(Prayer: This Civil Miscellaneous Appeal is filed under Section 299 of the Indian Succession Act, 1925 against the fair order and decreetal order of the Principal Subordinate Judge, Nagercoil, made in Probate OP No.10 of 1998, dated 30.04.2002.

This Appeal is filed under Order 41 Rule 1 of C.P.C, 1908, as amended under Act 104 of 1976, to set aside the judgment and decree, dated 30.04.2002 passed in SOP No.13 of 1999 by the Principal Subordinate Judge, Nagercoil.)

Common Judgment:

1. C.M.A.No.1535 of 2002 is filed to set aside the fair and decreetal order, dated 30.04.2022 passed in OP.No.10 of 1998 by the Principal Subordinate Judge, Nagercoil, whereas Tr.A.S.Nos.704 and 705 of 2002 are directed against the order, dated 30.04.2002 passed in SOP. Nos.13 of 1999 and 3 of 1998 separately.

2. The facts in brief:-

                  One Smile Daniel is the husband of Rajathasammal, the petitioner in S.O.P.No.3 of 1998 herein. He was working as Junior Assistant in the District and Sessions Court, Pudukottai. The marriage between the respondent and Smile Daniel was solemnized, on 12.09.1984 in St.Pauls Lutheran Church at Perumpushi in Vilavancode Taluk, Kanniyakumari District. At the time of marriage, the respondent was working as a Teacher in London Mission School at Eathamozhi and living nearby the said School. Her husband Smile Daniel was also  permanently residing with her at Eathamozhi, going from there to Pudukottai and returning on week ends and during other holidays. They have no issues. Alphonsa namely the first appellant herein is the divorced first wife of Smile Daniel, who married her on 15.09.1975. They lived as husband and wife till 11.04.1977 only. The 2nd appellant is their daughter. Their marriage was dissolved on 10.01.1983 by mutual consent and by their executing a Deed of Divorce and the same was registered with the Marthandam Sub-Registrar's Office as document No.1 of 1983. Smile Daniel died on 14.11.1996. Before his death, on 30.09.1996, he executed a Will bequeathing all his properties and other belongings in favour of the respondent herein. The said Will was executed by him in the house at Eathamozhi in the presence of two neighbours, who was also attested in the Will. The testator directed the the petitioner should pay a sum of Rs.10,000/- only to her, the second respondent, at the time of her marriage. A sum of Rs.1,65,000/- is available towards death benefit payable, to the petitioner,, who is the only heir of Smile Daniel. Therefore, the petitioner, herein made an application before the District and Sessions Judge, Pudukottai, to pay the said amount to her. After that the 1st appellant also made an application to the learned Judge claiming that she is the widow of the deceased Smile Daniel, requesting to pay the said amount to her. The learned District Judge therefore, directed both the 1st appellant and the respondent herein to obtain necessary Succession Certificate from the Competent Court in proof of their claim. So, the petitioner herein filed SOP.No.3 of 1998 before the Principal Sub Court, Nagercoil, while the respondents have filed SOP No.48 of 1998 before the Sub Court, Kuzhithurai, for the grant of a Succession Certificate. Thereafter, SOP No.48 of 1998 was transferred from the file of Sub Court, Kuzhithurai, to the Principal Sub Court, Nagercoil, and renumbered as SOP No.13 of 1999. In the meantime, the petitioner herein also filed Probate OP No.10 of 1998 on the file of the Principal Sub Court, Nagercoil, claiming to probate the Will executed by Late.Smile Daniel on 30.09.1996.

3. The appellants who are respondents in SOP.No.13 of 1999 filed a counter affidavit disputing the relationship of the petitioner as wife of the deceased Smile Daniel. They further contended that the deceased had never executed any Will and the alleged Will produced by the petitioner is a forged one and created illegally in order to take undue advantage and the attesting witnesses are created at the instance of the petitioner. Hence, prayed for dismissal of the Probate OP.

4. During the trial, on the side of the appellants herein, she was examined herself as PW1 and 6 documents were marked as Exs.A1 to A6. On the side of the petitioner Rajathasammal, respondent herein, two witnesses were examined and 39 documents marked as ExsB.1 to B39. All the three petitions heard together and decided by the Principal Sub Court, Nagercoil. The trial Court held that since the divorce deed was executed between Smile Daniel and Alphonsa, their marriage was dissolved. Accordingly, after considering the oral and documentary evidence, the trial Court, allowed SOP No.3 of 1998 and Probate OP No. 10 of 1998 and dismissed SOP No.13 of 1999, dated 30/04/2022.

