1. Heard the learned counsel for the appellants as well as the learned counsel representing the contesting respondents.

2. Perused the record.

3. The appellants feel aggrieved by the order passed by the Additional District Judge, Bhind in the proceedings under Section 372 of the Indian Succession Act. whereunder rejecting their objections, the application filed by Shyamwati Asharam and Ram Prasad. the present respondents No. 1 to 3 respectively had been granted the succession certificate prayed for holding them to be the only heirs of Chhotesingh who were found entitled to get the amount of Rs. 40,000/- from the Electricity Department, District Morena which stood deposited to the credit of Chhote Singh, the deceased who had died intestate.

4. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass, Chhote Singh who was employed as a Line Man in the Electricity Department had died on 1-12-1984 in village Chandawali No. 1, District Bhind. An application under Section 372 of the Indian Succession Act was filed on 19-8-1994 by Shyamwati claiming to be the widow of Chotte Singh, the deceased and Asharam and Ram Prasad claiming to be the sons of the deceased. Chhote Singh asserting that they alone were the heirs of Chhote Singh, the deceased and praying for the grant of the succession certificate entitling them to receive an amount of Rs. 40.000/- which was lying in deposit with the Electricity Department, District Morena.

5. On 7-10-1994, an objection was filed opposing the aforesaid application by Ramkali, the present appellant No. 1 asserting that she was the legal heir of Chhote Singh, since deceased in view of her being his wife along with one son Krishan Chand born to her from Chhote Singh, the deceased. She had also asserted that her father had married her as well as her real sister Shyamwati to Chhote Singh in accordance with the social rites and custom. These marriages had been performed at the same time that is to say on the same day and both the sisters were the vives of the aforesaid Chhote Singh. Chhote Singh however resided along with her in his last days at Morena. She claimed to be entitled to one half of the amount in dispute alleging that her sister, Shyamwati was entitled to the remainng half. She, therefore, claimed that a direction be issued requiring half of the amount in dispute to be paid to her.

6. The learned Additional District Judge after considering the evidence brought on the record came to the conclusion that Ramkali had not been able to establish that she had been married with Chhote Singh and her status could not be more than that of a Rakhail (concubine).

7. On the aforesaid findings, Shyamwati and the two sons of Chhote Singh, that is, Asharam and Ram Prasad alone were found to be the legal heirs entitled to the succession certificate as prayed for. Rejecting the objection filed by the appellants the Additional District Judge allowed the application filed by Shyamwati and others as has already been indicated herelnabove.

8. It may be noticed that tn her deposition dated 25-10-1994 Ramkali had admitted that Shyamwati was her real sister. She had also admitted that Shyamwati had married with Chhote Singh and that Asharam and Ram Prasad were born out of the aforesaid wedlock. It was further admitted by her that she had been married to Asharam, a resident of village Gamrahi and out of this wedlock, a daughter had been born to her who had been married on her attaining the age of 20 years. Asharam, her husband had died about 18 years ago and she used to reside along with him during his life time. Five or Six years after the death of her husband, Asharam, she claimed that Chhote Singh had brought her to Morena as his wife and thereafter she was residing with him as his wife. On some occasions, she also resided with him in his village Chandrawali where Shyamwati used to reside along with Chhote Singh. During his lifetime, both she as well as Shyamwati used to reside with Chhote Singh as his wives. She had further admitted that Chhote Singh died in the village Chandrawali. In her cross-examination, she had admitted that in the revenue records the name of Shyamwati had been substituted in place of Chhote.

9. In support of her case, she had examined Vrishbhan Singh, aged about 42 years, a resident of village Chandrawali. He had stated that he knew Shyamwati and her sister, Ramkali who had been married with Chhote. Shyamwati was the first wife of Chhote. He had further stated that in the year 1978-79, subsequent to the death of Asharam, the parents of Ramkali had said that as the husband of Ramkali had died, both the sisters may reside together to which Chhote Singh had agreed and had taken Ramkali as his wife who resided along with Chhote till his death. In his cross-examination, however, a specific question had been put to him as to whether Ramkali had been married with Chhote Singh to which he had replied that Shyamwati had been married with Chhote Singh and after the death of Ramkali's husband, Chhote Singh had kept Ramkali as a wife on "gharelu" basis.

10. From the pleadings contained in the objection filed by Ramkali to which a reference has been made hereinabove, it is apparent that she hads set up a specific case that both the sisters i.e., she and Shyamwati had been married with Chhote on the same day. This case was however given up at the stage of oral evidence. She had admitted that she had been married with Asharam and out of this wedlock a daughter had also been born. In the presence of his first wife, Shaymwati who was married with Chhote, he stood prohibited from entering into a second marriage during the life time of his spouse. The provision contained in Section 5 of the Hindu Marriage Act, 1955, clearly prohibits a marriage being solemnized between any two Hindus, if either of them has a spouse living at the time of such marriage.

1OA. In the present case, the previous marriage was admittedly subsisting at the time of the appellant, Ramkali's alleged marriage with Chhote Singh. Such a subsequent marriage is void ab initio. In any case, it is settled that it is the case which is pleaded that has to be found. Ramkali had come up with a definite case in her pleadings that she as well as Shyamwati had been married with Chhote Singh on the same day. No evidence worth the name had been led in support of such pleading. On the other hand, during the course of evidence, Ramkali came with an entirely new case that she had been married with Asharam and after his death, she had been taken by Chhote Singh as his wife. Vrishbhan Singh, the witness produced by her had stated that it was in the year 1978-79 that on the request of her parents, Chhote Singh has taken Ramkali as his wife. Admittedly, Chhote Singh died in the month of December, 1984. In such a situation, the finding of the trial Court that Ramkali had failed to prove her marriage with Chhote Singh and that her status could not be more than that of a Rakhail (Concubine) does not warrant any interference especially when no evidence admissible under Section 50 of the Evidence Act had been led to prove the relationship of wife and husband between Ramkali and Chhote Singh of such habit and repute which could raise a presumption in respect of the marriage. Even otherwise where the alleged marriage is void ab initio or originates in concubinage, no such presumption in regard to the marriage can be available under the law.

