same being of no seminal importance, do not deserve consideration.
3. The background of necessary facts erupting into litigation as borne out from the record is that Lakshmi Narain had two wives one Sukh Dei and the other Radhika Devi. Out of union of Sukh Dei and Lakshmi Narain were born two daughters namely Smt. Kiran Devi and Smt. Meena Devi-petitioners in the instant petition while out of union of Radhika Devi and Lakshmi Narain were born Ashok Kumar, Ajay Kumar, Vijay Kumar and Suresh Kumar arrayed as respondent Nos. 1 to 4. The dispute erupted after the death of Lakshmi Narain in relation to his estate in Khata No. 302. As stated supra, two sets of objections were filed one by Sukh Dei claiming herself to be the sole heir and legal representative of the deceased while another set of objection was filed by respondent Nos. 1 to 4 claiming themselves to be the sons of the deceased. The objections were decided by the Consolidation Officer by means of judgment dated 17.8.1998 and the decision in that judgment leaned in favour of respondent Nos. 1 to 4. Smt. Sukh Dei thereafter took the matter in appeal before the Settlement Officer Consolidation and before the appeal could culminate in decision, Smt. Sukh Dei breathed her last. The petitioners in the instant petition being daughters of Smt. Sukh Dei were brought on record. The decision in appeal also leaned in favour of the respondent Nos. 1 to 4 and therefore, procedure of revision before the Deputy Director of Consolidation was invoked. By means of decision dated 30.8.2003, the Deputy Director of Consolidation also rendered a verdict leaning in favour of respondent Nos. 1 to 4 and it is in this backdrop that the dispute has come up before this Court by means of the present petition.
4. Main stay of the arguments made across the bar by the learned counsel for the petitioners is that the factum of second marriage with Radhika Devi of the deceased was not proved and as such Section 16(1) of the Hindu Marriage Act was not attracted for application and secondly that the contesting opposite parties could not be pronounced as legitimate sons of the deceased and by this reckoning, proceeds the submission, the order passed by Consolidation authorities in hierarchal order cannot be countenanced in approval inasmuch as the consolidation authorities declared the contesting respondents as heirs of Lakshmi Narain on the presumption that Radhika Devi was married to Lakshmi Narain during the lifetime of first wife Sukh Dei which according to the learned counsel for the petitioners was incongruous with law and the rules and in support he cited various decisions the ratio of which shall be dealt with at a later stage. In the ultimate analysis, he canvassed that the findings recorded by the Consolidation authorities being in antagonism of law cannot be sustained and the same are liable to be quashed. Per contra, the learned standing counsel contended that the findings recorded by the consolidation authorities have their foundation in law and the authorities have rendered a concurrent decision taking into reckoning oral as well as documentary evidence adduced in the case.
5. Before I notice and advert to legal aspects, it would be proper to scan the findings recorded by the consolidation authorities. It would appear that both the parties adduced both oral as well as documentary evidence to prop up their respective case. Suresh Kumar one of the contesting respondent was examined orally and he also filed number of documents including certificate issued under Section 8 of Hindu Marriage Act which bears out that marriage of Lakshmi Narain with Radhika was registered in accordance with the provisions of Section 8 of the Hindu Marriage Act. It brooks no dispute that Lakshmi Narain died in the year 1991. It would transpire from a perusal of the judgment that the consolidation authorities took into reckoning voter-list pertaining to the year 1995 of village Kandia filed by Sukh Dei and also various testimonials relating to education of contesting respondents, the educational certificate of the year 1988 pertaining to Suresh one of the contesting respondents issued by U.P. Board of High Court and various other documentary evidence which evinced that it were contesting respondents who performed the last rites of deceased Lakshmi Narain as his sons besides photos displaying Lakshmi Narain and Radhika together and various other documentary evidence. The Consolidation authorities also dwelt upon the aspects urged by the learned counsel for the petitioners that the marriage between Lakshmi Narain and Radhika was void ab initio and demolished this contention by referring to Section 16 of the Hindu Marriage Act and on the reasoning that the marriage between the two had been solemnized in the year 1954 while Hindu Marriage Act came into force in the year 1955. It was in the above backdrop that the consolidation authorities rendered concurrent finding that marriage of Radhika Devi was proved having been solemnized in the year 1954 and it was registered on 17.3.1981 under Section 8 of the Hindu Marriage Act.
