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) 1 and as such the nomination paper of the appellant is liable to be rejected under Section 36(2)(b) of R.P. The husband of the appellant Late Khaliko Pul was the sitting member of the Legislative Assembly from 45- 2 Hyuliang (ST) Assembly 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 3 appellant and urged the Returning Officer to reject her nomination.
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. 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. 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 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. 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. 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. 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 10 of the application for issuance of legal heir certificate made by Smt.
(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. 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. 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. 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. 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.
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. 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. 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 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. 19 19. (PAMIDIGHANTAM SRI NARASIMHA) New Delhi, October 19, 2023 20
