Smt. Mira Devi v. Smt. Aman Kumari

Case Summary

Full Case Details

Shrivastava, J.

1. The suit out of whichthisfirst appealarises was filed by the respondent Smt. Aman Kumari
   for possession of home farm lands lying in several villages and for possession of movables. The
   respondent has also filed an appeal (First Appeal No. 120 of 1958) against the judgment in that
   case. Thisjudgmentgovernsthedisposalof boththeappeals.
2. In the erstwhile State of Korea which mergedwithin Madhya Pradesh in 1948, there was a
   zamindari called ‘Patna Zamindari’. It was held by one Jagdish Prasad Singh till his death in 1942.
   The respondent Smt. Aman Kumari is the widow of the said Jagdish Prasad Singh. He bad also left
   behind a son Gopal Saran Singh who died in 1948. The appellant Smt. Mira Devi claims to be his
   widow, having married him on 4-7-1941 under the Special Marriage Act, 1872 (III of 1872)–
   hereinafter referred to as the Act of,1872. Appellants Vijay Prasad Singh and Lalit Prasad, Singh
   are sons of Smt. Mira Devi from the deceased Gopal Saran Singh. After the deathof Jagdish Prasad
   Singh, the Zamindari was resumed by the Korea Darbar in 1945, but the home-farm lands in
   several villages were allowed to be retained by the heirs of the zemindar. The present dispute relates
   to these home farmland sand the agricultural houses and other property in those villages.
3. The plaintiffs case was that she and Gopal. Saran Singh, jointlyinherited the propertyleft by
   Jagdish Prasad Singh and after the death of Gopal Saran Singh, she became the sole owner of the
   property. She pleadsthat the home farm lands were cultivated by her till 1949 when after the death
   of Gopal Saran Singh the defendants came to Patna and ousted her From her house taking
   possession of all the properties. The plaintiff stated that her husband was a Raj Gond governed by
   Hindu Law in the matter of succession. She denied that defendant No. 1 Smt. Mira Devi ever
   married Gopal Saran Singh or that the marriage was valid in law. Accordingly, she claims that the
   defendantshaveno right in the propertyleftby Gopal Saran Singh. The validityof the marriagewas
   attacked on the ground that Gopal Saran Singh was below 18 years of age on the date when the
   allegedmarriageis saidto havetakenplaceandbecausesucha marriageis not recognized.
4. The defendants pleaded that Jagdish Prasad Singh and Gopal Saran Singh were not Raj
   Gonds but were Gonds of aboriginal origin. They were not hence governed by Hindu Law but by
   custom in the matter of succession. Defendant No. 1 claimedthat she was legallymarriedto Gopal
   Saran Singh who was over 21 years on the date of marriage and the other two defendants are his
   sons. The defendants asserted that after the death of Jagdish Prasad Singh, the whole estate passed
   to his son Gopal Saran Singhand after Gopal Saran Singh to the defendants. Theyadmittedthat the
   lands were managedby the plaintiff till 1949; but it was explainedthat this was on behalfof Gopal
   Saran Singh. After Gopal Saran Singh’s death, the defendants took possession of the lands as
   desired by the Plaintiff herself who voluntarily surrendered possession of all land to them.
   Thereafter, the defendants continuedin possession of the lands and a patta for the lands in suit was
   grantedbythe MadhyaPradeshGovernmentintheirfavour.
5. The trial Court held that the zemindar was a Raj Gond governed by the Hindu Law of
   succession. The defendants’ case that Smt. Mira Devi had married Gopal Saran Singh under the
   provisions of the Special Marriage Act was accepted and it was held that the marriage was valid.
   The marriage effected a severance of Gopal Saran Singh from the family and he thus got a third
   sharein the property. The other two-thirdcontinuedwith Jagdish Prasad Singhand his wife
   (plaintiff) and passed to the plaintiffafter the deathof Jagdish Prasad Singh. The Courtthus decreed
   the claim for two-third share allowing the defendants one-third share. Both the parties have filed
   appeals against the decision claiming that the whole share should be given to them.
6. Duringthe course of arguments before us, the defendantsdid not contest that the partiesare
   RajGondsandaregovernedbythe Hindu Lawin mattersof succession.
