CHANDRAMANI DUBEY Vs. RAMA SHANKAR DUBEY

JUDGEMENT

(1.) Dr. H. S. Dubey, formerly Medical Officer of Health at Lucknow, died on 31-10-1942. He was Brahman and had married a Brahman wife from whom he had two sons, the plaintiffs, Rama Shankar and Karuna Shankar, and two daughters, Shanti Devi and Kanti Shukla. Dr. Dubey's Brahman wife died in 1927 and, it is no longer disputed, he went through the ceremony of marriage under the Indian Christian Marriage Act (XV [15] of 1872) with Mrs. Chandramani Dubey, a Christian by religion. A son, Udai Shankar and a daughter, Kamni, were born of this union.

(2.) For some time after Dr. Dubey's death there were no disputes between the parties and, in two litigations, Mrs. Chandramani Dubey and the six children were all impleaded as his legal representatives without any objection by any of them. Later, however, relations became strained and, on 25-4-1944, the two plaintiffs, denying the factum of the marriage and alleging that, in any case, it was legally void and ineffectual, instituted the suit out of which this appeal arises for a declaration that they are the sole heirs of Dr. Dubey, and as such, the sole owners of the property mentioned in Lists A and B attached to the plaint. They also alleged that the property in the two lists which stood in the name of Mrs. Dubey was in fact acquired by Dr. Dubey and Mrs. Dubey was-only a benamidar.

(3.) Mrs. Chandramani Dubey and her children under guardianship were impleaded as defendants 1 to 3. Shanti Devi and Kanti Devi were defendants 4 and 5. They never appeared and the suit proceeded ex parte against them. Mrs. Chandramani Dubey, however, contested the suit on behalf of herself and of her two minor children. Subsequently Kamni died and she is no party to this appeal. In the written statement it is pleaded : (1) That a marriage took place between defendant 1 and Dr. Dubey according to the mode prescribed by the Christian Marriage Act and that it was a valid marriage. Defendant 2 was an heir of his father, and defendant 1 had, for her life, an interest equal to that of a son, while defendant 3 was entitled to maintenance. (2) That Dr. Dubey did not enter into any benami transactions in the name of Mrs. Chandramani Dubey and that he only left the properties entered at Nos. 1 to 4 and 8 of List A as well as a portion of the property mentioned at No. 5 of the same list. (3) That the mortgagee rights alleged to be benami in the name of defendant 1 were acquired in pursuance of an antenuptial agreement for the benefit of the said defendant. (4) That the plaintiffs are not in possession of items 3 and 5 of list A or of the property entered in list B and consequently a suit for a mere declaration in respect of these properties is not maintainable. (5) That the Hindu Law does not govern the marriage of defendant 1 with Dr. Dubey since the parties to it were not Hindus, but such a marriage is governed, under Section 3 (g), Oudh Laws Act, by the principles of justice, equity and good conscience. (6) That, in any case, the marriage was good and valid even according to Hindu law. (7) That, by custom, marriages between Hindus and Christians are permissible. (8) That decree having been passed against the defendants as representatives of Dr. Dubey, without any objection by the plaintiffs, the plaintiffs are estopped from challenging the heirship of defendants 1 and 2. (9) That the jewellery and gold mentioned in list A belong to defendant 1 and the Insurance Policies mentioned in list B were assigned to her.