Delhi District Court
Parwati Subba vs State on 29 February, 2024
IN THE COURT OF MS. ANURADHA JINDAL,
ADMINISTRATIVE CIVIL JUDGE-CUM-COMMERCIAL
CASES JUDGE-CUM-ADDITIONAL RENT
CONTROLLER, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
DLSW030000582022
CNR No. : DLSW03-000058-2022
Under Section : 372 of The Indian Succession Act,
1925
Parwati Subba versus State & Ors.
a) Succession Court Case No. : 5/2022
b) Name & address of the : Smt. Parwati Subba,
petitioner W/o Late Shri Puran Subba
R/o RZ34, 1st Floor, Dada
Chhatriwala Marg, Raj
Nagar-I, Palam, New Delhi
110045
Permanent Address:
Maney Gumba 2,
Sindibong, Kalimpong,
Sindibong, Khasmahal,
Darjeeling, West Bengal
734316
c) Name & address of the : 1. State
respondent
2. Pinky Subba,
W/o Late Shri Ashish
Subba,
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 1/18
Last known address: F4/2,
F-Block (F-1/1 to F-10/18)
Poorvi Marg, Vasant Vihar,
Delhi 110057
(Present whereabouts not
known as she remarried in
around the year 2011 and
left for unknown place.)
3. Aaryan
S/o Late Shri Ashish
Subba,
Last known address: F4/2,
F-Block (F-1/1 to F-10/18)
Poorvi Marg, Vasant Vihar,
Delhi 110057
(Present whereabouts not
known as he left for
unknown place with his
mother on her remarriage.)
Date of Institution of petition : 12.01.2022
Date of pronouncement of judgement : 29.02.2024
Petition under section 372 of The Indian Succession Act, 1925
for grant of succession certificate in respect of the debts &
securities of deceased, Late Shri Ashish Subba.
JUDGEMENT
1. The Case 1.1 . The present petition has been filed by the petitioner for grant of succession certificate under Section 372 of The Indian Succession Act, 1925 (hereinafter referred to as the "Act"), in respect of debts and securities of the deceased namely Shri Ashish Subba.
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 2/182. Petitioner's case:
2.1 . The case of the petitioner is that petitioner is the mother of the deceased who expired intestate on 22.03.2010. The deceased was the permanent resident of House No. C-44, Bagdola Village, Sector 8, Dwarka, New Delhi 110077 which falls within the jurisdiction of this Court. Deceased was survived by three Class I legal heirs i.e., petitioner who is stated to be the mother of deceased and respondent no. 2 and respondent no. 3 who are stated to be the wife and son of the deceased respectively.
2.2 . The petitioner has approached this Court with the instant petition seeking grant of Succession Certificate in respect of the securities of the deceased i.e. an amount of Rs.
8,51,209/- (Rupees Eight Lakhs Fifty One Thousand Two Hundred and Nine Only) lying in the Account No. 451448120 maintained with Indian Bank having branch at Shantiniketan Branch, DDA Market, Shantiniketan, New Delhi 110021.
3. Summoning of the Respondents:
3.1 . Notice of the petition was ordered to be published in newspaper and accordingly, publication was effected through newspaper titled as "Veer Arjun" dated 15.03.2022.
3.2 . Notice of petition were also served upon the respondents no. 2 and 3 who filed their written statements.Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 3/18
4. Written Statement filed on behalf of respondent no. 2 and 3
4.1 . The respondents in its written statement has raised certain preliminary objections that the petitioner has no locus standi to file the present petition; that the petitioner has concealed material facts regarding legal heir of Late Shri Ashish Subba; that the petition does not disclose any cause of action in favour of the petitioner and that the verification clause of the application is not as per High Court Rules.
4.2 . By way of written statement, it is contended that respondent no. 2 and respondent no. 3 are the wife and son respectively of the deceased Late Shri Ashish Subba and after his death, respondent no. 2 and respondent no. 3 has the right to get all the benefits of Late Shri Ashish Subba being his legal heirs. Respondent no. 2 and respondent no. 3 are the only persons who can claim all benefits as they are the only legal heirs of the deceased. The petitioner cannot claim any right and has no right for grant of Succession Certificate. Only respondent no. 2 and respondent no. 3 have right to get the Succession Certificate for all claims. The petitioner is not entitled to any relief as prayed in the petition. It is prayed that the petition of the petitioner be dismissed with heavy cost.