11. It may be noticed that a presumption in favour of marriage does not arise merely on the ground of co-habitation but it must be co-habitation with 'habit' and 'repute'. Before, applying therefore, this preumption of marriage the condition of habit and repute necessary for its existence must be satisfied beyond doubt. Further, the habit and repute which alone is effective should be of that particular status of lawful marriage. A reputation about marriage can only be established by means of evidence admissible under Section 50 of the Evidence Act. A mere statement that a person is or is not married is not admissible under Section 50 of the Evidence Act. What the Court wants under Section 50 of the said Act is opinion expressed by conduct of any person who as a member of the family or otherwise has special means of knowledge of the relationship.

12. In the afforesaid connection it may also be noticed that a "female" whose marriage is void de jure, which survives the death of her husband could not be covered within the ambit of the expression "widow" either in Class I of the Schedule to the Hindu Succession Act or any other place where such reference occurs. The term 'widow' as contemplated under the Hindu Succession Act clearly means and implies "female" who was united in marriage recognised by law and who survives the husband without remarriage.

13. The learned counsel for the appellants has strenuously urged that even if the alleged marriage between Ramkali and Chhote is not established yet Krishan Chand, the appellant No. 2 who is the son of the deceased Chhote born out of his union with Ramkali could not be denied the right to get a share out of the amount in dispute to which he stands entitled on account of his being an heir of Chhote under Section 8 read with Class I of the Schedule to the Hindu Succession Act, as the expression 'son' as used in the Schedule is wide enough to include an illegitimate son especially in view of the provision contained in Section 16 of the Hindu Marriage Act, 1955, which provides that notwithstanding that a marriage is null and void under Section 11, any 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 Marralge Laws (Amendment) Act, 1976 (68 of 1976) and whether or not a decree of nullity is granted in respect of that marriage under the Hindu Marriage Act and whether or not the marriage is held to be void otherwise than on a petition under the said Act.

14. I have given my anxious consideration to the aforesaid submission.

15. Under the scheme of the Indian Succession Act, illegitimate children cannot be deemed to be included within the ambit of the expressions used in describing the heirs of Class I of the Schedule to the said Act. These expressions have to be taken to refer to a legitimate "son" and "daughter" born out of the union of a subsisting marriage. In this connection, I respectfully agree with the view expressed by the Bombay High Court in its decision in the case of Daddo Atmaram Patil v. Raghunath Atmaram Patil (Savant) reported, in AIR 1979 Bom 176. The Act does not expressly equate illegitimate children to legitimate children. In the matter of inheritance and succession under the Act, the two do not stand on par but stand apart. The Act in terms separates and distinguishes the two and excludes the illegitimates from any right to intestate succession except to the extent expressly enacted in the proviso to Section 3(1)(j) of the Act. For the purpose of succession to the property of a male Hindu dying intestate, the Act clearly intends only a legitimate relationship with the father unlike with the mother with whom a special fictional legitimacy and consequent heritability flowing therefrom is established.

16. Taking into consideration the scheme reflected by Sections 3(i)(j), 4 and 8 of the Indian Succession Act, it is not possible to include the illegitimate children within the meaning of the words "son" or "daughter" as used in the list of heirs of Class I indicated in the Schedule to the said Act.

17. However, when a de jure or a de facto marriage is rendered null and void under Section 11 or 12 of the Hindu Marriage Act, 1955 or is otherwise found to be void, the statutory fiction envisaged under Section 16 of the Hindu Marriage Act, 1955 comes into play protecting the interest of a child born out of such a marriage conferring upon him the status of a legitimate child. The condition precedent for making such a statutory presumption available however is that there must be either a de Jure or a de facto marriage. In this connection, it may further be noticed that this Court in its decision in the case of Reshamlal v. Balwant Singh, reported in 1994 Jab LJ 160 had clearly observed that the provision contained in Section 16 of the Hindu Marriage Act, 1955 has to be interpreted to mean that there must be a marriage, which would be hit by the provisions of the said Act. In that case, it had been found that there was no marriage at all and therefore, the provision of Section 16 of the said Act could not be said to be available to the appellant.

18. In the aforesaid circumstances, when there is no proof of solemnisation of marriage and there is further no proof that there was a de jure marriage or even a de facto marriage where during long cohabitation as husband and wife with habit and repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under Section 16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under Section 11 or 12 of the Hindu Marriage Act,1955.

19. In the present case, the findings returned by the Court below noticed hereinabove do not appear to be suffering from any such legal infirmity which may require any interference and are not liable to be disturbed. The condition precedent for raising a presumption of legitimacy envisaged under Section 16 of the Hindu Marriage Act, could not be said to have been satisfied as there was neither a de jure marriage nor a de facto marriage between Ramkali and Chhote. The contention of the learned counsel for the appellants is clearly deviod of merit and is not at all acceptable.

20. In view of my conclusions indicated hereinabove, I do not find any justifiable ground to interfere in the ultimate order passed by the Court below.

21. This appeal is clearly deviod of merit which deserves to be and is hereby dismissed.

22. There shall however be no order as to costs.