Dasanglu Pul vs Lupalum Kri

2023 INSC 930 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3710 OF 2023

Dasanglu Pul .… Appellant(s) Versus

Lupalum Kri …. Respondent(s)

JUDGMENT

A.S. Bopanna, J.

1. The appellant is before this Court assailing the

judgment and order dated 25.04.2023 passed by the

Gauhati High Court, Itanagar Bench in Election Petition

No.3 of 2019. Through the said judgment and order the

High Court has arrived at a conclusion that the appellant

herein who is the returned candidate had not presented her

nomination paper in accordance with Section 33 of the Signature Not Verified Digitally signed by Rajni Mukhi Date: 2023.10.19 Representation of the People Act, 1951 (‘R.P.Act’ for short) 15:49:43 IST Reason:

C.A. No.3710 of 2023 Page 1 and as such the nomination paper of the appellant is liable

to be rejected under Section 36(2)(b) of R.P. Act, 1951. In

that view, it is held that the improper acceptance of the

nomination by the Returning Officer has therefore

materially affected the result of the election. Hence the

election of the appellant from 45-Hyuliang (ST) Assembly

Constituency in the election held pursuant to the

notification dated 18.03.2019 is declared as void under

Section 100(1)(d)(iv) of the R.P. Act 1951. The appellant

therefore claiming to be aggrieved by the said judgment and

order is before this Court in this appeal.

2. We have heard Mr. Jaideep Gupta, learned senior

counsel for the appellant, Mr. Santosh Paul, learned senior

counsel for the respondent and perused the appeal papers.

3. The brief facts to be noted is that the appellant and

her late husband belong to the Mishmi tribe in Arunachal

Pradesh. The husband of the appellant Late Khaliko Pul

was the sitting member of the Legislative Assembly from 45-

C.A. No.3710 of 2023 Page 2 Hyuliang (ST) Assembly Constituency. As permitted under

the custom of the said tribe, Late Khaliko Pul married the

appellant during May, 2015 as his third wife. The said Late

Khaliko Pul died intestate on 09.08.2016. He is survived by

three wives (including the appellant) and seven sons. On the

death of the husband, the appellant, for the first time

contested from the said constituency in the bye-election that

ensued on 19.11.2016 and was successful. After the

completion of the term of the assembly for the earlier

period, when the elections were notified on 18.03.2019, the

appellant filed her nomination on 22.03.2019. She enclosed

the relevant papers which included the affidavit under Form

26 of Rule 4A of the Conduct of Election Rules, 1961 (‘Rules

1961’ for short).

4. The respondent herein was also a candidate and had

filed his nomination from the said constituency. On

26.03.2019 the respondent filed a counter affidavit

challenging the nomination of the appellant alleging that

there is substantial defect in the nomination filed by the

C.A. No.3710 of 2023 Page 3 appellant and urged the Returning Officer to reject her

nomination. The ground on which such challenge was

raised by the respondent is that the appellant who has an

interest and claim over the properties of her spouse has not

mentioned the same in her affidavit filed on 25.03.2019. In

that regard, it was the case of the respondent that the non-

disclosure of the properties belonging to her spouse

amounts to defects of substantial character and as such the

nomination was liable to be rejected. The Returning Officer,

through his order dated 26.03.2019 had however rejected

the objection raised by the respondent and had accepted the

nomination of the appellant. In that background, the

elections were held on 11.04.2019 and the results were

declared on 23.05.2019 wherein the appellant had secured

5663 votes as against the 4591 votes secured by the

respondent. The appellant was therefore declared elected by

a margin of 1072 votes as a Member of the Legislative

Assembly from the 45-Hayuliang(ST) Assembly

Constituency.

C.A. No.3710 of 2023 Page 4

5. It is in that backdrop, the respondent challenged the

election of the appellant by filing the Election Petition

No.3/2019 on 03.07.2019 before the Gauhati High Court,

Itanagar Bench on the ground that the nomination of the

appellant was improperly accepted which has materially

affected the result of the election. The appellant in response

had filed a Recrimination Case No.1(AP)/2020 on

20.01.2020 contending that the respondent held an office of

profit on the day of filing his nomination and therefore his

nomination is in fact liable to be rejected. In the election

petition, the appellant filed her written statement and

defended the acceptance of her nomination as valid.

