Sanjay Kumar Dwivedi, J.

1. Heard Mr. Jai Prakash, learned senior counsel appearing for the appellants and Mr. Manjul Prasad, learned senior counsel for the respondents.

2. The present appeal has been filed by the appellants, being aggrieved and dissatisfied with the judgment dated 21.06.2014, passed by the learned Senior Civil Judge-1, Palamau at Daltonganj, in Succession Case No. 14 of 2008, whereby the prayer of the appellants for issuing succession certificate for receiving 50% of the total service benefits of her deceased husband, fixation of monthly pension in their favour and appointment in service on compensatory ground in place of deceased Nirmal Toppo has been dismissed.

3. The succession case was instituted by the appellants stating therein that Nirmal Toppo was IIIrd Grade employee of Civil Courts Palamau and he was member of Scheduled Tribes by Caste Oraon, though by faith Cristian. He was firstly married with Respondent No. 1 Teressa Khalkho, but she used to lead vagrant life and habitual to run away from her in-laws place. She had been seen to be involved in adultery at local label. As a result of which their relationship became tense. From the effect of unethical and unusual activities of the Respondent No. 1, the entire family members sustained mental shock and agony. She has abrogated the Tribal belt for leading their life style, recognized customs and social norm as a result in the month of December, 1996 the deceased Nirmal Toppo had divorced her as per customary law amongst the Uraon Tribes in presence of family members, in-laws and the villagers. Amongst the Tribal customary law, dissolution of marriage in terms of customary divorce would be effect and permissible Thereafter she started leaving separately at different place from her husband, deceased Nirmal Toppo at Village Khajuri, Police Station-Bhandariya, District-Garhwa along with her two minor sons namely Atul Kumar Toppo, now aged about 21 years and Amit Kumar Toppo, now aged about 19 years and one daughter namely Alka Rani Toppo. now aged about 15 years. After the divorce of deceased Nirmal Toppo from his first wife namely Teressa Khalkho Respondent No. 1, in the month of December, 1996, the Appellant No. 1 namely Sushma Toppo got married in the year, 1997 with the deceased Nirmal Toppo. Her marriage solemnized in the year, 1997 with deceased Nirmal Toppo within knowledge of all concerned and with the consent of the parents of the deceased as per Uraon customs. However, their ancestors have converted into Christianity, but the parties of the case are still guided by their Tribal Customs as codified in the CN. T. Act, 1908, which will prevail over the law of land.

Further case of the appellants is that the first wife of the deceased who is the Respondent No. 1 namely Teressa Khalkho was allowed to obtain the amount of Rs. 3,000/-per month from deceased Nirmal Toppo vide Misc. Order No. 9 and 10 of 2002, dated 31.01.2002 of the then District Judge, Palamau for her maintenance after deducting from the salary of deceased Nirmal Toppo by which it is proved that the relationship of the Respondent No. 1 with the said Nirmal Toppo as spouse has been completely seized. She never participated at the event on needs or in the family ceremonies celebrated at her in-laws house of elsewhere held on several occasions. Even the last rites of deceased Nirmal Toppo was performed by the appellant with the co-operation of her in-laws at village-Khajuri, P.S. Bhandariya, District-Garhwa. On account of death of the said Nirmal Toppo, the appellant No. 1 at the very outset being widow of the deceased applied to the District Judge, Palamau in order to make information on 11.10.2007 and thereby she demanded the ad-interim amount to meet the costs in last rites which was allowed. Subsequently she further applied on 20.11.2007, 02.01.2008 and 19.01.2008, respectively before the then District and Sessions Judge, Palamau at Daltonganj for making payment of retiral/posthumous benefits of the deceased Nirmal Toppo who was the Class-IIIrd employee in this Judgeship. Due to death of her husband she also filed an application on 31.05.2008 for appointment on compassionate ground, but the same was dismissed by the District & Sessions Judge, Palamau vide Order No. 13 of 2008 dated 04.04.2008 and Order No. 33 of 2008 dated 07.06.2008 without affording adequate opportunity to explain reasons to the appellant no.1. In course of village Panchayat organized on 16.11.2007 at village-Khajuri, P.S. Bhandariya by the family members and the well wishers asked both the parties in order to resolve the dispute in between the parties, it has been settled unanimously that the service benefits of the deceased may be divided equally to both the widows and the decisions of panchayat was communicated to the District and Sessions Judge, Palamau with an application dated 20.11.2007, but no order be passed on that basis. The appellant no.1 being aggrieved by the order passed on dated 04.04.2008 vide order No. 13 of 2008 of the District and Sessions Judge, Palamau moved before the Hon'ble High Court of Jharkhand, Ranchi in W. P. (S). No. 2856 of 2008 be registered and enlisted, which has been disposed of after hearing vide order dated 14.08.2008 and it is observed by the Hon'ble Court that the dispute involves question of fact as to whether the appellant is governed by the customary law, which was prevalent in their community prior to their conversion to Christianity. On the issue related to marriage, succession etc. or by the law applicable under the Indian Divorce Act, this question involves evidences to be adduced and cannot be decided in writ jurisdiction. Thereby, the appellants has been directed to obtain an appropriate order in rest of her right in the context of the fact pleaded from the competent Court of law and till the final decision of the competent Court, the District and Sessions Judge, Palamau shall release 50 percent of the payable retiral benefits of the deceased to the Respondent No. 1 and remaining 50 percent shall be kept as reserved depending upon the decision of the competent Court for obtaining the succession certificate under the due provisions of law. The appellant No. 1 preferred this application for self and also for her minor son and daughters as their natural guardian with leave of the Court.