5. Aggrieved over the common order passed by the trial Court, the appellants are before this Court by filing these appeals.

6. Heard the learned counsel appearing for the appellants. There is no representation for the respondent.

7. The learned counsel for the appellants in CMA.No.1535 of 2002 would submit that the learned trial Court erred in law and on  facts in accepting the case of the respondent based on Ex.B29 (the alleged Will). According to the evidence of RW2, the testator had bequeathed the land and building under Ex.B29. However, the respondent Rajathasammal, who examined herself as RW1, has categorically deposed that the building in the said property was constructed by her after the death of her husband, namely the testator. This inherent contradiction in the evidence of RW1 and RW2 itself is sufficient to disbelieve the respondent’s claim and to hold that the alleged Will was not in existence at the relevant point of time. The Court below further failed to consider that RW2, the attesting witness to Ex.B29, has clearly admitted in his evidence that he had signed the Will only before it was filing before the Court, and not at the time of its alleged execution. This admission strikes at the very root of the due execution and attestation of the Will as mandated under law.

8. The learned counsel would further submit that the trial Court overlooked the fact that, as per the evidence of RW2, he had informed the respondent about the existence of Ex.B29 only in the month of March 1998, whereas RW1, in her cross-examination, has categorically stated that she had no knowledge of the existence of  Ex.B29 and that, only on the information allegedly given by RW2, she searched for the Will in the month of January 1998. These mutually contradictory versions of RW1 and RW2 clearly established that Ex.B29 was brought into existence only for the purpose of the case and with a view to defeat the lawful rights of the appellants.

9. The learned trial Judge also failed to note that Ex.B29 is purported to have been executed on 03.09.1996, and the explanation offered by the respondent that she had no knowledge of such a document for a prolonged period is wholly artificial and improbable. Significantly, even in the probate petition filed by the respondent, no such explanation has been pleaded, which further strengthens the suspicion surrounding the genuineness of Ex.B29.

10. The learned counsel for the appellants in Tr.A.S.Nos.704 and 705 of 2022 would submit that the impugned judgment is vitiated by a fundamental failure of the Court below to properly appreciate the pleadings, issues, and evidence on record; The Court below did not adopt a correct judicial approach, failed to scan, weigh, and analyse the oral and documentary evidence in accordance with law, and dismissed the petition on presumptions rather than proven facts; The scope of the petition was misconstrued, and relevant issues were decided without proper reasoning, thereby rendering the findings perverse and unsustainable. He further submitted that the Court below gravely erred in law in treating a Christian marriage as a contract; A marriage solemnized between Christians under Section 5(1) of the Christian Marriage Act, 1872, by a Minister of Church is a sacrament and can be dissolved only by following the procedure prescribed under the Indian Divorce Act; The so-called registered divorce deed (Ex.B7) is void ab initio and contrary to statutory provisions and further, the Court below wrongly relied upon it to hold that the marriage between the 1st appellant and Late.Smile Daniel stood dissolved. Further-more, having failed to recognize the subsistence of the valid first marriage, the Court below further erred in presuming the legality of the alleged subsequent marriage with Rajathasammal. Any such marriage, during the continuance of the first valid Christian marriage, is void and hit by the prohibition of bigamy. The Court below wrongly applied presumptions drawn from principles under the Hindu Marriage Act, which are wholly inapplicable to Christian marriages, and placed undue reliance on photographs and private documents while ignoring binding statutory mandates. Therefore, the dismissal of the  petition on the ground that the appellants failed to prove the existence of marriage is manifestly erroneous and contradictory. The Court below also completely ignored the rights and claims of the 2nd appellant and denied the appellants sufficient opportunity to adduce further evidence. On these grounds, the findings of the Court below are erroneous in law and on facts and are liable to be set aside. In support of his contention, he relied upon the following judgments:-

                  (1)Dhani Ram (died) through LR and others Vs. Shiv Singh (AIR 2023 SUPREME COURT 4787);

                  (2) Kamalam (Died) and others Vs. Sasikala (2024(2)CTC 218);

                  (3) N.Govindarajan Vs. N.Leelavathy (2011(5) CTC 287);

                  (4) Gopal Krishan and others Vs. Daulat Ram and others (2025)1 MLJ 409(SC).