7. Before we considerthe question of the shares of the parties in the properties, it is necessary
   to decidewhether Smt. Mira Devi married Gopal Saran Singh as alleged and whether the marriage
   is valid. So far as the performance of the marriage ceremony is concerned, we have on record the
   marriage certificate (Ex. D-10) issued by the Marriage Registrar under the Special Marriage Act,
8. The statementsof Smt. Mira Deviand the attestingwitnesses L.S. Sherlekar and S.N. Trivedi
   alongwiththecertificateprovethesolemnizationof themarriagebeyonddoubt.
9. The respondent Smt. Aman Kumari objects to the validity of the marriage on the ground
   that Gopal Saran Singh was below 21 years of age and as the consent of his father to the marriage
   was not obtained, it was contrary the condition No. 3 in Section 2 of the Special Marriage Act,
10. We have, therefore, to decidewhether Gopal Saran Singh was under 21 yearsof age on 4-7-
    1941, the date on which the marriagewas celebrated. (After discussingthe evidence in Paras 9-13,
    the judgmentproceeded;)
11. Fromthe material on, record, we find it amplyproved that Gopal Saran Singh was born in
12. He was thus more than 21 years old when his marriage under the Special Marriage Act was
    celebrated on 4-7-1941. Consent of the father to the marriage was not, therefore, necessary. The
    marriage cannot be attacked as invalid on this ground.
    The second ground on which the marriage is challenged is that Gopal Saran Singh was not
    a Hindu but a Gond belonging to the aboriginal tribe and Smt. Mira Deviwas a Hindu and therefore
    the marriage could not be solemnized under Section 2 of the Special Marriage Act, 1872, as
    amended in 1923. That section permits a marriage between two persons both of whom do not
    profess any of the seven faiths specified therein or between two persons both of whom profess any
    of the four specified, faiths. It was contended that a marriage between a person professing one of
    those faiths and a person not professinganyof those faiths is not permissibleunderthat sectionand
    is therefore absolutely void. This contention is supported by the decision in Ratan Behari v.
    MaruarethaHey,AIR 1959 Cal544 .
13. In the instant case, Smt. Mira Devi was undisputedlya Hindu Brahmin. As regards Gopal
    Saran Singh, the recitals in the plaint show that he was a Raj Gond Hindu. To this, the replyof the
    defendantswas that they were Gonds of the Adivasi tribe followingtribal customs and not rules of
    the Mitakshara School. The pleadingsof the parties are thus the exact opposite of what they should
    havesaid to supporttheir caseon this point. However,the findingis that the parties belongedto Raj
    Gondclass,whohadaccordingto theplaintiffadoptedHindu Lawof succession,
14. The position of Raj Gonds has been considered by this High Court in Chattar Singh v.
    RoshanSingh,ILR(1946) Nag159:(AIR1946 Nag277).TheCourtobserved:
    ”The distinction between a Hindu and a person who is subject to Hindu Law is at times apt to
    be blurred but the distinction is there. The Gonds have, as is well-known, adopted in the course of
    time whether for reasons of propinquity or snobbery several Hindu usages and customs, but) this
    does not makethem Hinduseitherin the ethnologicalor completetheologicalsense.”
    The Courtthen concludedthat Gonds are not Hindus and proceededto considerthe contention
    that Raj Gonds which are a branch of the Gonds had become Hindus. On a review of the
    authorities, their Lordships repelled, the contention holding that Raj Gonds were not Hindus. In
    Dashrath Prasad v. Lalloo Singh, 1951 Nag LJ 616: (AIR 1951 Nag 343), Bose, J, (as he then
    
    was) laid down that “Raj Gonds are not Hindus but the presumption is that they are governed by
    Hindu Law unless contrary is shown”. It is clear from these decisionsthat although Raj Gonds have
    adoptedthe Hindu Law for some purposes, theyhave not therebybecome Hindus. The adoptionof
    a particularlaw is differentfromchangingfaith.
15. Strictlyspeaking, therefore, the marriagebetween Gopal Saran Singh and Smt. Mira Devi
    could not be celebrated under Section 2 of the Special Marriage Act. That bringsus to the question
    whether a marriagecontraryto the conditions specified in Section2 is void ab initio, or whether it is
    validuntilset asideby CourtunderSection17 of theActof 1872.