It is further stated that there is no legal impediment to grant succession certificate in favour of the appellants because no any WILL executed by the deceased for estate left by him and no any application has been made to any Court for Letters of Administration.

4. The case of the respondents is that appellant has no legal right to file this case against the Respondents. The heir ship of deceased Nirmal Toppo cannot be decided in summery proceeding under the Provisions of Indian Succession Act, 1925. Hence, the succession case to grant succession certificate is fit to be dismissed. Respondents denied the allegations of the appellant against the Respondent No. 1 that she was used to lead to vagrant life and habitually ran away from her in-laws house and had been seen to be involved in adultery. It is totally false and incorrect and stated with mala fide intention. The marriage of Respondent No. 1 with Nirmal Toppo had not been resolved by any legal process or by any decree of divorce. It is also denied that deceased Nirmal Toppo and his wife, respondent no.1 Teressa Khalkho was governed by the Customary Law prevailing amongst the Oraon Tribes. It is admitted by the respondents that respondent no.1 was allowed for maintenance amount of Rs. 3,000/-per month from the deceased Nirmal Toppo by order passed in Misc. Case. No 10 of 2002, but further stated that the Nirmal Toppo was not properly maintaining her, her sons and daughter, therefore, she was allowed for maintenance of Rs. 3,000/-per month against her husband. It is also denied that any Panchayati was organized on 16.11.2007 at Village-Khajuri and there was any decision given by the Panchayati to divide equally the pension and retiral benefit of deceased Nirmal Toppo between the appellant no.1 and respondent no. l.

It is further pleaded by the Respondents that it is admitted by the appellant in the petition that appellant no.1 namely Sushma Toppo married with deceased Nirmal Toppo in his life time, but in fact there was no any divorce was made between Nirmal Toppo and his first wife namely Teressa Khalkho, Respondent No. 1. thus, it is clear that appellant no.1 Sushma Toppo claiming their marriage with deceased Nirmal Toppo in the life time of his first wife, respondent No 1, Teressa Khalkho. In these circumstances, Appellant No. 1 Sushma Toppo is not legally wedded wife of deceased Nirmal Toppo, therefore neither she nor her sons and daughter are entitled to get any share as successor or legal heir of deceased Nirmal Toppo. It is further stated that the alleged marriage certificate granted under Special Marriage Act as claimed by the appellant is false, fabricated and obtained by fraud and misrepresentation. It is also denied that appellant no.1, Sushma Toppo married in the month of May, 1997 with Nirmal Toppo as per Tribal Customs and Dipak Toppo has taken birth from their wed-lock. It is also denied that Respondent No. 1 was socially divorced and deserted wife as per Oraon customs. The Respondents are not entitled to get any retiral benefits of the deceased Nirmal Toppo from his service. Atul Kumar Toppo, son of deceased Nirmal Toppo has been appointed as Class-IV employee after the death of his father, Nirmal Toppo and Respondent No. 1, Teressa Khalkho has received 50 percent of total retiral benefit by the order of Hon'ble High Court passed in W. P. (S). No. 2856 of 2008 and she is also entitled for the remaining 50 percent benefits which accrued due to death of her husband and Respondent Nos. 2 to 4 have no objection, if it received by the respondent No. 1 only, therefore, succession certificate be issued in favour of respondent No. 1 Teressa Khalkho.