11. Now this Court has to decide the following points for consideration:

                  1. Whether Smt.Alphonsa is the first wife of the deceased Smile Daniel ?

                  2. Whether the marriage between the deceased Smile Daniel and Alphonsa, the petitioner in SOP No.13 of 1999 dissolved by way of mutual divorce deed, executed between  both the parties ?

                  3. Whether the marriage between Smile Daniel and Rajathasammal held on 12.09.1984, as per Ex.B9 is valid in law ?

                  4. Whether the Will executed by Smile Daniel on 30.09.1996 is valid and proved by Rajathasammal as per law ?

12. Point Nos.1 to 4

The petition in SOP.No.13 of 1999 was filed by Alphonsa and her daughter Viji claiming to be the wife and daughter of late.Smile Daniel and seeking issuance of a succession certificate in their favour, thereby enabling them to receive a sum of Rs.1,65,000/- payable from the Judicial Department, Pudukkottai against Smt.Rajathasammal. Smt.Rajathasammal, who is alleged to be the second wife of late.Smile Daniel also filed SOP.No.3 of 1998, claiming issuance of succession certificate contended that the earlier marriage between the deceased Smile Daniel and the first wife Alphonsa stood dissolved as per the divorce deed dated 10.01.1983 and that thereafter she married the deceased on 12.09.1984 on that basis, she claimed that she is the legal heir of the deceased. Therefore, it is not in dispute that the marriage between Smile Daniel and Smt.Alphonsa and the child born out of the  said marriage are admitted. However, Smt.Rajathasammal alleges that due to misunderstanding between the spouse, Smt.Alphonsa separated from her husband and consequently, Late.Smile Daniel filed O.P.No.50 of 1978 against his first wife for restitution of conjugal rights. Since the parties decided to dissolve their marriage by mutual consent, they entered into a divorce agreement on 10.01.1983 on the file of Marthandam Sub Registrar office and filed a joint memo before the District Court by stating that they had settled the matter out of Court and requesting the Court to dismiss the petition. Accordingly, the petition came to be dismissed. The respondent produced the copy of the divorce deed as Ex.B7. As per Rajathasammal, pursuant to the alleged mutual divorce agreement, Smile Daniel, married Smt.Rajathasammal on 12.09.1984, she marked Ex.B9 marriage certificate, Ex.B10, marriage invitation. She also further produced voters list for the year 1995 as Ex.B11, wherein her name is found as wife. Likewise, she also files Ex.B3 series, letter correspondence exchanged between Smile Daniel and Rajathasammal. She further produced a joint photograph along with its negative marked as Ex.B1 and bank transaction records showing that late.Smile Daniel sent money to her account. However, the 1st appellant/1st petitioner Smt.Alphonsa has not produced any materials to show that there were  any transactions between herself and Late.Smile Daniel so as to establish that Smile Daniel was living with her till his death.

13. However the crucial issue for consideration before this Court is to whether the document produced by Rajathasammal is sufficient to conclusively prove that she is the legal heir of late.Smile Daniel.

14. The parties are Christian. Part III of the Divorce Act deals with the grounds for dissolution of marriage. Section 10 thereof enumerates with grounds for the dissolution of marriage. Section 2 of the above Act provides that nothing hereinafter contained therein shall authorise any Court to grant any relief under the Act, unless the petitioner (or respondent) professes the Christian religion, nor to pass a decree of dissolution of marriage, unless the parties to the marriage reside in India at the time when the petition is presented.

15. Section 3 of this Act deal with interpretation provides that the District Judge having original civil jurisdiction within the local limits (of whose jurisdiction under this act, the marriage was solemnized  or) the husband and wife reside or resided together shall have the jurisdiction.

16. Section 10 of the above Act provides that any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground, that since the solemnization of marriage, the respondent –

                  (i) has committed adultery; or

                  (ii) has ceased to be Christian by conversion to another religion; or

                  (iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or

                  * * * * *

                  (v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

                  (vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or (vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or

                  (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

                  (ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or

                  (x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.

