JUDGMENT
Chettur Sankaran Nair, J.
1. Legal lacings apart, the question is whether the appellant or first respondent in these appeals (hereinafter called Saraswathy Amma and Padmavathy Amma, in that order) was the wife of deceased Krishnankutty Nair.
2. On Krishnankutty Nair’s death, Padmavathy Amma filed OS 318/83 for a declaration that she was his wife. Likewise, Saraswathy Amma filed OS 439/83 for a like declaration. The trial Court held that both were wives of Krishnankutty Nair. The Appellate Court held that Padmavathy Amma was the wife, and that the marriage with Saraswathy Amma was not valid. Krishnankutty Nair married Padmavathy Amma in the year 1950 (date and month not stated) according to the custom of the community. Thereafter, they executed a Deed of Dissolution Ext. XI on 17-2-1976 in accordance with Section 6 of the Madras Marumak-kathayam Act. Krishnankutty Nair then married Saraswathy Amma on 15-9-1977. Ext. Bl is the certificate of marriage. Later, Krishnankutty Nair made a settlement of some of his properties in favour of Padmavathy Amma on 14-9-1979 by Ext.A2, describing her as his wife. On 25-6-1983 Krishnankutty Nair died, raising the hornet’s nest for the two women.
3. On the strength of Ext. A4 — a certificate of heirship dated 28-10-1983 issued by a Tahsildar, Ext. A2 settlement and Exts. A5 to A7 fetters Padmavathy Amma contended that she was the widow of Krishnankutty Nair, entitled to inherit his properties, including service benefits. Saraswathy Amma, mainly on the strength of Ext. Bl certificate of marriage, also contended that she was the wife of deceased Krishnankutty Nair. As noticed, the appellate Court held that the marriage between Padmavathy Amma and Krishnankutty Nair subsisted, that Ext. XI was sham, and that the marriage between Krishnankutty Nair and Saraswathy Amma was invalid, for these reasons.
4. Learned counsel for Saraswathy Amma contended that a Marumakkathayee governed by the Madras Marumakkathayam Act, 1933, was entitled to dissolve his marriage by recourse to Section 6 of that Act. That Section postulates two modes of dissolution — one with the aid of the Court, and the other by execution of a registered instrument of dissolution upon the consent of the parties (Section 6(a)). Marumakkathayam Act stood repealed by the Hindu Marriage Act, 1955, called the H.M. Act1 hereinafter. Thereafter, the Kerala Joint Hindu Family Abolition Act, 1976 was also enacted. Section 4 of the H. M. Act states that, ‘any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of that Act, will cease to have effect, unless otherwise saved by the Act’. Section 4(b) further states that ‘any law in force at the commencement of the H.M. Act shall cease to have effect in so far as it was inconsistent with any provision of the H.M. Act.’Section 13 of (he H.M. Act deals with divorce, and slates the grounds upon which a marriage could be dissolved.
5. Counsel for Saraswathy Amma submits by reason of Section 29(2) of the H.M. Act, Section 6 of the Marumakkathayam Act is saved from exposure to Section 4. On the contrary, counsel for Padmavathy Amma submits that Section 29 saves only the right ‘to’ dissolution. Section 29(2) reads:
“Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of the Hindu marriage, whether solemnized before or after the commencement of this Act.”
6. A Division Bench of this Court in Kesavan v. Krishnamma, 1985 KLT 17 held that a cause of action that arose prior to repeal would remain in force despite repeal. In Gopalakrishnan v. Sarasamma, AIR 1980 Ker 109 this Court held that the right to obtain divorce under the Nair Act would remain in force by reason of Section 29 of the H.M. Act. Shri N. Subramanian, counsel for Padmavathy Amma, who argued his case with thoroughness, relying on a decision of this Court in A. K. Krishna Pillai v. P. A. Subhadra Amma, 1970 KLT 442 : (AIR 1971 Ker 44) (FB), submitted that what is saved by Section 29(2) is the right ‘to’obtain dissolution, and not the right ‘of dissolution. He elaborated his argument and submitted that the right to seek divorce was available, but that it was limited to the grounds under Section 13, and that the grounds under the earlier enactment would not be available, as those would be inconsistent with Section 4 of the H.M. Act. If something in the earlier law, custom or usage is not inconsistent with the legislation in question, there is no need to save it. What is saved or what requires to be saved is only what is inconsistent with the Statute, which will not survive, but for the saving. Therefore, the question is whether any of the grounds under Section6(a) is saved. I think it is saved because, there is nothing else to be saved. If what is saved is only right to obtain dissolution, there is no need to save it because, Section 13 itself makes provision to obtain dissolution. Saving cannot be of something which needs no saving and saving can only be of something, which otherwise the repealing Act would destroy.
