Patna High Court
Mohd. Rashid Alam @ Md. Rashid And Ors. vs Bibi Roshan Jahan And Ors. on 22 March, 2004
Equivalent citations: 2004(2)BLJR1051
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT Sudhir Kumar Katriar, J.
1. Both the appeals arise out of a common judgment, are with respect to the same subject matter, and are being disposed of by a common judgment. The same are directed against the judgment and decree dated. 23.6.2000, passed by the learned Addl. District Judge XI, Patna, in Succession Case No. 125 of 1996 and Succession Case No. 137 of 1996.
2. Misc. Appeal No. 396 of 2000 arises out of Succession Case No. 125 of 1996 (Bibi Roshan Jahan v. Estae of deceased Md. Serajuddin Khan and Ors.), praying for succession certificate in the name of Bibi Rohsan with respect to the estate of Md. Serajuddin Khan. According to her case, she married Md. Serajuddin Khan on 10.10.1990, on which date she was a widow and Md. Serajuddin was widower. He was then working as a driver in the Bihar State Transport Corporation (hereinafter referred to as 'the Corporation'), retired with effect from 1.4.1994, and died on 8.4.1995. The couple have had two minor children who are the applicants in this case along with the widow. Her further case is that Md. Serajuddin Khan has six children from his first wife who are the opposjte parties in this case. The contest in the present case is mainly for the post-retirement benefits admissible to Md. Serajuddin Khan or his heirs and the applicants claim 50% of the same, conceding the balance 50% to the opposite parties.
2.1. The application of Case No. 125 of 1996 Bibi Roshan Jahan and Ors. v. The Estate of deceased Md. Serajuddin Khan, examined seven witnesses in support of their case and brought on record documents which have been marked as exhibits. Their consistent case was that she is the legally-wedded wife of the employee and the two children, who are co-applicants, were born out of the wedlock. They equally recognize the status of the opposite parties, who are the applicants in the analogous case No. 137/96, and prayed for grant of succession certificate to the extent of 50% of the post-retirement benefits which has been allowed by the impugned judgment. Therefore, the opposite parties of Case No. 125/96 have preferred Misc. Appeal No. 396 of 2000.
3. Misc. Appeal No. 413 of 2000 arises out of the said Succession Case No. 137 of 1996 Md. Hashid Alam v. Md. Zabir Alam and Ors., which was preferred by the children of Md. Serajuddin from his first wife. It is their case that after the death of his first wife, Md. Serajuddin did not re-marry, and they do not recognize the status of Bibi Roshan as his legally-wedded wife. Therefore, they claim succession certificate with respect to the entire post-retirement benefits admissible to the late employee or his heirs.
3.1. The applicants of Case No. 137/96 have examined six witnesses in support of their case and have also brought on record documents which have been marked as exhibits. Their case is that the employee had married only the mother of the applicants who had died on 17.1.1987 whereafter he did not re- marry. They do not recognize the status of Bibi Roshan as the second wife of the employee and equally do not recognize the status of the other two applicants as their children and have, therefore, prayed for grant of succession case to the extent of the whole of the post-retirement benefits admissible to the employee or his heirs. The application has been allowed in part by a common judgment whereby succession certificate has been granted to the extent of 50% to the applicants, and the balance 50% has been allowed to Bibi Roshan Jahan and her two children. Hence M.A. No. 413 of 2000 at the instance of the applicants of Case No. 137/96.
4. It is the admitted case of the parties that the employee was working as a driver in the Corporation who retired from service with effect from 1.4.1994, and died on 8.4.1995. It is the further admitted case of the parties that he was married to Bibi Ayesha Khatoon, who had died on 17.1.1987 and have had six children who are the opposite parties in Case No. 125/96, and the applicants in Case No. 137/96. However, it is in dispute and in fact the only question to be decided in these appeals is whether or not Bibi Roshan is the legally-wedded wife of the employee. We proceed to examine the evidence of the parties on this question.
5. In order to avoid confusion, we shall take the basic facts and refer, to the position of the parties obtaining in Case No. 125/96. The applicants have examined Smt. Maya Devi (AW 1) who is a professional mid-wife and claims to have known the couple because she had delivered both their children. She has further deposed that the employee had taken her at the time of delivery to their residence in Serpentine Road where they were living on rent. She has given some details which are relevant and create a clear impression that she was really called for the delivery. She appears to be a very truthful witness and has frankly stated in her cross-examination that she has no personal knowledge about the marriage of the couple, and has stated only to the extent that she was connected with the family, namely, delivery of the two sons and not beyond that. Her evidence inspires confidence.
5.1. The applicants have examined Md. Munna (AW 2), who is working as a driver in the Bihar Government Secretariat, and seems to be the full brother of Bibi Roshan. He has deposed to the effect that she was married to the employee about 7 to 8 years ago and have had two children. He had attended their wedding. He has given further details about the wedding and the Nikah Dain Mohan etc. in his cross-examination. He has frankly stated in his examination-in-chief that Ajmal Ali Khan was the first husband of Bibi Roshan who have and one child, namely Md. Tamanna, aged 18 years, is married and lives with his mother. He has further frankly and fairly deposed that the opposite parties are the children of the employee from the first marriage. He appears to be truthful witness and there is nothing which may create doubt of his testimony.