16. This question was considered by a Special Bench of three Judges of this Court in
    Ganeshprasad v. Damayanti, ILR (1946) Nag 1: (AIR 1946 Nag 60) (SB) and it was held that
    Section2 docs not laydown the conditions of the validity, of the marriage but merelyprescribes the
    forms which have to be filledin by the parties. It was held that Section17 onlygave a discretionary
    power to Court to declare the marriage “null or dissolved”. It was finally concluded that such a
    marriagewas not voidab initio.
17. The view taken by the other High Courts is contrary. In Basanta Sen v. Aghore Nath
    Sen, AIR 1929 Cal 631 (SB) jt was held that want of consent of the guardian when it was
    necessary under Section 2 rendered the marriage absolutely void. In Arvindam v. M.
    Vendernian, AIR 1939 Hyd 205 the provisions contained in Section 2 were consideredmandatory
    and a marriage contraryto those provisions was held absolutelyvoid. Their Lordships followed the
    Calcutta view in Basanta Son’s case, AIR 1929 Cal 631 (SB) (supra), in preference to the view of
    the Nagpur High Court. A similar view has been taken in Jayalakshmi v. Soundararajan, AIR
    1949 Mad 808 and ParbatiMukerjeev. SamrendraNath,AIR 1951 Punj88 (SB).
18. We consider ourselves bound by the view of the Special Bench of three Judges of this
    Court in Ganesh prasad’s case, ILR (1946) Nag 1: (AIR 1946 Nag 60) (SB) (supra). We do not
    agree that that view requires reconsideration. The word “may” used in Section17 clearly gives
    discretion to the Court to declare the marriage null or to dissolve it. A matrimonial court may not
    consider it fit to exercise its discretionagainst grantingsuch a declaration in suitablecases. We may
    add that Section 17 of the Act of 1872 did not containany general declarationabout such marriage
    beingvoid as is now foundin the corresponding Section 24 of the Actof 1954 whichopen withthe
    words: “Anymarriagesolemnized under this Act shall be null and void and may be so declaredby
    a decree…….etc.” It is clear from this language that the marriage is void independent of any
    declarationby Court at all. This was not the position under the Act of 1872 where the powerof the
    Courthadto be invokedto producesuchan effect.
19. At anyrate, so far as the conditionregarding”faiths”of the parties is concerned, the matter
    does not involve difficulty in view of the following observations in Ganesh prasad’s case, ILR
    (1946)Nag 1:(AIR1946 Nag60)(SB)(supra):
    “We are agreedthat the Act does not require formaladmittanceto anyof the faiths specified in
    Section 2, nor does it require that any of them should be outwardly embraced. All it lays down is
    that the declarant should make a formal profession of one or other of those faiths before the
    Marriage Registrar. In our opinion, any person can profess the faiths mentioned whether or not he
    or shehasactuallybeenadmittedto anyof them, and evenif he or she is not recognisedbyothersas
    belongingto oneor otherofthem.”
    The Calcutta High Court whichtook a different view of the implicationsof Section 2 on other
    conditionsobserved in Dr. Niranjan Das v. Mrs. Ena Mohan, AIR 1943 Cal 146 that all that the
    Act requires is a declarationof the faith at the time of the marriage. Thus, it appearsthat it would be
    sufficientif the partyprofesses Hindufaith at the timeof marriage,and this the deceased Gopal
    Saran Singh, in the instant case, declared at the time of marriage (vide Ex. D-10). We bold that the
    attackon the validityof the marriageon this ground mustfail.
20. The last ground against the validity of the marriage urged by Shri Dharmadhikari for the
    respondent is that the Special Marriage Act was never in force in Korea State and therefore the
    marriagewas invalid as amongst Raj Gonds of that State, a marriageoutside the communityof Raj
    Gonds is not permitted. We may in this connection refer to Conflict of Laws by R.H. Graveson
    (1955, Third Edition), page 131 where after reviewing the case law, the learned author formulates
    the modernruleasfollows:
    “Theessentialsof a marriageare governedby the lawof the domicileof eachpartyat the time
    of marriage while the formalities are governed exclusively by the law of the place of celebration
    applicable to the particular type of marriage celebrated.”
