Delhi District Court
Sh. Mahipal S/O. Late Gurcharan vs The State & Ors on 7 April, 2014
IN THE COURT OF SHRI SANDEEP GARG :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : 621/2002
Unique ID No : 02401C0475672007.
In the matter of:
Sh. Mahipal S/o. Late Gurcharan,
R/o. F84, Dakshinpuri, Gali No. 5,
New Delhi110062.
....Petitioner.
Versus
The State & Ors.
.....Respondents.
Date of Institution : 20.08.2002
Date of order when reserved : 07.04.2014
Date of order when announced : 07.04.2004
AND
Petition No. : 350/2007
Unique ID No : 02401C0475672007
In the matter of:
1 Raju, S/o. Late Sh. Gurcharan,
R/o. Village Qutubpur, Shekhari Nagar,
Distt. Bulandshahr, Uttar Pradesh,
Petition No. 621/2002 ; 350/2007
2 Rajender S/o. Late Gurcharan,
R/o. H.No. F555/B, Nand Gram,
Ghaziabad (UP).
3 Sh. Dharampal S/o. Late Gurcharan,
r/o. D203, Shakurpur, JJ Colony,
Delhi110034.
....Petitioners.
Versus
The State & Ors.
.....Respondents.
Date of Institution : 14.05.2007
Date of order when reserved : 07.04.2014
Date of order when announced : 07.04.2004
J U D G M E N T :
1 This judgment will disposed of two petitions bearing No. 621/2002 titled as Mahipal Vs. The State & Ors. and No. 350/2007 titled as Raju & Ors. Vs. The State & Ors., for the grant of Succession Certificate in favour of the petitioners, qua the debts and securities left by Sh. Gurcharan, who had expired in Delhi on 10.04.2002.
2. After filing of the petition, notice of the petition was given Petition No. 621/2002 ; 350/2007 to the general public by way of publication in the newspaper ' THE PIONEER ' dated 05.11.2007 (In petition No. 621 of 02 titled as Mahipal Vs. The State), but none has appeared from general public to oppose or contest the petition.
3 Initially a petition bearing No. 567/2002 titled as Jaswanti Vs. The State, had been filed by Jaswanti claiming to be the wife of deceased Sh. Gursharan. In that petition, respondent No. 2 namely Mahipal, had filed objections claiming that Smt. Geeta, who was also respondent No. 11 in that petition, is the second wife of deceased Sh. Gursharan. During the pendency of that petition, petitioner Jaswanti had also expired. Vide order dated 25.04.2007, that petition had been abated on account of death of petitioner. Thereafter, the present petitions bearing No. 621 of 2002 titled as Mahipal Vs. State and No. 350/07 titled as Raju Vs. The State had been filed. 4 In the petition filed by Mahipal, Smt. Gita is one of the respondent. The brothers and sisters of the petitioner namely viz. Rajender, Dharampal @ Rajoo, Chander, Bimla Rajjo, Rukkan and Rupen are the other respondents. In their objections, the brothers and Petition No. 621/2002 ; 350/2007 sisters, interalia contended that Smt. Gita is not the legally wedded wife of the deceased Late Sh. Gurcharan and only Jaswanti was the legally wedded wife of the deceased and Smt. Gita had conspired with each other to grab the service benefits of the deceased. Second marriage during the life time of the first spouse is void abinitio. 5 In his reply to the objections, petitioner contended that the first wife of the deceased i.e. Smt. Jaswanti had refused to live/stay with deceased Sh. Gurcharan, who was an employee of AIIMS. She had given her consent to second marriage of her husband with Smt. Geeta. He is a nominee in the service record book of deceased and he was living with his father and step mother.
6 In order to substantiate his case, the petitioner himself deposed as PW1. He stated that his father Late Sh. Gurcharan was residing at F84, Dakshin Puri, New Delhi62 since year 1976. His father had got married with Smt. Jaswanti. Out of this wedlock, four sons including him, viz. Sh. Dharam Pal, Sh. Raju and Sh. Rajender and five daughters namely Smt. Chander, Ms. Bimla, Ms. Rajee, Ms. Rukman and Ms. Rupen were born. All the children are alive, who are Petition No. 621/2002 ; 350/2007 parties in the petition. During the life time of his mother Smt. Jaswanti, his father late Sh. Gurcharan got married with Smt. Geeta in the year 1991 with the consent of his mother, Smt. Jaswanti. He and other relatives had participated in the solemnization of the second marriage of his father. Since marriage, his father and step mother Smt. Geeta were living together as husband and wife at F84, Dakshin Puri, New Delhi, till the death of his father. After the death of his father, his step mother has been residing in the said house i.e. F84, Dakshin Puri, New Delhi. That as his late father had married with Smt. Geeta i.e. his step mother, his mother Smt. Jaswanti and other family members had not lodged any complaint regarding second marriage. His step mother Smt. Geeta discharged her matrimonial duties sincerely and perfectly during the life of his father. He is a nominee in the service records of Late Sh. Gurcharan.
