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GAHC010117572016

2025:GAU-AS:9113

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

Intest. Cas.No. 7/2016

Smti Jonali Paul,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

…..Appellant

Versus-

1. Smti Mamoni Paul and 5 Ors.,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

2. Smti Anima Rani Paul,

W/o-Late Hari Charan Paul.

3. Smti Swatabdi Paul,

D/o-Late Himangshu Shekhar Paul.

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GAHC010117572016

2025:GAU-AS:9113

IN THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH )

Intest. Cas.No. 7/2016

Smti Jonali Paul,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

…..Appellant

Versus-

1. Smti Mamoni Paul and 5 Ors.,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

2. Smti Anima Rani Paul,

W/o-Late Hari Charan Paul.

3. Smti Swatabdi Paul,

D/o-Late Himangshu Shekhar Paul.

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4. Smti Chayanika Paul,

D/o-Late Himangshu Shekhar Paul.

5. Smti Swastika Paul,

D/o-Late Himangshu Shekhar Paul.

6. Smti Archana Paul,

D/o-Late Hari Charan Paul.

All R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

.....Respondents

For Appellant 1. Mr. B.D. Deka, Advocate.

For Respondent(s) 1. Mr. R.K. Jain, Advocate.

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Intest. Cas. No. 2/2017

Smti Jonali Paul,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

….. Appellant

Versus-

1. Smti Mamoni Paul and 5 Ors.,

W/o-Late Himangshu Shekhar Paul,

R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

2. Smti Anima Rani Paul,

W/o-Late Hari Charan Paul.

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3. Smti Swatabdi Paul,

D/o-Late Himangshu Shekhar Paul.

4. Smti Chayanika Paul,

D/o-Late Himangshu Shekhar Paul.

5. Smti Swastika Paul,

D/o-Late Himangshu Shekhar Paul.

6. Smti Archana Paul,

D/o-Late Hari Charan Paul.

All R/o-Ward No. 14, Bilasipara Town,

P.S.& P.O. Bilasipara,

District- Dhubri, Assam.

.....Respondents

For Appellant : Mr. P. Deka, Advocate.

For Respondent(s) : Mr.R.K. Jain, Advocate.

Date of Judgment : 15.07.2025

BEFORE

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT & ORDER (CA V)

1. Heard Mr. P. Deka, the learned counsel for the appellant. Also

heard Mr. R. K. Jain, the learned counsel for the respondents. By

this common judgment, it is proposed to dispose of two appeals,

namely Intest. Case No. 07 of 2016, as well as Intest. Case No.02 of

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2017, as both appeals arise out of a common judgment dated

12.08.2014 passed by the learned District Judge, Dhubri, by which

two succession cases, namely Misc(S/C) Case No. 10/2011, as well

as Misc(S/C) Case No.21/2011, were disposed of.

2. The facts relevant for consideration of both the appeals

(Intest. Case No. 07 of 2016, as well as Intest. Case No. 02/2017),

in brief, are that the respondent No. 1 in both the appeals, namely,

Smt. Mamoni Paul, had filed a Misc(S/C) Case, u/s 372 of the Indian

Succession Act, 1925, which was registered as Misc(S/C) Case

No.10/2011, praying for grant of Succession Certificate in respect of

debts and securities of her deceased husband, late Himangshu

Shekhar Paul.

3. It is the case of the respondent No. 1, namely, Smt. Mamoni

Paul, that she was married to late Himangshu Shekhar Paul on

24.02.1999, as per Hindu custom and rituals. Out of their wedlock,

two daughters, namely, Ms. Swatabdi Paul and Ms. Chayanika Paul

were born. Late Himangshu Shekhar Paul was a Sub-Inspector of

Police, working in the District of Barpeta, at the time of his death.

He committed suicide on 01.01.2011. At the time of his death, late

Himangshu Shekhar Paul left behind his mother, an unmarried

sister, three daughters and two wives.

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4. After filing of the application seeking Succession Certificate by

Smt. Mamoni Paul, the second wife of late Himangshu Shekhar Paul

namely Smt. Jonali Paul also filed an application under Section 372

of the Indian Succession Act, 1925 in respect of the debts and

securities of late Himangshu Shekhar Paul. It was claimed by Smt.

Jonali Paul (present appellant) that she was married to late

Himangshu Shekhar Paul, as per Hindu rituals, on 11.02.2005, and

out of the said wedlock, one daughter, namely, Ms. Swastika Paul

was also born.

5. Since both the Misc. Cases, i.e. Misc(S/C) Case No.10/2011

and Misc.(S/C) Case No.21/2011 were in respect of the debts and

securities of late Himangshu Shekhar Paul, the learned District

Judge, Dhubri heard both the cases together and disposed of both

the cases by the common judgment dated 12

th

August 2014, which

has been impugned in both the abovementioned appeals. During

hearing of both the Misc(S/C) cases, the petitioner of Misc(S/C)

Case No.10/2011, namely Smt. Mamoni Paul, adduced her evidence

as PW-1. She has also adduced the evidence of 3(three) more

witnesses, namely, Smt. Anima Rani Paul, Smt. Archana Paul and

Sri Jayant Kumar Dey.