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 4/185. Reply on behalf of petitioner to the written statement filed by respondent no. 2 and 3 5.1 . In its replication, the petitioner has denied all the claims, averments and submissions raised in the written statement and stated that which is not expressly admitted of the written statement is denied in toto as if traversed in- seriatim. Nothing should be deemed to be admitted. The facts and events as raised in the petition be read as the contents of the present replication and the same is not repeated for the sake of brevity.
5.2 . It is stated that the averments of the written statement are misconceived, false, frivolous, devoid of merits and is an abuse of process of law. The respondents cannot be permitted to adumbrate a self serving projection in their favour on the basis of the alleged contentions so raised. Thus the averments raised in the written statement are liable to be dismissed and discarded. The respondents have put forth a moonshine defence and self serving averments which are not only in contradistinction to the facts of the present case but also have no material bearing or relevance over the adjudication of the present dispute.
5.3 . The respondent no. 2 after the death of her husband remarried to one Richard Gazmer on 07.05.2011. As per settled law, the respondent no. 2 after her remarriage is no longer a legal heir of the deceased being her previous husband and therefore ceases to have any interest in the deceased's property. It is an undisputed fact that the Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 5/18 petitioner is the mother of the deceased thereby being the Class I legal heir of the deceased's assets. The petitioner being the mother of the deceased falls under the category of Class I legal heir of the deceased's assets. The petitioner has not concealed any material facts with regard to the legal heirs of the deceased and has come with clean hands before this Hon'ble Court. The affidavit accompanying the written statement is only in respect of respondent no. 3 and not respondent no. 2 which is a serious defect as per law.
6. Issues 6.1 . Upon completion of pleadings, the following issues were identified, vide order dated 04.08.2023, by the Ld. Predecessor Court:
(i) Whether respondent no. 2 is entitled to any share in the securities of the deceased pursuant to her re-marriage? (OPR)
(ii) Relief.
7. Petitioner's Evidence:
7.1 . To prove its case, the Petitioner examined himself as a witness as PW-1 and tendered his evidence by way of affidavit Ex. PW-1/1 bearing his signatures at points A & B respectively and relied upon the following documents:
(i) Photo ID of the plaintiff/deponent is Ex. PW1/A (OSR);
(ii) Original death certificate of deceased Sh. Ashish Subba Ex. PW1/B (OSR);Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 6/18
(iii) Copy of passbook of deceased Sh. Ashish Subba is Ex. PW1/C;
(iv) Statement of account no. 451448120 of deceased Sh.
Ashish Subba is Ex. PW1/D. 7.2 . PW-1 who is stated to be the mother of the deceased during her cross examination deposed that Ashish Subba was her son. Because PW-1 was of very old age, she did not remember the exact date when Ashish Subba and Pinki Subba was got married but Pinki Subba was her daughter- in-law. PW-1 volunteered to depose that they got married in 2002. Aryan Subba is the son of Ashish Subba and Pinki Subba. Aryan Subba was born after around one and a half or two year after the date of marriage on 21 st September. She could not recall the exact year.
7.3 . PW-1 could not recall the exact time when Pinki Subba got remarried after the death of Ashish Subba. She volunteered to depose that Pinki Subba got married in one year around. She did not know that Pinki Subba and Aryan Subba was dependant on Ashish Subba. PW-1 receives pension of around Rs. 15-16,000/-. Pinki Subba was not ready to live with them although they offered every kind of help and support from their side but she refused and left on her own will. She visited the residence of Ashish Subba and Pinki Subba when Ashish was alive, after his death she did not visit. She is ready to give 50% share from the amount for higher education for Aryan. Apart from this, she is not going to pay for anything else because they changed their Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 7/18 surname. On 13th day of death of Ashish Subba, Pinki Subba came with Police and took Aryan Subba from her forcefully. Even Aryan was willing to live with his grandparents but she took him forcefully. Aryan was around 7 years at that time. After that, Pinki Subba did not let her meet Aryan again. There is no share for Pinki Subba in questioned amount. She is not the nominee.