5. On the basis of the above pleadings, the learned court has framed three issues to decide the succession case.

6. Mr. Jai Prakash, learned senior counsel appearing for the appellants submits that the learned court has come to the conclusion in para-23 of the judgment, relying on a judgment of the Hon'ble Supreme Court that no any other law is applicable amongst the Tribals regarding their succession and they are governed by their own customs. He submits that such finding was there, the learned court erred in entering into the merit of the case and to buttress his argument, he relied in the case of Jagraj Singh Versus Birpal Kaur, reported in (2007) 2 SCC 564, [LQ/SC/2007/169] wherein the Hon'ble Supreme Court in para-27 held as follows:-

"27. There is another aspect also which is relevant and material. As already observed by us earlier, the petition for divorce was filed by the wife in the Court of District Judge, Faridkot. The petition was contested by the husband raising several contentions including the contention as to jurisdiction of Faridkot Court to entertain, deal with and decide the matter. Though the Court upheld the contention and ruled that it had no jurisdiction, it went into merits of the matter. No effort whatsoever had been made by the Court as required by sub-section (2) of Section 23 of the Act and the Court held that the record did not show that the husband either treated the wife with cruelty or deserted her and accordingly the petition was dismissed on merits observing that the wife was not entitled to a decree for divorce. It is settled law that once the Court holds that it has no jurisdiction in the matter, it should not consider the merits of the matter. In the present case, though the issue as to jurisdiction of the Court was decided against the wife, without following the procedure under Section 23(2) of the Act, the Court dismissed the petition on merits which could not have been done."

7. Relying on this judgment, Mr. Jai Prakash, learned senior counsel appearing for the appellants submits that once the jurisdiction was found to be not there, the learned court has erred in deciding the case on merits. He further submits that Exhibit-9 is the certificate, issued by the Marriage Officer, under the Special Marriage Act, 1954, which clearly suggests that appellant No. 1 Sushma Toppo was second wife of deceased Nirmal Toppo, which has been discarded by the learned court only on the ground that in absence of any divorce, the said marriage has taken place, which is not on correct appreciation of that fact. He further submits that the certificate, issued by a competent authority and in absence of further order in light of Section 24 of the said Act with regard to void marriage, such finding is erroneous. He further elaborates his arguments by way of submitting that there is no law so far as Tribals are concerned to the effect that they cannot marry in lifetime of first wife with another lady and to substantiate his argument, he took the court to the relevant provisions of Section 5 as well as Section 11 of the Hindu Marriage and submits that so far Hindus are concerned, they are forbidden under the said Act not to marry with second another lady during the lifetime or in absence of any divorce with the first wife, however, so far as Tribals are concerned, there are no laws to that effect. By way of example, he also submits that under the Muslim Laws, a person can marry in the lifetime of first wife up to four. On these grounds, he submits that once the learned court has come to the conclusion that the Tribals are governed by their customary law, it was incumbent upon the learned court to call upon the parties to lead evidence on that ground and in absence of framing any issue, the finding has been given, which is perverse in nature. On the point of second marriage, with regard to Tribals are concerned, he relied in the case of Dr. Surajmani Stella Kujur Versus Durga Charan Hansdah & Anr., reported in (2001) 3 SCC 13, [LQ/SC/2001/414] wherein the Hon'ble Supreme Court in para-15 thereof has held as follows:-

"15. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution as notified by the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990 passed in terms of Article 342 and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant."

8. In light of the above judgment, he submits that the argument advanced by him with regard to second marriage is fortified in view of the judgment of Hon'ble Apex Court in the case of Dr. Surajmani Stella Kujur (Supra).

9. Learned senior counsel appearing for the appellants further submits that the learned court has further erred in holding that the child born out of the wedlock of Sushma Toppo and deceased Nirmal Toppo was illegitimate child, which is against the mandate of law and this finding will adversely affect the future of that child, who has born, pursuant to wedlock of Sushma Toppo, the second wife with the deceased Nirmal Toppo. To buttress his argument, he relied in the case of Revanasiddappa & Anr. Versus Mallikarjun & Ors., reported in (2011) 11 SCC 1, [LQ/SC/2011/476] wherein the Hon'ble Apex Court in paras-36, 37, 38, 39 and 40 held as follows:-

"36. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.

37. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.

38. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

39. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above.

40. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the Statute and the principles voiced under Part IV of the Constitution, namely, the Directive Principles of State Policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today State would include the higher judiciary in this country.

10. Learned senior counsel appearing for the appellants further submits that the Hon'ble Supreme Court has recently considered Section 16 of Hindu Marriage Act, in the case of Union of India Versus V.R. Tripathi, reported in (2019) 14 SCC 646, [LQ/SC/2018/1595] wherein the Hon'ble Supreme Court in para-20 held as follows:-

"20. The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M Muthuraj v Deputy General of Police, Tamil Nadu7 adopting the same position. In the view which we have taken, we have arrived at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v M Karumbayee.8 A Special leave petition filed against the judgment of the Division Bench was dismissed by this Court on 18 September 2017."