6. On the other hand, the petitioner of Misc(S/C) Case No.

21/2011, namely Smt. Jonali Paul, who is the appellant of both the

above-mentioned appeals herein, had adduced her own evidence as

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PW-1. She also adduced evidence of 4(four) more witnesses,

namely Sri Surjya Kanta Roy, Sri Swapan Roy, Sri Prafulla Pathak

and Sri Nirmal Roy. The Court of the learned District Judge,Dhubri,

after considering the pleadings of the parties, framed the following

points for determination in the above-mentioned Misc. (S/C) cases-

i. Whether Smt. Anima Rani Paul or Smt. Jonali Paul is

entitled to get the succession certificate as prayed

for?

ii. Whether the daughters of aforesaid persons,

including mother and unmarried sister, are entitled

to succeed the shares of debts and securities of the

deceased?

7. It is pertinent to mention herein that in her application for

grant of Succession Certificate in respect of debts and securities

of her deceased husband, late Himangshu Shekhar Paul, the

petitioner of Misc(S/C) Case No.10/2011, namely Smt. Mamoni

Paul, pleaded that her marriage was solemnized with the

deceased on 24.02.1999 as per Hindu customs and rituals. She,

however, has also stated in her petition that the deceased left

behind her mother Smt. Anima Rani Paul, the petitioner herself,

his daughter Ms. Swatabdi Paul, another daughter Ms.

Chayanika Paul, unmarried sister Smt. Archana Paul, and

another wife Smt. Jonali Paul.

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8. Ultimately, by the judgment which has been impugned in

these appeals, the Court of the learned District Judge Dhubri,

granted Succession Certificate in Misc(S/C) Case No.10/2011, to

Smt. Mamoni Paul with certain conditions and the prayer for grant

of Succession Certificate to the appellant Smt. Jonali Paul, in

Misc(S/C) Case No. 21/2011, was rejected. While granting

Succession Certificate to Smt. Mamoni Paul, the Court of the learned

District Judge, Dhubri also directed that she has to give the

respective shares to the other heirs of the deceased, namely Smt.

Anima Rani Paul (mother of the deceased), Archana Paul (sister of

the deceased), Swatabdi Paul and Chayanika Paul (daughters of the

deceased from first marriage) and Swastika Paul (daughter of the

deceased from the second marriage).

9. The learned counsel for the appellant has submitted that the

Court of learned District Judge, Dhubri had erred in granting the

Succession Certificate to Smt. Mamoni Paul and rejecting the prayer

for grant of Succession Certificate to Smt. Jonali Paul. It is

submitted by the learned counsel for the appellant that in her

application for grant of Succession Certificate, the respondent No.

1(Smt. Mamoni Paul) had mentioned the name of the present

appellant as one of the legal heirs of the deceased late Himangshu

Shekhar Paul, therefore, she is estopped from denying the fact that

the appellant is a legal heir of late Himangshu Shekhar Paul.

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10. The learned counsel for the appellant has submitted that the

marriage of the appellant with late Himangshu Shekhar Paul has

been duly proved by Exhibit-6 and Exhibit-B, whereas, the

respondent No. 1 has failed to prove her marriage with the

deceased, hence, it is submitted that the Court of learned District

Judge, Dhubri had erred in rejecting the prayer for grant of

Succession Certificate to the appellant. The learned counsel for the

appellant has also submitted that the Court of the learned District

Judge, Dhubri had exceeded in its jurisdiction by entering into the

question of the validity of marriage of the appellant with the

deceased late Himangshu Shekhar Paul.

11. The learned counsel for the appellant has submitted that the

Note-1 to Rule 143 of the Assam Services (Pension)Rules, 1969

provides that where there are more widows, pension will be payable

to the eldest surviving widow. On her death, it will be payable to the

next surviving widow, if any. The term “eldest” would mean the

term with reference to the date of marriage. Hence, he submits that

the appellant cannot be deprived of the family pension when the

Pension Rules entitles her to the same.

12. On the other hand, the learned counsel for the respondents

has submitted that the Court of the learned District Judge, Dhubri

was right in granting the Succession Certificate to Smt. Mamoni Paul

and rejecting the prayer of grant of Succession Certificate to Smt.

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Jonali Paul as it rightly observed that as the marriage of the

respondent No. 1 with deceased Himangshu Shekhar Paul was prior

in time and therefore, the marriage of the appellant with deceased

Himangshu Shekhar Paul cannot be regarded as a valid marriage.

13. The learned counsel for the respondents has submitted that

the evidence adduced by the respondent No. 1 in both the Misc.

(S/C) Cases before the learned District Judge, Dhubri shows that

her marriage was performed with Late Himangshu Shekhar Paul on

24.02.1999 as per Hindu customs and rituals. He submits that even

the evidence of mother of the deceased Himangshu Shekhar Paul

shows that the Smt. Mamoni Paul was legally married to her son on

24.02.1999, therefore, the marriage of the appellant on 11.02.2005

is not a valid marriage as rightly held by the Trial Court. In support

of his submissions, the learned counsel for the respondents has

cited following rulings: -

i. “Dolly Rani-Vs-Manish Kumar Chanchal” reported in

“[2024] 5 S.C.R.510;”

ii. “Khiteswar Phukan-Vs-Sowala Gogoi @ Phukan”

reported in “AIR 1991 Gauhati 61;”

iii. “Priya Bala Ghosh –Vs- Suresh Chandra Ghosh”

reported in “1971 (1) SCC864.”

