DASANGLU PULversusLUPALUM KRI

                 [2023] 14 S.C.R. 1021 : 2023 INSC 930



                            CASE DETAILS
                           DASANGLU PUL
                                     v.
                            LUPALUM KRI
                     (Civil Appeal No.3710 of 2023)
                          OCTOBER 19, 2023
                  [A. S. BOPANNA AND
           PAMIDIGHANTAM SRI NARASIMHA, JJ.]
                             HEADNOTES
      Issues for consideration: Whether the indication made by the
appellant-returned candidate in Form-26, as ‘not applicable’ in the column
relating to ‘spouse’, in the facts of the present case would amount to
non-disclosure of the properties owned by her spouse; and whether that
would amount to a defect of substantial character requiring rejection of the
nomination papers of a successful candidate after the election as having
materially affected the result.
      Representation of the People Act, 1951 – s.100(1)(d)(iv) – Appellant-
returned candidate and her late husband who was the sitting member of
the Legislative Assembly from 45-Hyuliang (ST) Assembly Constituency
belonged to the Mishmi tribe in Arunachal Pradesh and as permitted
under the custom of the said tribe, he had married the appellant as
his third wife – High Court declared the election of the appellant from
the said Constituency as void u/s.100(1)(d)(iv) holding that the details
of the property owned by her late husband were not indicated in the
relevant column of Form-26 and when the legal heir certificate issued in
favour of the first wife of appellant’s late husband had been set aside as
on the date when the nomination paper was filed by the appellant, 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 – Propriety of:
     Held: The case as set up by the appellant was that as per the custom
followed by the Mishmi tribe it is only the first wife who succeeded to the

                                   1021
1022         SUPREME COURT REPORTS                          [2023] 14 S.C.R.


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 – 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 – Further, much
has been made about the challenge raised by the appellant to the legal heir
certificate dtd.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 that 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 – In the facts and
circumstances of the case, the disclosure of the 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 the appellant had not claimed any interest in the
properties which are the subject matter and belonged to the deceased spouse
– It is not a case of improperly accepted nomination and it certainly has not
materially affected the result of the election as contemplated in s.100(1)(d)(i)
(iv) – Contention of the respondent that it would amount to non-disclosure
and therefore a defect of substantial character not accepted – Impugned
order set aside – Election Petition dismissed – Conduct of Election Rules,
1961. [Paras 9, 13, 14, 17 and 18]
     Election – Election Petition – Scope of interference – Plea of the
respondent that there is no uniformity in the opinion expressed by the
witness with regard to the custom followed by the Mishmi tribe:
      Held: 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 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. [Para 9]
              DASANGLU PUL v. LUPALUM KRI                             1023



       LIST OF CITATIONS AND OTHER REFERENCES
    Kisan Shankar Kathore vs. Arun Dattatray Sawant & Ors. (2014) 14
SCC 162 : 2014 [7]SCR 258 – distinguished.
     Mairembam Prithviraj @ Prithviraj Singh vs. Pukhrem Sharatchandra
Singh (2017) 2 SCC 487 : 2016 (9)SCR 687 – held inapplicable.
      Union of India vs. Association for Democratic Reforms (2002) 5 SCC
294 : 2002 [3] SCR 696 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3710 of 2023.
    From the Judgment and Order dated 25.04.2023 of the High Court of
Gauhati at Itanagar in EP No.3 of 2019.
     Appearances:
      Jaideep Gupta, Sr. Adv., Ms. Tatini Basu, Boboy Potsangbam, Gamso
Billai, Biluso Tulang, Kumar Shashank, Ms. Nitipriya Kar, Advs. for the
Appellant.
    Santosh Paul, Sr. Adv., Arvind Gupta, Anil Kumar Sahu, Mohit
Bidhuri, Mrs. Suman Sharma, Sagnik Bose, Vedansh Mishra, Advs. for the
Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              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 Representation of the People Act, 1951 (‘R.P.Act’
for short) 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
1024         SUPREME COURT REPORTS                          [2023] 14 S.C.R.


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-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 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
               DASANGLU PUL v. LUPALUM KRI                               1025
                    [A. S. BOPANNA, J.]

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.
      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 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.
1026           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      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 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:-
            “(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.
               DASANGLU PUL v. LUPALUM KRI                               1027
                    [A. S. BOPANNA, J.]

      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 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 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
1028          SUPREME COURT REPORTS                            [2023] 14 S.C.R.


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 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 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 appellant had challenged
the legal heir certificate on 04.10.2017, which was set aside by the learned
               DASANGLU PUL v. LUPALUM KRI                                 1029
                    [A. S. BOPANNA, J.]

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 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, 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
1030          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


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 :-
       “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 property from Smt. Dangwimsai
               DASANGLU PUL v. LUPALUM KRI                                1031
                    [A. S. BOPANNA, J.]

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 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 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
1032           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


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.
       19. Pending application, any, shall also stand disposed of.


Headnotes prepared by:                                            Appeal allowed.
Divya Pandey