Full Judgment Text
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)
J U D G M E N T
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
Representation of the People Act, 1951 (‘R.P.Act’ for short)
Digitally signed by
Rajni Mukhi
Date: 2023.10.19
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