14. I have considered the submissions made by learned counsel

for both sides and have gone through the records which were

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requisitioned in connection with this case. I have also gone through

the rulings cited by the learned counsel for both sides.

15. On perusal of the evidence adduced by both sides before the

learned District Judge, Dhubri, it appears that the marriage of the

respondent No.1, Smt. Mamoni Paul with late Himangshu Shekhar

Paul was held on 24.02.1999 as per Hindu customs and rituals and

the evidence to that effect could not be contradicted by the other

side during the cross-examination of the witnesses.

16. Though, the appellant has also been able to prove that she

was married to late Himangshu Shekhar Paul on 11.02.2005 as per

Hindu Rites and Customs, however, it appears that at the time of

her marriage with late Himangshu Shekhar Paul, the marriage of

respondent No.1 Smt. Mamoni Paul with late Himangshu Shekhar

Paul was still subsisting. The Section 5 of the Hindu Marriage Act,

1955 lays down the essential conditions for a valid Hindu marriage.

Section 5(i) provides that the marriage may be solemnized between

two Hindus, if neither party has a spouse living at the time of the

marriage. It appears that this condition was violated in case of

marriage of the appellant withlate Himangshu Shekhar Paul,

therefore, as per Section 11 of the Hindu Marriage Act, 1955 her

marriage with late Himangshu Shekhar Paul was a void marriage.

17. As regards the provision contained in the Note-1 to Rule 143

of the Assam Services (Pension)Rules, 1969 is concerned, there is

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no dispute regarding the fact that the appellant and late Himangshu

Shekhar Paul were Hindus and were governed by the provisions of

Hindu Marriage Act, 1955. The Pension Rules cannot override the

statutory provisions contained in the Hindu Marriage Act, 1955. The

marriage of the appellant with late Himangshu Shekhar Paul is a

void marriage under Section 11 of the Hindu Marriage Act, 1955.

18. It is true that in the abovementioned Misc.(S/C)Cases which

were considered by the Court of the learned District Judge, Dhubri,

the validity of marriage of the appellant with late Himangshu

Shekhar Paul was not the main question under consideration,

however, to ascertain the claim of the appellant for grant of

Succession Certificate, the Court of the learned District Judge,

Dhubri has to ascertain the right on the basis of which she was

claiming Succession Certificate under Section 372 (1)(d) of the

Indian Succession Act 1925. Unless the petitioner establishes her

right in which she was claiming Succession Certificate in respect of

debts and securities of late Himangshu Shekhar Paul, she is not

entitled to get the succession certificate.

19. This Court is of considered opinion that though, the appellant

claimed to be the wife of late Himangshu Shekhar Paul, however,

prima facie, it appears that the marriage of the appellant Smt. Jonali

Paul with late Himangshu Shekhar Paul, on 11.02.2005, was

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performed during the subsistence of the earlier marriage of the late

Himangshu Shekhar Paul with the respondent No. 1 Smt. Mamoni

Paul. Hence, the marriage of the appellant with late Himangshu

Shekhar Paul is apparently a void marriage under Section 11 of the

Hindu Marriage Act, 1958. Said marriage is void ab initio, hence,

this Court is of the considered opinion that the Court of the learned

District Judge, Dhubri has correctly rejected the prayer for grant of

Succession Certificate to Smt. Jonali Paul and has correctly granted

the same in favour of Smt. Mamoni Paul.

20. As regards grant of share to the daughter of the appellant,

namely Ms. Swastika Paul is concerned, this Court is of considered

opinion that the Court of learned District Judge, Dhubri was right in

directing the grant of share to the daughter of the appellant. In

view of the provisions contained in Section 16 of the Hindu Marriage

Act, 1958, the daughter of the appellant shall be regarded as a

legitimate daughter of late Himangshu Shekhar Paul, therefore, she

is entitled to get a share in the debts and securities of her deceased

father being a Class-I heir of the deceased.

21. This Court, therefore, does not find any error in the impugned

judgment of the learned District Judge, Dhubri, whereby, it granted

the Succession Certificate to respondent No.1 Smt. Mamoni Paul

and rejected the prayer for grant of Succession Certificate to the

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appellant Smt. Jonali Paul. The impugned judgment dated

12.08.2014 passed by the learned District Judge, Dhubri, by which

two succession cases, namely Misc(S/C) Case No. 21/2011, as well

as Misc(S/C) Case No.10/2011, were disposed of, is hereby upheld.

22. The impugned judgment, therefore,needs no interference by

this Court in exercise of its appellate powers.

23. Both these appeals are accordingly dismissed.

24. Send back the records which have been requisitioned from the

Trial Court, along with a copy of this judgment.

JUDGE

Comparing Assistant