    “Essential requirements of marriage” in this passagerefers to the provisionsof law prohibiting
    marriageon various grounds. In paragraph 21 of the judgment, the trial Court has observedthan the
    evidenceadduced by the plaintiffis insufficient to prove a custom that Gonds or Raj Gonds cannot
    marry outside their tribe. The witnesses for the plaintiff do not positively depose to such a
    prohibition. All that they say is that Raj Gonds generally marry within their caste or tribe. That is
    true about every caste or tribe. Something more is needed to prove apositive prohibition, e.g., the
    person who contracted such a marriage was treated by the tribe as having ceased to belong to the
    tribe etc. We agree that the evidencedoes not establish anypositive prohibition. Thus, there was no
    contraventionof any essential requirementsof marriagein the law or custom governingthe parties.
    So far as the form of the marriage is concerned, it was valid according to the place of celebration
    which took place in Wardha where the Special Marriage Act was in force. The marriage was thus
    valid as the form was accordingto the lex loci celebrationis and there was no prohibition in the lex
    domicilii againstthemarriage.
21. The contention that the marriage must be treated as invalid for the purpose of the
    successionof lands in Korea State is without any substance. It is true that succession to immovable
    property is governedby the law of the placewhere the property is situate. This only means that the
    personswho havea right in the propertyand their shares willbe determinedby such law. However,
    the question whether the claimant is a wife or a husband of the deceased would be determined by
    the law relating to the status of marriage. The personal status of a man accompanies him
    everywhere as also the status of domestic relations on the principle of universality of status
    recognizedinallcountries.As Gravesonobservesin The Conflictof Lawson page 114:
    “This principle of universal recognition has led English Courts, for example, Jo accept the
    statusof a child legitimatedunderthe law of a foreigndomicile, for manyyearsbefore the principle
    of legitimationbysubsequent marriageof the child’s parents was introduced into Englishlaw by the
    Legitimacy Act, 1926; to recognise the status of husband and wife between parties who could
    dissolve their marriageby consent andregistration “
    In this connection, distinctionbetweenstatus and incidentsof status should not be lost sight of.
    The relationship between spouses is a question of status. It is only the latter which would be
    governed by the law of the situs of the immovable property; but in administering such law, the
    relationship would have to be taken as valid accordingto the law of the placeof the celebration of
    marriage.
22. In view of the discussion above, we hold that the marriage between Gopal Saran Singh
    and Smt. Mira Devi(defendant No. 1) was valid and the other two defendantsborn of this marriage
    arelegitimatesonsof GopalSaranSingh.Weshallnowconsiderthequestionof inheritance.
23. Sections22 and23 of the SpecialMarriageAct, 1872, wereas follows:
    
    “22. The marriage under” this Act of any member of an undivided family who professes, the
    Hindu, Budhist Sikh or Jaina religion shall be deemed to effect his severance from such family.
    A person professing the Hindu, Budhist, Sikh or Jaina religion who marries under this Act
    shallhave the same rights and be subject to the samedisabilities in regardto anyright of succession
    to anypropertyas a personto whomtheCaste DisabilitiesRemovalAct, 1850applies.”
24. The effect of these sections is that such a person, on performanceof the marriage, ceasesto
    be a member of the joint family. His share in the family properties becomes defined at once and
    vests in him separately. He cannot later claim any right of survivorship in the family properties.
    However, it follows from Section 23 that he is not debarred from asserting his rights as an heir to
    anyone to whom he could inherit but for the marriageunder the Act. The savingof his rights under
    Section23ispersonalto himanddoes not extendto hischildren.
25. That being the position, it is clear that Gopal Saran Singh became separated from the
    familyin 1941 as soon as the marriageunderthe Special Marriage Act was celebrated. At that time,
    the familyconsisted of Jagdish Prasad Singh, his wife (plaintiff) and his son Gopal Saran Singh. It
    is settled law that whena partition, takes placebetweena father and his son the mother is entitled to
    a shareequal to that of the son. “Partition’ here does not mean partition “by metes and bounds” but
    denotesthe severanceof the jointnessof the family. All that is necessaryto constitutea partitionof a
    Hindu family is a definite and unequivocal indication of his intention by a member of the joint
    family to separate himself from the family and separately enjoy his share in the joint family
    property.
