Smti. Mecilda Lyngdoh v. Smti. Jacinta Jyrwa

Serial No. 01Supplementary ListHIGH COURT OF MEGHALAYA AT SHILLONGFA No. 2 of 2021 Date of Decision: 20.11.2024Smti. Mecilda LyngdohW/o (L) Francis WahlangR/o Nongkhlaw Syiemship,P.O. Mairang, West Khasi HillsDistrict, Meghalaya :::Appellant-Vs-Smti. Jacinta JyrwaW/o (L) Francis WahlangR/o Mawiong, ShillongEast Khasi Hills District, Meghalaya:::Respondent Coram:Hon’ble Mr. Justice H. S. Thangkhiew, JudgeAppearance:For the Petitioner/Appellant(s) : Mr. A.R. Passah, Adv. Mr. S. Syiem, Adv. For the Respondent(s) :Mr. K.S. Kharshiing, Adv. 1 i) Whether approved for reporting in Yes/No Law journals etc.:ii) Whether approved for publication in press:Yes/NoJUDGMENT AND ORDER1. This Appeal has been filed under Section 384 of the IndianSuccession Act, 1925, for setting aside and quashing the order dated06.08.2021, passed by the learned Judge, District Council Court, inSuccession Case No. 174 of 2012, granting a Succession Certificate infavour of the respondent No. 1, with regard to the debts and securities leftbehind by the appellant late husband namely Francis Wahlang. 2.The appellant is stated to be the legally wedded wife of (L) FrancisWahlang, who were married on 28.11.1983, under the Christian MarriageAct, but however, there were no children born out of the wedlock. On thedeath of (L) Francis Wahlang, the appellant had approached the office ofthe Bharat Sanchar Nigam Limited (BSNL), where the deceased wasworking, to claim the debts and securities left behind by her late husband, and was instructed to obtain a Succession Certificate as there were otherclaimants. The appellant then came to learn that the respondent No. 1, hadalready obtained a Succession Certificate from the learned Court below2 vide order dated 06.12.2012, with regard to the debts and securities leftbehind by her deceased husband. 3.The appellant then applied for revocation of the SuccessionCertificate issued to the respondent No. 1, whereafter the Court below byorder dated 17.05.2013, was pleased to stay the operation of the SuccessionCertificate issued to the respondent No. 1. Thereafter, the respondent No. 2,who claimed to be the sister of the deceased also filed an application forrevocation of the Succession Certificate, on the ground that the same hadbeen fraudulently obtained. The matter then proceeded for trial and issueswere framed, witnesses examined, and hearing was concluded. Thereafterby order dated 06.08.2021, the revocation petition filed by the appellantwas rejected and the Succession Certificate granted in favour of therespondent No. 1 vide order dated 06.12.2012, upheld. 4.Being aggrieved thereby the appellant has preferred the instantAppeal on and amongst others the following grounds. a)That the learned Court below failed to appreciate the fact that theappellant was the legally wedded wife of the deceased (L) FrancisWahlang. b)That the learned Court below erred in law in holding that despitethe appellant being the legally wedded wife of the deceased, shewas not entitled to the debts and securities.3 c)That the learned Court below failed to appreciate the fact that shewas still the legally wedded wife, even if the deceased may havecohabited with the respondent.d)That as the deceased and the respondent No. 1 were not legallymarried, it is not the respondent No. 1 who shall be entitled to thedebts and securities, but only the children of the respondent No. 1would be entitled to share the same. e)That the learned Court below failed to appreciate that since theappellant and the deceased are legally married, the debts andsecurities left behind by the deceased husband should be sharedequally between the appellant and the children of the respondentNo. 1. 5.When the matter was taken up for hearing, the respondent No. 2,through her counsel has submitted that she was not interested or inclined tocontest the matter, and it was prayed that her name be struck off from thearray of parties, which was allowed by this Court vide order dated30.08.2022. 6.It has been submitted by Mr. A.R. Passah, learned counsel for theappellant that the appellant had established the fact before the Lower Courtthat she was the legally wedded wife, inasmuch as, the respondent herself4 had admitted the same in her evidence. A Marriage Certificate he submitsexisted which had been tendered in her evidence and marked as Papermark2, and the marriage was corroborated by the other witnesses and by thefindings of the Court below, that the appellant is the legally wedded wife. Itis further submitted that despite the Court below, returning of finding thatthe appellant is the legally wedded wife of the deceased, the dismissal ofthe revocation application on the ground that the appellant never took careor looked after her deceased husband is perverse, moreso, as there was noissue framed on this point and in absence of such issue, the parties had notled evidence in support of their case on this issue. 7.On another issue, it is submitted by the learned counsel that thoughthe children from the second wife, even if there is no marriage contracted, would be entitled to debts and securities, the question of whether therespondent had children from the deceased is questionable, inasmuch as, allthe Birth Certificates had been obtained after the demise of (L) FrancisWahlang. The learned counsel submits that even PW2, one Smti. BityJyrwa, had deposed before the Trial Court that the eldest daughter of therespondent is not the daughter of (L) Francis Wahlang, which therefore castserious doubts on the parentage of the children, and this aspect was neverdwelt upon by the Court below and no findings were returned in thisregard. 5