11. In view of the above, learned senior counsel appearing for the appellants submits that the learned court on misconception of law has dismissed the succession case, filed by the appellants. He submits that moreover the findings recorded therein will adversely affect the right of child and caste stigma, who has born out of the wedlock of Sushma Toppo and late Nirmal Toppo. On these grounds, learned senior counsel submits that the judgment passed by the learned court is required to be interfered by this court.

12. Per contra, Mr. Manjul Prasad, learned senior counsel appearing for the respondents at the outset submits that after disposal of the succession case, the appellants herein have instituted a Title Suit No. 40 of 2015, which is pending before the learned Civil Judge (Sr. Div)-I, Palamau at Daltonganj praying therein that the marriage was solemnized in between the plaintiff no. 1 with the deceased Nirmal Toppo through Tribal customs is valid and further also be declared that the plaintiff No. 2 is the legitimate son of deceased Nirmal Toppo. He submits that the dispute is such of nature, the appellants have rightly filed the suit, which can be decided. He further submits that three issues have been framed by the learned court and considering the said issues, the case has been rightly decided by the learned court. He further submits that the Customary Law governs from area to area. He relied in the case of Madhu Kishwar & Ors. Versus State of Bihar and Ors., reported in AIR 1996 SC 1864 [LQ/SC/1996/826] . According to him, the finding in succession case is not binding upon the Civil Court and no interference is required by the learned appellate court.

13. In view of above submissions of the parties, the court has gone through the judgment of the learned court as well as the Lower Court Records. It is an admitted fact that the deceased Nirmal Toppo married with Teressa Khalkho, subsequently he has married with Sushma Toppo and in that view of the matter, Sushma Toppo is the second wife of the deceased Nirmal Toppo and it can be safely said that in view of Exhibit-9, the certificate, issued by the competent authority under the Special Marriage Act, there is no adverse finding with regard to the marriage under that Act in light of Section 24 of the said Act. Thus, only on the ground of divorce, that document cannot be discarded. Moreover, it is an admitted fact that the parties are Tribal and nothing has been led nor the learned court has called upon the parties to address the court on the point of Customary Law and this aspect of the matter has been considered by the Hon'ble Supreme Court with regard to the Tribals and the policy with the second wife in the case of Dr. Surajmani Stella Kujur (Supra), wherein it has been held that with regard to Scheduled Caste and Schedule Tribe, unless the evidence and proof of the alleged custom making the second marriage, void was not proved and considering this aspect of the matter, the case was dismissed, as such, the court finds that the argument of learned senior counsel appearing for the appellants is having force. So far as second marriage is concerned, the learned court has given the specific finding in para-23 of the judgment and in light of the observation of Hon'ble Supreme Court, no any other law is applicable amongst the Tribals regarding their succession and they are governed by their own customs. If such a finding was there, the court was not required to proceed further to decide the case on merits, as has been held by the Hon'ble Supreme Court in the case of Jagraj Singh (Supra). It is well settled that if the jurisdiction was arising, the court was required to call upon the parties to satisfy the jurisdiction of the court at first, which has not been done in the case in hand, however, holding about jurisdiction, the learned court has proceeded to decide the case on merits, which is against the mandate of law.

14. The finding of the learned court with regard to the son namely Deepak Toppo is erroneous in view of Section 16 of the Hindu Marriage Act as well as Section 18 of the Special Marriage Act and this aspect of the matter has been consistently considered by the Hon'ble Supreme Court as well as the High Court and on this point, two judgments, relied by learned senior counsel appearing for the appellants in the cases of Dr. Surajmani Stella Kujur (Supra) and V.R. Tripathi (Supra) are helping the appellants.

15. In view of the above reasons and analysis, this appeal succeeds. The judgment dated 21.06.2014, passed by the learned Senior Civil Judge-1, Palamau at Daltonganj, in Succession Case No. 14 of 2008, is hereby, set aside. Considering the controversial nature of dispute in the case and further the suit has already been instituted on behalf of the appellants for declaration of second marriage valid and Deepak Toppo is the legitimate child of Sushma Toppo and deceased Nirmal Toppo that will be decided in that suit and right of the appellants shall govern in accordance with law subject to judgment decreed in the pending suit.

16. This appeal is disposed of accordingly. Pending I.A., if any, stands disposed of.

17. Let the Lower Court Records be sent back to the concerned court forthwith.