    It such a declaration is made, the shares of the individualmembers becomedefined and vest in
    them separately. In the instant case, the declaration is not made by the individual member; but
    performance of the marriage leads to the severance of the family by a statutory provision.
    Essentially, the situation does not differ from the case of the declaration of an intention by a
    coparcener to separate. The coparcener who marries under the Special Marriage Act knows that
    severancewillfollowon suchmarriage.
    By his act of contracting the marriage, he can be deemed to have made the necessary
    declarationto separate. We holdthat there was a partitionbetween Gopal Saran Singh and his father
    when the former married and therefore the plaintiff was entitled to one-third share of the family
    propertiesas herseparateshare;JagdishPrasad Singhand GopalSaranSingheach got a thirdshare.
26. When Jagdish Prasad Singh died in 1942, inheritance opened, to the one-third share held
    by him. It has been conceded before us by both the parties that the Hindu Women’s Right to
    PropertyAct, 1937, was not in force in Korea State at the materialtime. The inheritancewould thus
    be governed by the provisions of Hindu Law as they stood without that Act A separated son
    excludes the widow from inheritance under Hindu Law and therefore Gopal Saran Singh would
    inheritto JagdishPrasadSingh’sshareinpreferenceto theplaintiff.
27. The learned Judge of the trial Court decided the case on the assumption that the Hindu
    Women’sRightto PropertyAct, 1937, Appliedto KoreaState; but as we havealreadysaid, this was
    not the position. The mere fact that administrationin Korea was carriedon on the sameprinciplesas
    prevailing in the neighbouring districts of British India is not enough to make every statute of
    British India applicable to Korea. The learned Judge relied on the decisions in Girdharilal v.
    Fatehchand, (S) AIR 1956 MP 145 and Manorama Bai v. Ramabai, AIR 1957 Mad 289; but
    these decisions consider the special effect of the Act of 1937 and are not helpful. as Gopal Saran
    Singh’s right of inheritance was preserved by Section 23 of the Special Marriage Act, 1872, he
    inheritedtheshareof JagdishPrasadSingh.
    
28. After the death of Gopal Saran Singh, his estate would devolve on the defendants
    according to the provisions of the Indian Succession Act as provided in Section 24 of the Special
    Marriage Act. Under the Indian Succession Act, the widow and lineal descendantsof the deceased
    exclude the mother and therefore the property left by Gopal Saran Singh would pass to the
    defendantsinpreferenceto theplaintiff.
29. That disposes of the main contentions of the parties. We may here briefly refer to one or
    two points which were raised in arguments. On behalf of the plaintiff, Shri Dharmadhikari argued
    that the jagir was resumed by the Korea Darbar in 1945 (vide Ex. D-12) and the home farm lands
    continuedin the plaintiff’s possession by sufferance. The defendants have no rights in them. On the
    same hypothesis, the defendants contend that after the resumption of the jagir, neither party had a
    rightto the landswhich vestedin the Government and as Government granteda pattaof the landsto
    the defendants, they should be considered to be fully entitled to the lands. We do not agree that
    either of these contentions is correct. The home farm lands appertainedto the jagir and were family
    properties. If the Korea Darbarresumedthe jagir but left the landswiththe family, the partieswould
    continueto havethe same rights in them as they had in the jagir. They thus held the lands jointly–
    theplaintiffhavingone-thirdshareandthe defendantshavingtheremainingtwo-third.
30. In view of the findings above, the appeal filed by the plaintiff (First Appeal No. 120 of
    (1958) is dismissedand the appealfiled by the defendants(First Appeal No. 39 of 1958) is partly
    allowed. The decree of the trial Court is modifiedby substituting”one-third share” for the words
    “two-third share” wherever they occur in the decree. As regards costs, considering that both the
    partieshad claimed a whole share in the suit and appealand the success is divided, we direct that
    the defendantsshall pay one-third of the costs of the lower Court to the plaintiffand the costs of
    theappealsshallbe borneas incurred.