#8. It has also been contended that the claim of the respondent on thebasis of cohabitation and customary practice that once a man and a womancohabit together for long period, a presumption of marriage can be drawnwill not be applicable in the instant case, as the appellant was the survivingspouse of the deceased and that even among the Khasis bigamy is apractice frowned upon. He therefore submits that the appellant is entitled tothe family pension and the respondent has no right over the same. Insupport of his arguments, the learned counsel has relied upon the followingcases:i)Rajkumari & Anr. vs. Krishna & Ors. reported in(2015) 14 SCC 511ii)Smti. Mahalakshmamma vs. The SecretaryDepartment of Rural Development & Ors. (KarnatakaHigh Court) 2023 Kar 447iii)Judgment dated 07.05.2015, of the Gauhati HighCourt passed in Intest Case No. 8 of 2006. 9.Mr. K. S. Kharshiing, learned counsel on behalf of the respondenthas at the outset submitted that the purported marriage between thedeceased and the appellant/objector Smti. Mecilda Lyngdoh, is not proved, inasmuch as, the original certificate of marriage was never produced inevidence. He further submits that the appellant had admitted that she had6 no issue from the deceased (L) Francis Wahlang, and also that she was notliving together with him nor did she take care of him during his illness tillhis demise, nor did she perform his last rites. In her cross-examination hesubmits, the appellant was not able to prove any of her assertions, even ofher marriage and about the situation and condition of the deceased. Hesubmits that the appellant did not know the date, time or place of death ofthe deceased and whether the deceased was cremated or buried. On theother hand he submits, the respondent was residing with her deceasedhusband since the year 1991, and that as per Khasi custom, a man andwoman residing together with children born out of this cohabitation areconsidered a married couple, and the children legitimate. 10.The learned counsel submits that the respondent had proved byevidence both oral and documentary that since 1991, she had cohabitedwith the deceased as husband and wife, and that the four children for whichBirth Certificates have been exhibited, were born out of this union. It isalso submitted that the respondent had performed the last rites of herdeceased husband and the cremation was supervised by her mother-in-law, and all the funeral expenses were borne by the respondent and the motherof the deceased. He therefore contends that, the appellant has miserablyfailed to prove her case and as such, is not entitled to any relief as claimed.In support of his case, the learned counsel has placed reliance on the7 decision rendered in the case of Vidhyadhari & Ors. vs. Sukhrana Bai &Ors. reported in (2008) 2 SCC 238.11.Heard the learned counsel for the parties. A perusal of the impugnedjudgment under appeal shows that both the appellant and the respondenthad tendered oral and documentary evidence along with other witnesses, and from a re-appreciation of the evidence, apart from the fact that the copyof the original Marriage Certificate was never produced, the othercontentions that has been put forward by the respondent, as can be seenfrom the findings of the learned Court below stand unrebutted. These arethe factum of cohabitation of the respondent and the deceased since theyear 1991, the fact that the respondent and the deceased had two sons andtwo daughters, for which Birth Certificates have been produced and that therespondent performed the last rites along with the mother of the deceased.12.The picture that emerges therefore, is that though the appellant is thelegally wedded wife, their marriage being solemnized on 28.11.1983, theyhowever, ceased to cohabit after a certain period of time, and it has beenestablished by evidence that the deceased then cohabited with therespondent from the year 1991 onwards, till his demise on 03.01.2012, andout of this union, four children were born. The learned Court below afterdigesting the evidence, then held that simply by the solemnization ofmarriage, when the parties had separated and were not living together as8 husband and wife, the same will not be a license for inheriting the debtsand securities left behind by the deceased. Further on the finding that therespondent had taken care of the deceased during his illness, and alsoperformed the last rites, the learned Court below allowed the SuccessionCertificate granted in favour of the respondent on 06.12.2012 to stand. 13.In this backdrop on the findings of the learned Court below, thisCourt is to examine whether on these sets of facts, the appellant could beconsidered ineligible to inherit the debts and securities left behind by thedeceased. It is now settled law that a legally wedded wife will notautomatically be entitled to a Succession Certificate to the exclusion of thesecond defacto wife and her children, who are legitimate for the purpose ofa share in the debts and securities. However, the fact that a legally weddedwife would also be entitled, notwithstanding the fact that they may, or maynot have been cohabiting as long as the same has not been annulled, cannotbe ignored. This Court therefore, in view of the fact that both of the partiesherein have a valid claim on the debts and securities of the deceased, and tobalance the equities on the said rival claims, in the facts and circumstancesas they prevail, hereby orders as follows:-1)As the appellant is the legally wedded wife of the deceased, who will have the first claim on the family pension, it isordered that the appellant shall be entitled to the family9 pension of the deceased commencing from the month ofJanuary, 2025. 2)The respondent who also holds a valid claim through thechildren shall be entitled to the terminal benefits, as has beengiven in the schedule of debts and securities of the applicationfor Succession Certificate, which includes DCRG, leaveencashment, GPF, GSLI and shall also be allowed to draw theaccumulated arrears of family pension from the date of thedemise of the deceased till December, 2024. 14.The above directions have been given notwithstanding the fact thatfamily pension and its entitlement thereto, is governed by applicable rulesand does not form a part of terminal benefits of the deceased person, forwhich Succession can be applied for. However, the family pension being apart of the employment dues payable to the legitimate heirs, as earlierobserved, this order has been passed to balance the equities.15.The impugned order, in view of the discussions made herein above, is set aside. 16.The instant Appeal resting on different facts and circumstances, fromthe cases cited by the parties, the same are not elaborated. 17.The instant Appeal accordingly stands closed and disposed of. 10

#18. Lower Court records to be transmitted back. JudgeMeghalaya20.11.2024“D.Thabah-PS” 11