6. Based on the pleadings raised before the High Court,

the High Court framed as many as 8 issues for its

consideration. The respondent in support of his election

petition examined himself as PW-1 and the Returning

Officer Mr. Dagbom Riba as PW-2. The appellant, on the

other hand, in her defense had examined 14 witnesses

which included her family members, the advocate who

C.A. No.3710 of 2023 Page 5 assisted her in filing the nomination as also her election

agent. On analysing the evidence available before it, the

High Court has arrived at the conclusion that the details of

the property owned by the late husband of the appellant

was not indicated in the relevant column of Form-26 which

provided for mentioning the details of the properties owned

by the spouse. In the said column the appellant had

indicated as ‘not applicable’. It is in that light, the High

Court has arrived at the conclusion that in a circumstance

when the legal heir certificate dated 04.05.2017 issued in

favour of the first wife of Late Khaliko Pul had been set

aside as on the date when the nomination paper was filed

by the appellant on 26.03.2019, the properties relating to

which the legal heir certificate had been issued being that of

the spouse ought to have been mentioned in the Form-26 of

the affidavit.

7. In the background of the contentions urged by the

learned senior counsel for the appellant to assail the

conclusion reached by the High Court and the contentions

C.A. No.3710 of 2023 Page 6 put forth by the learned senior counsel for the respondent

to sustain the same, we note that though a detail

consideration has been made by the High Court and the

contentions in that regard put forth by the learned senior

counsel on either side before us is also elaborate, the only

issue that arises for consideration is as to whether the

indication made by the appellant in Form-26, as ‘not

applicable’ in the column relating to ‘spouse’, in the facts

and circumstance emerging herein would amount to non-

disclosure of the properties owned by her spouse, as would

be understood in a normal case and whether that would

amount to a defect of substantial character requiring

rejection of the nomination papers more particularly of a

successful candidate after the election as having materially

affected the result.

8. On this aspect, the undisputed fact even without

reference to the evidence tendered by the parties is that the

husband of the appellant Late Kalikho Pul, during his life

time had owned and possessed the following properties:-

C.A. No.3710 of 2023 Page 7 “(1). Plot No.1: Area 581 Sq Yards: location Mumbai, Maharashtra.

(2). Plot No.480: Area 550 Sq Yards: location Mumbai, Maharashtra.

(3). Plot No.483-484: Area 1166 Sq Yards:

location Mumbai, Maharashtra.

4). Plot No.485-486: Area 1148 Sq Yards: location Mumbai, Maharashtra.

5). Plot/Dag No.37(A): Area 5950 Sq Mtrs;

location Khupa, (Hig) Anjaw.

6). Plot/Dag No.894: Area 2000 Sq Mtrs; location Tezu(Educated youth colony).”

But, the question is with regard to its status after his death.

9. The fact that the appellant had indicated as ‘not

applicable’, in the column in Form-26 relating to indication

of the property details belonging to the spouse will no doubt

ex-facie indicate that the above-noted properties were not

mentioned. However, the question would be; whether the

appellant had any claim to the said property either to be her

property on the death of the husband or has a claim to be

entitled to succeed. The fact that the husband died on

09.08.2016 will indicate that as on that day the right to

succession had opened and the property would not

C.A. No.3710 of 2023 Page 8 continue to be the property of the husband. In that

circumstance, technically if the appellant had succeeded to

the same, the said properties could be considered as her

own to be disclosed and the question of indicating it as that

of the spouse would not arise. The case as set up by the

appellant therefore is that as per the custom followed by the

Mishmi tribe it is only the first wife who would succeed to

the properties of the husband if the deceased at the time of

death had more than one wife and as such the appellant

had no claim whatsoever over the said properties. It is in

that light, the appellant has examined the witnesses who

have spoken with regard to the manner of inheritance

among persons belonging to Mishmi tribe. Though the

learned senior counsel for the respondent seeks to point out

that there is no uniformity in the opinion expressed by the

witness with regard to the custom followed by the Mishmi

tribe, we are of the opinion that in the scope available to

this Court in an election petition it would not be appropriate

for this Court to either examine the customary right or the

C.A. No.3710 of 2023 Page 9 right to inheritance. It would be appropriate only to notice

as to whether in the facts and circumstances of the case

where the appellant herself has no claim to the properties

after the succession has opened, the non-mentioning of the

properties as belonging to that of the spouse was a

substantial defect.

10. In that circumstance, the undisputed fact is that much

prior to the filing of the nomination on 22.03.2019 a legal

heir certificate was issued on 04.05.2017 in favour of Smt.

Dangwimsai Pul by the Court of Judicial Magistrate, First

Class Tezu, Lohit District, Arunachal Pradesh i.e., in favour

of the first wife of Late Khaliko Pul. Para-3 of that

certificate in fact recognises her right as the legal heir being

the first wife and property details are mentioned therein.