7 During his cross examination, he has stated that prior to 1976, he was residing at Village Qutub Pur, Bulandshahr (UP). His relations with his father were cordial. The name of his mother was Jaswanti Devi. He admitted that Smt. Jaswanti was the legally wedded wife of his deceased father Sh. Gurcharan. He knew Geeta Devi for Petition No. 621/2002 ; 350/2007 the last 35 years. Gita Devi got married with Sh. Gurcharan 35 years ago. He did not file any documentary proof with regard to the marriage of Gita Devi with his father Late Sh. Gurcharan. No child was born from the wedlock of the deceased with Gita Devi. He denied that the deceased had not performed second marriage with Smt. Gita Devi. He admitted that he has four brothers and five sisters. 8 PW2 Gita deposed that she had not married to Late Sh. Gurcharan in the year 1991 in the presence of relatives and friends. She had been residing at House No. 84, Block F, Dakshin Puri, New Delhi alongwith her husband till his death and even after his death, she continued to reside there. She had discharged all her duties his ailment. No child was born out of this wedlock. Copy of her election Card is Ex. PW2/1. She admitted Smt. Jaswanti Devi, was the first wife of Late Sh. Gurcharan. She admitted that Smt. Jaswanti was the legally wedded wife of Late Sh. Gurcharan. She was residing in the house of Gurcharan since 22 years. Her marriage was performed with Sh. Gurcharan at a Temple. Jaswanti had expired after her marriage with Sh. Gurcharan.
Petition No. 621/2002 ; 350/2007 9 In petition bearing No. 350/2007, respondent Dharampal deposed as RW1. He stated that deceased Sh. Gurcharan was his father. He was working in AIIMS at Ansari Nagar, New Delhi as a Nursing Orderly and posted in Orthopedic ward. He died on 10.04.2002, while he was performing his duty. Gurcharan had got married with Smt. Jaswanti. Out of the said wedlock, four sons including himself, Raju, Rajender, Mahipal and five daughters namely Smt. Chander, Ms. Bimla, Ms. Rajjo, Ms. Rukman and Ms. Ruppen were born. His mother Jaswanti, was the legally wedded wife of deceased and she had already expired on 14.11.2006. Smt. Gita was not the legally wedded wife of Late Sh. Gurcharan. The deceased was habitual drunker and under of influence of liquor, he had changed the nomination.
10 During cross examination, he stated that his relations with his father were cordial. He was residing at Shakapur address i.e. D203, Shakarpur JJ Colony since 19952002. He used to visit the house of his father very often. His brother namely Mahipal alongwith his family, brother Raju and his mother Jaswanti were residing with Petition No. 621/2002 ; 350/2007 his father. He does not know as to whether Smt. Geeta Devi was residing with his father or not. He does not know as to whether his father had made Mahipal as his nominee in his service record or not. His father was not suffering from any disease. He admitted that his father was suffering from Paralysis since the year 2000. He has admitted that Mahipal used to look after his father during his illness. At the time of death his father, he had visited the house of his father. He was present at the time of performance of the last rites of his father. 11 The court has heard the arguments advanced by the ld. counsel for the parties.
12 It is contended by Ld. counsel for the petitioner that deceased Sh. Gurucharan had got married with Smt. Geeta and therefore, she is also entitled to a share in the service dues of her husband. Deceased had also nominated petitioner Mahipal to be entitled to his service dues.
13 On the other hand, it is contended by Ld. counsel for the respondents that Smt. Geeta was not legally wedded wife of deceased Petition No. 621/2002 ; 350/2007 Gurucharan. The deceased Gurcharan had under influence of liquor nominated petitioner as his nominee in his service record. 14 It is no longer res integra that succession petitions are to be decided summarily. Sec. 373 of the Indian Succession Act provides that a succession petition is to be decided in a summary manner and even if court cannot decide the right to the certificate without determining questions of law or fact which may seem to be too complicated and difficult for determination in a summary proceedings, the Court may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. Thus U/s. 373 of Indian Succession Act, only prima facie case is to be seen and other questions of law and fact which may be complicated are to be decided by a regular civil court.
In the case of Madhvi Amma Bhawani Amma and others, Appellants Vs. Kunjikutty Pillai Meenakshi Pillai and others, Respondents. AIR 2000 Supreme Court 2301=2000 AIR SCW 2432 it was held that "subsec. (3) of S. 373 of Succession Act which deals with procedure for grant of certificate reveals two things, first adjudication for grant of certificate is summary proceedings and Petition No. 621/2002 ; 350/2007 secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on applicants prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be decision on an issue finally decided between the parties. If that be so the principle of res judicata cannot be made applicable."