7.4 . PW-1 came to Delhi as soon as she got informed about the death of Ashish Subba alongwith Aryan Subba. She volunteered to depose that Ashish Subba was in Delhi alongwith his brother. She did not know that Ashish Subba has one saving account with Indian Bank, Shanti Niketan Branch, New Delhi. Pinki Subba never came to her home. Pinki Subba changed the surname of Aryan Subba and even did not allow her to meet Aryan (grandchild) from 14 years. They changed the surname of Aryan after the remarriage of Pinki Subba. Originally the amount was of sister of Ashish which was stuck in his account after the death of Ashish Subba. She was the mother of Ashish Subba and she tried and cared her best for Ashish Subba. She is not in greed but she is ready to give 50% share to Aryan Subba on his name because he is her grandchild. She only received pension because he was in Army. Apart from that, he did not left anything.
7.5 . PW-1 agreed to the suggestions put by Ld. Counsel for respondent that on 22.03.2010, Ashish Subba was expired; that after the death of Ashish Subba, his wife and son is Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 8/18 there; that when Ashish Subba expired, his wife and son was with him in Delhi; that Ashish Subba visited Klimpong during his last days; that at the time of death of Ashish Subba, PW-1 was in Klimpong; that Pinki got remarried to Richard Gazmer on 07.05.2011 after the death of Ashish Subba.
7.6 . PW-1 denied to the suggestions put by Ld. Counsel for respondent that PW-1 never helped Pinki Subba financially; that she never let Pinki Subba to enter to her home; that she never gifted any gifts to Aryan; that she did not even took care of Ashish Subba; that the amount was left in the account of Ashish Subba was for maintenance and education of Aryan Subba; that she is claiming this amount on greed; that father of Ashish Subba left movable and immovable property to her after his death.
8. Respondent's Evidence:
8.1 . To rebut the case of the petitioner, respondent no. 2 examined herself as RW-1. RW-1 tendered her evidence by way of affidavit Ex. RW-1/A bearing signature at points A and point B. 8.2 . RW-1 who is stated to be the wife of the deceased when cross examined by Ld. Counsel for petitioner deposed that she knew what is written in her written statement and affidavit Ex.RW-1/A. RW-1 could not recall where they resided after the marriage. They lived approximately one and a half years after birth of her son Aryan at F-4/2, Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 9/18 Vasant Vihar. The accident occurred on 24.07.2009 and after 10 months of accident, on 22.03.2010, Ashish got expired. There is a typographical error regarding the date of death of deceased. She volunteered to depose that she has already placed on record the copy of death certificate of deceased. Mr. Richard Gazmer has already informed about her ex-husband, Ashish Subba and her son Aryan.
Mr. Richard Gazmer took full responsibility of her and her son Aryan for future as well. At present, the age of her son Aryan is 20 years and he is studying and also in sports (football). Her son Aryan knew about Mr. Richard Gazmer after her marriage with him and identify him as father. One daughter is born out of her marriage with Richard Gazmer.
8.3 . RW-1 agreed to the suggestions put by Ld. Counsel for petitioner that she got married to deceased on 14.02.2022 and after this marriage, one child Aryan was born on 21.09.2003; that she got remarried with Richard Gazmer on 07.05.2011.
8.4 . RW-1 denied to the suggestions put by Ld. Counsel for petitioner that she has not filed any medical documents of the deceased; that the future of her son and herself are not safe with Richard Gazmer. She volunteered to depose that he is very responsible and ideal father figure for her son and daughter and their future is safe.
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 10/189. Final Arguments:
9.1 . Submissions on behalf of petitioner 9.1.1 . During the course of final arguments, it was argued on behalf of Ld. Counsel for petitioner that the deceased died intestate and only mother and son of the deceased who are the petitioner and respondent no. 3 respectively in the present case can be treated as Class 1 legal heir.
Respondent no. 2 who is stated to be the wife of the deceased cannot be treated as Class 1 legal heir since after the demise of the deceased, respondent no. 2 remarried. There is neither any will in favour of respondent no. 2 nor respondent no. 2 was a nominee in the securities of the deceased. In support of its contentions, Ld. Counsel for petitioner relied upon the case of 2021 SCC onLne Chh 2192 Loknath vs. Sindhu & Ors. Finally, it was prayed that succession certificate be issued in favour of petitioner and respondent no. 3.