6. Irrespective of what has been discussed and held by the consolidation authorities, I feel inclined to delve into the legal aspect whether marriage solemnized by Lakshmi Narain with Radhika Devi was in accordance with law or not. It is this aspect on which pivots the legitimacy of the claims of the contesting respondents to the estate of the deceased. In this connection, I would, in the first instance, like to have acquaintance with the provisions of Section 16(1) of the Hindu Marriage Act. Section 16(1) is quoted below for ready reference.
"16. Legitimacy of children of void and voidable marriage.--(1) Notwithstanding that a marriage is null and void under Section 11 and child of such marriage who would have been legitimate, if the marriage had been valid, shall be legitimate, whether such a 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.
Section 16 refers to Section 11 of the Hindu Marriage Act, and it being relevant and germane to the controversy involved in this petition is also abstracted below :
"Section 11 of Hindu Marriage Act makes it clear that any marriage solemnized after commencement of this Act shall be null and void and on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if so contravenes any of the conditions specified in Clauses (i), (iv) and (v) of section."
Section 11 clearly envisages that any marriage solemnized after commencement of this Act shall be null and void. In the perspective of the above provisions, if the facts of the present case are considered, it leaves no manner of doubt that the marriage between Lakshmi Narain and Radhika Devi had been solemnized in the year 1954, i.e., before the commencement of Hindu Marriage Act and as such the marriage cannot be said to be in antagonism of the provisions of Section 11 read with Section 5 of the Hindu Marriage Act. The second aspect, which remains to be scanned, is whether marriage having been performed during the life-time of first wife could deprive the children born of the union of Radhika Devi and Lakshmi Narain of the estate of deceased. No doubt, Section 5(1) of Hindu Marriage Act, makes no bones to proclaim conditions for a marriage. The case propounded on behalf of the contesting respondents is that the first marriage was not subsisting when the deceased solemnized marriage with Radhika Devi and further that the deceased, as alleged, had deserted Smt. Sukh Dei and remarried Smt. Radhika. There is not too much on the record to shed light on this aspect and therefore, even if it be assumed that the second marriage had taken place during the life time of first wife which according to the learned counsel for the petitioners was void, it would not be fraught with the consequence of disinheriting the contesting respondents who were born of the union of Lakshmi Narain and Radhika Devi and were the legitimate sons of Lakshmi Narain on the dint of provisions contained in Section 16(1) of the Hindu Marriage Act, and they would be deemed to have succeeded as heirs of the deceased under Section 171 of the U. P. Z. A. and L. R. Act in 1991. By means of the U.P. Act No. 29 of 1998, the widows were held entitled along with sons to inherit the property of deceased husband with effect from 19.9.1997. By this reckoning, petitioners who are married daughters and staked claim on the basis of heirship being daughters of Sukh Dei would not derive any right in the estate of the deceased and the estate would devolve on the contesting respondents by reason of being legitimate sons of Lakshmi Narain.
7. In the last leg of this judgment, the learned counsel took me through various decisions in an endeavour to convince me. The first decision cited across the bar is a decision of the Apex Court in Surjit Kaur v. Garja Singh and Ors., AIR 1994 SC 135. I have carefully gone through this decision and I am afraid that this decisions cannot be imported for application to the facts of the present case inasmuch as it was pleaded in that case that marriage was solemnized in accordance with law with customary ceremonies but the custom was not pleaded. The second case relied upon by the learned counsel is again a decision of the Apex Court in AIR 1965 SC 1564. In this case, it was specifically held that merely living of a man and woman as husband and wife does not give status to them as husband and wife. Similarly, another decision relied by the learned counsel is a decision of Delhi High Court in Mrs. Sudershan Karir and Ors. v. State and Ors., AIR 1988 Del 368. This decision too is distinguishable inasmuch as it was a case of marriage in temple. In that case mere fact that in an authorisation letter for obtaining her pay applicant had described deceased as her husband.
8. No other argument of any substance was advanced to press home his point by the learned counsel for the petitioners.
9. In the above conspectus, I have no hesitation to hold that the concurrent findings recorded by the consolidation authorities do not suffer from any infirmity on law and facts and conclusions have been reached in accordance with law.
10. As a result of foregoing discussion the petition fails and is dismissed in limine.