7. The view that what is saved is the right to obtain dissolution on the grounds available earlier is supported by the decision of the Punjab and Haryana High Court in Jagit Singh v. Mohinder Kaur, ILR (1969) 1 P&H 538. The Court observed :
“If under custom or under special enactment a Hindu has a right to obtain dissolution, on grounds other than those enumerated under Section 13 of the H.M. Act, he is entitled to avail of the same”.
What Section 29(2) saves could only be something otherwise destroyed by Section 4. What could it be, other than the right available under Section 6(a)?
8. There is difficulty in accepting the submission that what is saved is only the right ‘to’ dissolution, and not right ‘of dissolution, for other reasons as well. Again, it is difficult to perceive or draw any distinction between ‘of and ‘to’. These two propositions generally achieve the same meaning. Familiar legislative instances are seen in the expressions, “in pursuance of” and “pursuant to”. There is no real or appreciable distinction between the expressions “to” and “of” in the context of dissolution. However, I consider it unnecessary to express a final opinion on this question.
9. The decision in this case must turn on Ext. XI and the subsequent conduct of parties. When the Court has to form an opinion regarding relationship between persons, the opinion expressed by conduct as to existence of relationship is relevant (Section 50 of the Evidence Act). Distribution and “devolution of family properties are often valuable evidence for this purpose. The decisions in Shshammal v. Kuppanaiyyangar, AIR 1926 Mad 475 and Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 are authorities for this proposition.
10. Ext. XI and Ext. A2 require consideration. Ext. XI deed of dissolution was made on 17-2-1976. Three and half years later. Krishnankutty Nair and Padmavathy Amma were living together as husband and wife, and they considered themselves so, as is clear from the recitals in Ext. A2 Settlement Deed. Krishnankutty Nair while settling certain properties on Padmavathy Amma, recited that she was his wife, that she fulfilled her duties as a wife faithfully, and that he reposed much love in her. If Ext. A2 is to be accepted — it has to be, the only conclusion is that Ext. XI was not meant to be acted upon. Padmavathy Amma herself states that it was not meant to be acted upon, and that she agreed to the execution of it, only because she was assured by her husband that it was not intended to be used as an instrument of dissolution. She was persuaded into the belief that such an instrument was necessary to get certain benefits or educational concessions for her children. The court below believed this explanation. I am also inclined to believe the version of Padmavathy Amma on this aspect. Perhaps, the real intention of Krishnankutty Nair was not to get any such financial benefits for the children, but only to persuade Saraswathy Amma to the belief that he was a free man, and that he could marry her. That is not important. Fact remains that Ext. XI was not intended to be acted upon, and that it was not acted upon. Irrespective of the operation of Section 6 of the Marumakkathayam Act, there was no dissolution of marriage. When the first marriage subsists, the second is not valid in the eye of law. Authority is legion for this proposition and if it is needed, it is found in Mohammed Ikram Hussain v. State of U. P., AIR 1964 SC 1625 : (1964 (2) Cri LJ 590) and Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, AIR 1988 SC 644. Therefore, during the subsistence of the marriage with Padmavathy Amma, Saraswathy Amma could be considered only as a mistress and not as a wife in law.
11. It was argued by counsel for Saraswathy Amma that in the light of Ext. B1 Certificate of Marriage between Sarawathy Amma and Krishnankutty Nair, the marriage must be upheld and that without setting aside the same, Padmavathy Amma could not get a
declaration that she was the wife. The mere fact that a certificate was issued, is no authority for its authenticity. That apart, it is unnecessary to challenge it. If a document is void, a person affected by it can ignore the same and file a suit seeking substantive reliefs (see Sanjay Kaushish v. D. C. Kaushish, AIR 1992 Delhi 118 and Indramani Bedbagis v. Hema Dibya, AIR 1977 Ori 88).
12. It was then argued that nomination made by Krishnankutty Nair in her favour should entitle Saraswathy Amma to receive service benefits. This argument also cannot be accepted. Rule 71 of Kerala Service Rules (Part III) defines ‘family and it includes ‘wife’ etc. Nomination cannot take away the rights of legal heirs. As observed by the Supreme Court in Sarbati Devi v. Usha Devi, AIR 1984 SC 346 : (1984 All LJ 194) and Narayani Amma v. Saraswathy, 1991 (1) Ker LT 450, a nominee is only a trustee for legal heirs, and the right of the legal heirs, cannot be taken away by nomination.
13. It follows that the appellant Saraswathy Amma was not the wife of Krishnankutty Nair, that Ext. XI is not valid in law, and that the nomination in her favour does not confer any right which, general law does not. The Court below was justified in its conclusion.
The Appeals are without merit and are accordingly dismissed. Parties will suffer their costs.