9.2 . Submissions on behalf of respondent no. 2 and 3 9.2.1 . Per contra, it was argued by Ld. Counsel for respondents that the petitioner as well as respondents no. 2 and 3 are entitled to equal share in the estate of the deceased as petitioner, respondent no. 2 and respondent no. 3 are Class 1 legal heirs of the deceased. Respondent no. 2 remarried on 07.05.2011 after the deceased expired on 22.03.2010. The re-marriage of respondent no. 2 has no role to play in the succession of the estate of the deceased, in view of the fact that when succession opened i.e. 22.03.2010 (date of death of deceased), the respondent no.
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 11/182 was a widow. There is no law which states that re- marriage after the death of the deceased would bar the female from inheriting the estate of the deceased. Ld. counsel of the respondents has relied upon case of Smt. Jaiwantabai Vs. Sunanda & Ors. decided by the Hon'ble High Court of Judicature at Bombay Nagpur Bench:
Nagpur in Second Appeal No. 144 of 2007 on 23.08.2021 and the case of Cherotte Sugathan & Ors. Vs. Cherotte Bharathi & Ors. decided by the on Hon'ble Supreme Court of India in Appeal (Civil) 1323 of 2008 on 15.02.2008. Finally, it was prayed that succession certificate be issued in favour of petitioner, respondent no. 2 and respondent no. 3.
10 . Heard the final arguments advanced by Ld. Counsel for the petitioner and respondents. This Court has carefully perused the evidence on record in light of the contents of the pleadings and considered the oral submissions advanced by Ld. Counsel for both the parties.
11 . Appreciation and Findings:
11.1 . Issue no. (i)
(i) Whether respondent no. 2 is entitled to any share in the securities of the deceased pursuant to her re-marriage?
(OPR) 11.1.1 . The onus to prove the issue was upon the respondent.
Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 12/1811.1.2 . The deceased died intestate qua debts and securities which are mentioned in the petition. The said security is an amount of Rs. 8,51,209/- (Rupees Eight Lakhs Fifty One Thousand Two Hundred and Nine Only) lying in the Account No. 451448120 maintained with Indian Bank having branch at Shantiniketan Branch, DDA Market, Shantiniketan, New Delhi 110021. Therefore, the total value of the security held by the deceased for which Succession Certificate has been applied for is Rs. 8,51,209/- (Rupees Eight Lakhs Fifty One Thousand Two Hundred and Nine Only) lying in the Account No. 451448120.
11.1.3 . The petitioner brought the present petition under the Indian Succession Act, 1925 in respect of the debts and securities of the deceased namely Sh. Ashish Subba. Respondent no. 2 and respondent no. 3 who are stated to be the wife and son of the deceased respectively did not give No Objection to the grant of Succession Certificate in favour of the petitioner, rather the said respondents contested the petition of the petitioner, who is stated to be the mother of the deceased. The defence raised in the written statement filed on behalf of respondent no. 2 and 3 is that they being the wife and son of the deceased have the right to grant of Succession Certificate for all claims of the deceased and the petitioner cannot claim any right.
11.1.4 . The petitioner is the mother of the deceased and by virtue of Rule 2 of Section 10 of the Hindu Succession Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 13/18 Act, 1956, petitioner is Class I legal heir. Therefore, it was incumbent upon the respondents to show as to how the petitioner being the mother of the deceased has no right for grant of Succession Certificate for her share in the securities of the deceased. The respondents have miserably failed to do so during the course of proceedings.
11.1.5 . It is not in dispute that respondent no. 2 was married to the deceased and the deceased expired on 22.03.2010. Respondent no. 3 was born out of the wedlock of the deceased and respondent no. 2. It is also not in dispute that after the demise of the deceased, Respondent no. 2 got married to one Richard Gazmer on 07.05.2011. The only issue raised by the petitioner in its reply to the written statement filed by respondent no. 2 and respondent no. 3 is that respondent no. 2 after her remarriage is no longer a legal heir of the deceased, being her previous husband, and therefore ceases to have any interest in the deceased's property.