17. Section 10 A of this Act reads as follows:-

                  “10A. Dissolution of marriage by mutual consent.— (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001 (51 of 2001), on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.

                  (2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the mean time, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree. ].

18. While Section 14 deals confers power on the Court to pronounce decree for dissolution of marriage subject to the satisfaction of the statutory conditions prescribed under the Act as follows:

                  “14. Power to court to pronounce decree for dissolving marriage.—In case the Court is satisfied on the evidence that the case of the petitioner has been proved,

                  and does not find that the petitioner has been in any manner accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,

                  or that the petition is presented or prosecuted in collusion with either of the respondents,

                  the Court shall pronounce a decree declaring such marriage to be dissolved***:

                  Provided that the Court shall not be bound to pronounce such decree if it finds that the petitioner has, during the marriage, been guilty of adultery,

                  or if the petitioner has, in the opinion of the Court, been guilty of unreasonable delay in presenting or prosecuting such petition,

                  or of cruelty towards the other party to the marriage,

                  or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse,

                  or of such wilful neglect or misconduct of or towards the other party as has conduced to the adultery.

                  Condonation.- No adultery shall be deemed to have been condoned within the meaning of this Act unless where conjugal cohabitation has been resumed or continued.”

19. Except for the provision stated above there is no provision under the Divorce Act, for obtaining divorce. Under the Christian law in India, a deed of divorce executed and registered by mutual consent has no validity. Christian marriage in India are governed exclusively by Indian Divorce Act, 1869 and in terms of the above Act, the Christian marriage can be dissolved on a decree of divorce passed by a competent Court., viz., District Court. Such marriage, cannot be terminated by a contract or agreement between the parties.

20. Smt.Rajathasammal, went to claim that she was married to Smile Daniel as evidenced by the marriage certificate marked as Ex.B9 and stated that the marriage was solemnized on 12.09.1984, as shown in the copy of marriage invitation marked as Ex.B10.

21. However under the Indian Christian Marriage Act, 1872 Section 5 specifies the persons by whom marriage may be solemnized, while Section 60 (2) of the above Act clearly provides that neither of the persons intending to marry shall have a wife or husband living at the time of marriage. Since the marriage with Smt.Alphonsa, petitioner in SOP No.13 of 1999 was subsisting at the time of the alleged second marriage and the first marriage had not been dissolved by a decree of a competent Court, the subsequent marriage is void and not valid in law. Though Smt.Rajathasammal, produced subsequent document to show that she was living with Late.Smile Daniel, but she cannot claim the status of legally wedded wife particularly, in view of the bar contained under Section 60(2) of the Indian Christian Marriage Act, 1872.

22. The trial Court without considering the above legal provisions and factual aspects, erroneously declared that  Smt.Rajathasammal, legally wedded wife and legal heir of deceased and granted succession certificate. Such a finding is improper, unsustainable in law and liable to be set aside. Hence, the order passed is SOP.No.13 of 1999 is liable to be set aside. Accordingly, it is declared that Smt.Alphonsa and her daughter Viji are the legal heirs of the Late.Smile Daniel.

23. Smt.Rajathasammal, filed OP.No.10 of 1998 producing a Will alleged to have bee executed by Late.Smile Daniel on 30.09.1996 which was marked under Ex.B29. The recital of the Will disclose that late.Smile Daniel bequeathed all his properties, service benefits, including Provident fund, and all cash lying in the bank to Smt.Rajathasammal. Therefore, Rajathasammal filed the OP.No.10 of 1998 seeking probate of the Will. The said petition was resisted by the respondent Alphonsa and his daughter by contending that the alleged Will is a forged one and had been illegally created with an intention of usurping the property of Late.Smile Daniel. The respondent further contended that Smt.Rajathasammal during her chief examination claimed that she alone constructed the house property after the death of Smile Daniel, however, the recitals in the Will, proceed on the footing as  though the land and building were already in existence and thereby creating material contradiction. They further contended that the evidence of RW1 and RW2 is inconsistent with regard to month on which RW1 claimed to have come to know about the existence of the Will.