The case of the respondent is that the appellant had

challenged the issue of the legal heir certificate and the

learned Sessions Judge vide order dated 20.12.2018 had set

aside the legal heir certificate and had remitted the case to

the Court of Deputy Commissioner, Tezu for consideration

C.A. No.3710 of 2023 Page 10 of the application for issuance of legal heir certificate made

by Smt. Dangwimsai Pul i.e., the first wife of Late Khaliko

Pul. It is in that light contended that as on 22.03.2019

when the nomination papers were filed, the legal heir

certificate had been set aside and as such the appellant

being one of the wives was required to indicate the property

belonging to her spouse.

11. In order to appreciate the said contention, the High

Court has taken note of the decision of this Court in Kisan

Shankar Kathore vs. Arun Dattatray Sawant & Ors.

(2014) 14 SCC 162 wherein this Court on finding that there

was clear non-disclosure of the bungalow belonging to the

appellant's wife in the nomination papers filed by the

appellant in that case had held the same to be a substantial

lapse. Having perused the said decision we note that in the

facts of the said case the husband being the candidate had

a wife who was living and had owned certain properties

which was to be mentioned in Form No.26 and his failure to

do so had been held as a substantial lapse, by this Court. In

C.A. No.3710 of 2023 Page 11 the very decision, this Court had also taken note with

regard to the non-disclosure of the electricity dues regarding

which there was a dispute pending and had arrived at the

conclusion that the same was not a serious lapse. This

Court therefore has clarified that the consideration as to

whether it is a defect of substantial character would depend

on the facts and circumstances of each case as to whether

such a non-disclosure would amount to material lapse or

not. Though the said observation was indicated as not to be

treated as having general application, the position of law

cannot be different and it is well established that a case

cannot be considered in abstract, without having reference

to the facts and circumstances evolving in a case.

12. It is in that light to be noted that in the instant facts,

the nomination papers for the present election were filed on

22.03.2019. If the said date is taken as the relevant date,

the legal heir certificate issued to the first wife being on

04.05.2017 will have to be construed as being issued at an

undisputed point in time. It is no doubt true that the

C.A. No.3710 of 2023 Page 12 appellant had challenged the legal heir certificate on

04.10.2017, which was set aside by the learned Sessions

Judge on 20.12.2018. From the evidence placed on record it

is noted that in the petition challenging the issue of legal

heir certificate the appellant had not set up title to the

property which was owned by her late husband but had

only contended that the legal heir certificate issued by the

Judicial Magistrate, First Class was without jurisdiction.

The order passed by the learned Sessions Judge to set aside

the same and remand the proceedings to the Court of the

Deputy Commissioner through the order dated 20.12.2018

will disclose that the right of the parties to the property was

not decided in favour of the appellant, but having set aside

the certificate as being without jurisdiction, had remitted

the matter to the authority having jurisdiction to consider

the same.

13. The proceedings were thereafter pending and

ultimately a fresh legal heir certificate was issued by the

Executive Magistrate, Lohit District on 22.03.2022. The said

C.A. No.3710 of 2023 Page 13 certificate was in respect of the properties which stood in

the name of the late husband regarding which an objection

had been raised by the respondent for not being included in

Form No.26. If that be the position, as on 22.03.2019 when

the nomination was filed by the appellant herein, the issue

relating to the legal heir certificate, though set aside was at

large and the dispute was pending. In any event, the

appellant had not set up any claim to the said properties

which were not indicated in Form-26. Though the learned

senior counsel for the respondent would contend that the

‘no objection certificate’ filed by the remaining family

members which ultimately resulted in the issue of the legal

heir certificate dated 22.03.2022 in favour of the first wife

itself is contrary to law inasmuch as the minor children also

have signed the said document, the validity of the same is

not an issue for consideration herein. The fact remains that

even the other persons who have signed have indicated that

they have no objection and the legal heir certificate has

accordingly been issued in favour of the first wife. Therefore,

C.A. No.3710 of 2023 Page 14 neither as on the date of the death of the spouse nor on the

date of filing the nomination for the election at the first

instance in the year 2016 or at the point when the

nomination was filed on 22.03.2019, the property left

behind by the deceased was claimed by the appellant.