11.1.6 . In support of the aforesaid contentions, the petitioner has not shown to this Court any relevant legal provisions governing the law of Succession. The case law i.e. Loknath v. Sindhu & Ors. 2021 SCC OnLine Chh 2192, relied upon by the petitioner is of no help to the petitioner as in the said case it was held that unless the fact of remarriage is strictly proved after observing the ceremonies required as per Section 6 of the Act of 1856, the fact of remarriage cannot be said to be established by Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 14/18 which the right to property, which is a constitutional right, is lost that too by widow.
11.1.7 . It is relevant to mention Section 2 of The Hindu Widows' Remarriage Act, 1856 on remarriage whereby the rights and interests for deceased husband's property ceases and then there will be determination as if she has then died. The said Act of 1856 was repealed in the year 1983. As per Section 24 of The Hindu Succession Act, 1956, the widow looses right if she remarries on the date when succession opens. Section 24 was also omitted from the Act of 1956 with effect from 09.09.2005. Hence in the present case, it is to be seen as to what was the position in force on the date of the death of deceased. In the facts and circumstances of the present case, the deceased expired on 22.03.2010, hence the date on which the succession to the property of the deceased opened is 22.03.2010 and the aforesaid legal provisions are not applicable in the instant case.
11.1.8 . On the date when succession opened i.e., 22.03.2010, respondent no. 2 was a widow because it is an admitted position that the date of death of deceased is 22.03.2010 and respondent no. 2 remarried on 07.05.2011. Hence, it cannot be said that respondent no. 2 is disqualified to inherit the properties of the deceased for the purposes of the present petition on account of her remarriage. As contemplated under Section 10 of The Hindu Succession Act, 1956, the widow, surviving son and Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 15/18 mother of the intestate shall be entitled to one share each in the securities of the deceased. Thus, the petitioner, respondent no. 2 and respondent no. 3 being the mother, wife and son of the deceased respectively is entitled to one share each in the estate of the deceased.
11.1.9 . At this juncture, it is relevant to mention the case of Madhvi Amma Bhawani Amma & Ors. v. Kunjikutty Pillai Meenakshi, AIR 2000 SC 2301, 2000 (3) ALT 35 SC, 2001 (49) BLJR 813, wherein, it was held as under:
" The enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining questions of law or fact, which seem to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the Court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorising him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se".
11.1.10 . From the oral and documentary evidence on record, prima facie it can be said that the deceased was the resident of House No. C-44, Bagdola Village, Sector 8, Dwarka, New Delhi 110077 which is reflected in the death certificate, Ex. PW-1/B. The matter thus, falls within the Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 16/18 jurisdiction of this Court. There is also no impediment under Section 370 of the Act to grant Succession Certificate with respect to debts and securities as mentioned in the petition.
11.1.11 . In view of the foregoing reasons, this issue is decided against the respondent and in favour of the petitioner.
12 . Relief:
12.1 .In view of the aforesaid appreciation and findings, this Court holds that the petitioner, being mother of the deceased and respondent no. 2 and 3, being the wife and son of the deceased respectively are entitled to one-third share each to grant of Succession Certificate under Section 373 of the Act in respect of the security pertaining to the deceased i.e. amount of Rs. 8,51,209/- (Rupees Eight Lakhs Fifty One Thousand Two Hundred and Nine Only) lying in the Account No. 451448120 maintained with Indian Bank having branch at Shantiniketan Branch, DDA Market, Shantiniketan, New Delhi 110021. Petitioner and respondent no. 2 and 3 are also entitled to interest/ dividend/ bonus/ consequential benefits, if any, accrued thereupon.
12.2 .Accordingly, Succession Certificate be issued to the petitioner, respondent no. 2 and respondent no. 3 on filing of separate corresponding court fees in terms of Article 12 Schedule I of Court Fees Act, 1870 as applicable in Delhi Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 17/18 and Indemnity-cum-surety bond of the like amount, within 30 days from today.
13 . Petition is accordingly, disposed of.
Digitally signed by ANURADHA ANURADHA JINDAL JINDAL Date: 2024.02.29 16:59:57 +0530 Pronounced in the open Court (Anuradha Jindal) on 29.02.2024 ACJ-CCJ-ARC, South West District, Dwarka Courts, New Delhi Succ.Court No. 5/2022 Parwati Subba v. State & Ors. Page 18/18