24. At the outset, it is pertinent to note that under the Will, the testator bequeathed 40 cents of land and building situated in Themanoor. Though RW1 in her evidence, stated that she constructed the building by utilising the funds provided by the testator and by pledging her own Jewellery, the said evidence does not in any manner established that the construction of the building was carried out only subsequent to the death of the testator. RW1 has produced the building approved plan, Ex.B24, which clearly shows that the plan was approved on 29.05.1995 during the lifetime of testator. Therefore, the bequeath made by the testator in respect of the building, cannot be construed as giving rise to any suspicious circumstances.

25. The proof of execution of Will governed by provisions of the Indian Succession Act. The capacity to make a Will and procedure to execute a Will are specifically governed by Sections 59 and 63 of the  Indian Succession Act, read with Section 68 of Indian Evidence Act, 1872.

26. As per Section 59 of Indian Succession Act, a Will may be executed by any person, who has attained the majority and he is of sound disposing mind provided such execution is free from coercion, of fraud or undue influence.

27. Section 63 of Indian Succession Act, prescribes the mode of execution of an unprivileged Will. The testator shall sign or affix his mark to the Will, or the Will shall be signed by some other person in his presence and by his direction. The Will must be attested by at least two witnesses, each witness of whom have seen the testator sign or affix his mark to the Will or must have received a personal acknowledgement from the testator.

28. Registration of Will is not compulsory, and unregistered Will is valid in law, if it is duly executed and properly attested in accordance with the statutory requirement.

29. As per Section 68 of Indian Evidence Act 1872, at least one attesting witness must be examined before the Court to prove the execution of the Will.

30. On the side of Smt.Rajathasammal, she examined one Masilamani, one of the attesting witness to the Will as RW2. RW2, deposed that the Will was executed by Thiru.Smile Daniel who signed the same in his presence, and that both himself and other attesting witness also signed in the presence of Smile Daniel. He further stated that the deceased read over the contents of the Will and explained the same to them before its execution. He further stated that the execution of Will was not known to Rajathasammal and that he only informed about the Will.

31. Though the appellants/petitioners denied the signatures found in the Will, they failed to take any steps to send the disputed signature to the forensic examination, in order to disprove genuineness or to establish that the Will was a forged document. Therefore, the Will duly executed by Late.Smile Daniel was proved by Smt.Rajathasammal. The surrounding circumstances also clearly established that the testator  Late.Smile Daniel was residing with Smt.Rajathasammal till the end of his lifetime and she only taken care of him with love and affection.

32. Therefore, mere non disclosure of Will in favour of the beneficiary is not by itself is a ground to disbelieve or doubt the Will.

33. In the present case, under the Will the testator bequeathed his service and retirement benefits in favour of his second wife Smt.Rajathasammal. In this context, this Court is to be required to consider whether a Government servant is legally competent to make a testamentary disposition of all his entire retirement benefits and service benefits or whether such benefits are required to be disbursed, in accordance with the rules and regulations governing the service conditions of the employee.

34. Insofar as family pension forming part of retirement benefit is concerned, this issue has been settled by the Hon’ble Supreme Court in Jodh Singh Vs. Union of India reported in 1980 (4) SCC 306, in which it has been categorically held that family pension does not form part of testamentary estate of the deceased employee and therefore, the employee has no right to dispose of the same by way of Will. Family pension does not form part of testamentary and therefore, an employee has no right to dispose of the same.

35. Therefore, in accordance with the Will executed by Late.Smile Daniel, Smt.Rajathasammal is entitled to the land, other immovable properties and the bank balances of the deceased. However, insofar as the service and retirement benefits are concerned, she is entitled to all such benefits except family pension, which does not form part of the testamentary estate. Any family pension, if payable shall be dispatched to the legal heirs in accordance with the law and the applicable service rules. Point Nos.1 to 4 are answered accordingly.

36. With the above observation, C.M.A.No.1535 of 2002 is partly allowed and the order, dated 30.04.2022 passed in OP No.10 of 1998 by the Principal Subordinate Judge, Nagercoil is hereby modified to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed.

37. In view of the above, Tr.A.S.No.704 of 2002 is allowed  and the order passed in SOP.No.13 of 1999 on the file of the Principal Subordinate Court, Nagercoil is set aside and the petitioners are entitled for the succession certificate. No costs.

38. In the result, Tr.A.S.No.705 of 2002 is allowed and the order passed in SOP.No.3 of 1998 on the file of the Principal Subordinate Court, Nagercoil is set aside and the SOP.No.3 of 1998 is dismissed. No costs.