15 In the present petition, the interse relationship between the parties are not disputed. It is contended that Geeta is also the legally wedded wife of the deceased Gurucharan and therefore, she is also entitled for a share in the service dues of the deceased. In his examination, PW1 Mahipal had categorically admitted that deceased Gurucharan had got married with Smt. Jaswanti Devi and out of this wedlock, four sons (including him) namely Sh. Dharam Pal , Sh. Raju and Sh. Rajender and five daughters namely Smt. Chander, Ms. Bimla, Ms. Rajee, Ms. Rukman and Ms. Rupen were born. During the life time of his mother Smt. Jaswanti, his father Late Gurucharan married Petition No. 621/2002 ; 350/2007 with Smt. Geeta in the year 1991 with the consent of his mother Smt. Jaswanti.
16 In her cross examination, Geeta admitted that Jaswanti is the legally wedded wife of Late Sh. Gurcharan. 17 The question involved for determination in these petitions is as to whether Geeta Devi is entitled to a share in the service dues of the deceased or not. During their testimonies, petitioner Mahipal as well as PW2 Geeta have categorically admitted that Geeta got married with the deceased during the subsistence of his marriage with Smt. Jaswanti. Therefore, the marriage of Geeta with the deceased is void ab initio.
18 As regards the contention of petitioner Mahipal that he is the nominee in the service record of deceased Gurcharan and is therefore, entitled to dues of deceased, the law is well settled that a nominee does not step into the shoes of successor by merely nomination. Reference can be made to the decisions of Hon'ble Supreme Court in the cases of Vishin N. Khanchandani Vs. Vidhya Petition No. 621/2002 ; 350/2007 Lachmandass Khanchandani AIR 2000 SC 2747 and in the case of Sarbati Devi Vs. Usha Devi AIR 1984 SC 346.
19 Therefore, the court is of the considered opinion that there is no impediment for the grant of Succession Certificate in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan. Accordingly, a Succession Certificate be issued in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan to the extent of 1/9th share each, in terms of Ex. P1, on filing of requisite proportionate court fee and on furnishing an Indemnity Bond with one surety within 15 days.
Petition No. 621/2002 ; 350/2007 No further orders are required to be passed in the matter. A copy of this judgment may placed in the judicial file of petition bearing No. 350/2007 titled as Raju Vs. The State.
Both the files be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 07.04.2014 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
Petition No. 621/2002 ; 350/2007
621/2002
07.04.2014.
Present : Sh. P.R. Kashyap, Ld. counsel for petitioner with petitioner in person.
Sh. Babit Kumar, Ld. counsel for respondent.
Ms. Priyanka Aggarwal, Proxy counsel for counsel for AIIMS.
Final arguments heard.
Vide separate judgment announced in the open court today, Succession Certificate is issued in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan. Accordingly, a Succession Certificate be issued in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Contd.....2....
Petition No. 621/2002 ; 350/2007 :2: Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan to the extent of 1/9th share each, in terms of Ex. P1, on filing of requisite proportionate court fee and on furnishing an Indemnity Bond with one surety within 15 days.
No further orders are required to be passed in the matter. A copy of this judgment may placed in the judicial file of petition bearing No. 350/2007 titled as Raju Vs. The State.
Both the files be consigned to Record Room.
(Sandeep Garg) ACJCumARC (Central)/Delhi 07.04.2014 Petition No. 621/2002 ; 350/2007 350/2007 07.04.2014.
Present : Sh. Babit Kumar, Ld. counsel for petitioner with petitioner.
Sh. P.R. Kashyap, Ld. counsel for respondent. Ms. Priyanka Aggarwal, Proxy counsel for counsel for AIIMS.
Final arguments heard.
Vide separate judgment announced in the open court today, Succession Certificate is issued in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan. Accordingly, a Succession Certificate be issued in favour of Petitioner namely Sh. Mahipal (Petitioner in petition No. 621/02) and petitioners namely Sh. Raju, Sh. Rajender and Sh. Dharampal (Petitioners in petition No. 350/07) and also in favour of respondents namely Ms. Chander, Ms. Contd.....2....
Petition No. 621/2002 ; 350/2007 :2: Bimla, Ms. Rajjo, Ms. Rukman and Ms. Rupan qua the debts and securities of deceased namely Sh. Gurcharan to the extent of 1/9th share each, in terms of Ex. P1, on filing of requisite proportionate court fee and on furnishing an Indemnity Bond with one surety within 15 days.
No further orders are required to be passed in the matter. A copy of the judgment may placed in the judicial file of this case.
Both the files be consigned to Record Room.
(Sandeep Garg) ACJCumARC (Central)/Delhi 07.04.2014 Petition No. 621/2002 ; 350/2007