14. It is no doubt true that much has been made about

the challenge raised by the appellant to the legal heir

certificate dated 04.05.2017 issued in favour of the first wife

which had been set aside as on the date of filing the

nomination on 22.03.2019. Apart from the fact as already

indicated, the dispute was still at large before the forum to

which it was remitted, in any event, legal heir certificate by

itself cannot be construed as a document of title to the

property. It is a mode to determine the heirship based on

which the consequential actions would follow. The appellant

in her evidence has specifically disclosed the reason for

which she had challenged the legal heir certificate. The

portion of the evidence reads as hereunder :-

C.A. No.3710 of 2023 Page 15 “That my challenge to legal heir certificate dated 04.05.2017 was primarily for the purpose of pressurizing Smti Dangwimsai Pul to handover the papers of land bearing Plot No.230 situated at Tezu township. Late Kalikho Pul before his death had made it clear that this plot of land is meant for me. The papers of this plot of land were in the possession of Smti Dangwimsai Pul and after the death of Shri Kaikho Pul, she showed reluctance in handling over the papers of this plot of land to me. I needed the papers of this plot of land badly to get an allotment order in my favour. Since Smti Dangwimsai Pul had obtained the legal heir certificate in respect of other properties in her favour, I feared that she may also apply for another legal heir certificate in respect of this plot of land also. In order to force Smti Dangwimsai Pul to part with the papers of this plot of land, I challenged the legal heir certificate dated 04.05.2017 on the advice of Shri Biluso Tulang, who is my first cousin and has been helping me in managing my various social, legal and political matters. During the pendency of the criminal revision petition filed by me challenging the said legal heir certificate, the papers of the said plot of land were given to me after which I stopped taking interest in my criminal revision petition. Subsequently, the said plot of land was allotted in my favour.”

15. A perusal of the above extracted portion of the

deposition would indicate that the appellant was claiming

her right to Plot No.230 situate at Tezu township since her

late husband had made it clear that the said plot is meant

for the appellant. The challenge was therefore raised as a

pressure tactics to secure the documents of the said

C.A. No.3710 of 2023 Page 16 property from Smt. Dangwimsai Pul i.e., the first wife.

Therefore, it was her clear understanding that the

remaining properties will belong to the first wife of Late

Khaliko Pul and her entitlement was to Plot No.230

mentioned above. While weighing the entire case in the

background of the evidence tendered and arriving at a

decision based on preponderance of probability, the

explanation put forth by the appellant in the fact situation

herein will have to be accepted as plausible since the

appellant while filing her nomination in Form No.26 and

indicating the details of the properties standing in her name

has indicated Plot No.230 in Tezu township, to which she

was laying claim based on the assurance given to her by her

late husband during his lifetime and has not laid claim to

any other property which stood in the name of her deceased

husband, to which, as contended by her the first wife has

succeeded.

16. Therefore, in the facts and circumstances of the

instant case if all these aspects are taken into consideration

C.A. No.3710 of 2023 Page 17 the disclosure of the said properties in the column in Form-

26 to indicate the properties belonging to the spouse would

not arise, firstly, since the spouse was not alive and on his

death the succession had opened, even otherwise she had

not claimed any interest in the properties which are the

subject matter and belonged to the deceased spouse. Hence

it cannot be construed that there was a defect of substantial

character in the present facts and circumstances of the

case. Hence, this was not a case of improper acceptance of

the nomination filed by the appellant. As such the principle

enunciated in Mairembam Prithviraj @ Prithviraj Singh

vs. Pukhrem Sharatchandra Singh (2017) 2 SCC 487 was

not applicable herein. The High Court was therefore not

justified in applying the same to the facts arising herein.

17. As noted, we have indicated that the contention of the

respondent in the present facts that it would amount to

non-disclosure and therefore a defect of substantial

character cannot be accepted and since in that

circumstance it is not a case of improperly accepted

C.A. No.3710 of 2023 Page 18 nomination, it certainly has not materially affected the

result of the election as contemplated in Section 100(1)(d)(i)

(iv) of the RP Act, 1951. Further, even if the object with

which this Court in Union of India vs. Association for

Democratic Reforms (2002) 5 SCC 294 has required the

disclosure of assets is kept in view, the facts involved herein

would indicate that the allegation herein cannot be taken as

non-disclosure though it could have been open for the

appellant to indicate this aspect in the affidavit but in any

event, it is not a substantial defect so as to materially affect

the result of the election in the facts and circumstances

herein.

18. Therefore, for all the above-stated reasons the

judgment and order dated 25.04.2023 passed by the

Gauhati High Court, Itanagar Bench in Election Petition

No.3 of 2019 is set aside and the Election Petition No.3 of

2019 is consequently dismissed. The appeal is accordingly

allowed, however with no order as to costs.

C.A. No.3710 of 2023 Page 19

19. Pending application, any, shall also stand disposed

of.

…………...………………….…………………J. (A.S. BOPANNA)

…………...………………….…………………J. (PAMIDIGHANTAM SRI NARASIMHA)

New Delhi, October 19, 2023

C.A. No.3710 of 2023 Page 20