5.2. The applicants have next examined Shantu Kumar (AW 3), who is a student, and has deposed to the effect that the couple lived in his house as tenant in 1992-93 where one son was born to them. He has truthfully deposed that his father was then an employee in the Patna High Court who had been allotted a quarter in the Serpentine Road where the couple were living as tenants. I am impressed by his truthfulness when he states in his cross-examination that a Government servant cannot induct anybody in the quarter as a tenant notwithstanding which he has stated the truth that the couple were living as tenants. He has further stated that Bibi Roshan was working in his household and, therefore, in that sense she -was not a tenant. This witness appears to be very innocent and worthy of reliance.
5.3. The applicants have next examined Shahjadi Khatoon (AW 4), who is a housewife, and claims to be elder sister of Bibi Roshan. She has deposed to the effect that Bibi Roshan was married to the employee eight years ago and she had participated in the wedding. She has given relevant details about the wedding who have had two children from the present marriage. She has frankly stated about the first marriage of Bibi Roshan and their son named Tamanna. She has further stated in her cross-examination that she (Bibi Roshan) was a widow at the time of her marriage with the employee. She appears to be a truthful witness and free from any doubtful statement in her deposition.
5.4. The applicants have next examined Md. Shamsul Hoda Qadri (AW 5) who is the Nayeb Imam of Kotwali Mosque. He had performed the wedding rituals. He has deposed to the effect that he had recited the Nikah at the instance of Md. Nayeem, father of Bibi Roshan, which was followed by Nikahnama, the formal document of marriage prepared on 4.10.1990, is written in his hand in Urdu, and has been marked Ext. 1. He has identified the signature thereon of Md. Serajuddin Khan (the employee) recorded in his presence and has been marked Ext. 1/1. He has given other reasonable details of the wedding. There is nothing in his deposition which may cast any doubt about the veracity of his deposition and appears to be a truthful witness.
5.5. Bibi Roshan has examined herself in support of her case as AW 6. She has deposed to the effect that she was married to the employee on 4.10.1990 in Adalatganj, Patna. She has further deposed to the effect that four brothers of her husband along with Sitaram, a co-employee, were present at the time of wedding. She has further given the names of the other family members who were present at the time of the wedding. She has spoken about the Dain Mohar. The couple had after their wedding shifted to the quarter of Rajeshwar Babu in Serpentine Road. She has also deposed to the effect that she has had two children from Serajuddin and has frankly deposed about her previous marriage- She has fairly recognized the first marriage of Serajuddin with Bibi Ayesha Khatoon and their six children who are the opposite parties, and concedes their entitlement in equal measure. She has also deposed to the effect that Maya Devi, the mid-wife, had delivered her two children. She has been subjected to a lengthily cross-examination but there is nothing in the testimony to shake her credibility as a truthful witness.
5.6. Md. Rashid (AW 7) is a rickshaw-puller and has stated that Bibi Roshan is his sister. He has further deposed to the effect that she was married to Md. Serajuddin and the marriage was solemnised by Shamsul Hoda Qadri, He was a witness to the Nikahnama (Ext. 1) and had put his signature therein which has been marked Ext. 1/2. He has also proved photocopy of the application sent by Md. Serajuddin to the Corporation's office declaring Bibi Roshan as a nominee, which has been marked Ext. 2. He is a competent and truthful witness.
6. I must examine the evidence of the opposite parties (the appellants herein) before I reach the final conclusion. Their first witness is Rajeshwar Prasad (OPW 1) who is a Section Officer in the Patna High Court. He has deposed to the effect that Md. Serajuddin or Bibi Roshan had never lived in his Government quarter because it cannot be let out. He further stated that his son, Dilip Kumar (AW 3) has wrongly deposed to the effect that they were living in his quarter as a tenant. He has stated in his cross-examination that he has come to depose at the instance of one Bishun Dayal. He has further stated in his cross-examination that he has married twice, and Dilip Kumar (AW 3) is the son from his first wife. He has denied the suggestion that he is falsely deposing because it is illegal to let out any portion of a Government quarter. It appears to me from a plain reading of his deposition that he has purposely countered the deposition of his son, perhaps because he got terrified by the frank and correct deposition of his son which may have an adverse effect on his service career because of having illegally let out his Government accommodation. The motive to depose falsely is obvious. In any view of the matter, he has not stated at all on the question of the applicant's marriage with the employee. I must at this stage clarify that Dilip Kumar seems to have two names, and he has in his own deposition stated his name as Shantu Kumar, and his father stated his name to be Dilip Kumar Which appears to be his nick name.
6.1. The next witness is Khurshid Alam (OP 2) and is a son of late Serajuddin from his first wife. He has stated to the effect that his father died on 8.4.1995 at village Parsadi English where he was living. He has further deposed that his mother died in 1986 or 1987 and his father did not remarry. He has denied any relationship or connection between his father and Bibi Roshan. He has in his cross-examination denied about the two children of his father and Bibi Roshan. He has denied the suggestion that he and Roshan had, on account of domestic quarrel, shifted from the official accommodation provided by the Corporation in the Sultan Place complex to the quarter of Rajeshwar Prasad. On being shown the photograph of the couple (Ext. 4), he has refused to recognize Bibi Roshan. The deposition of this witness does not inspire confidence who has refused to recognize even the photograph of his father and has falsely deposed for self-serving motives.
6.2. Lakhandeo Ram is OPW 3 who seems to have worked with the employee for 30-32 years as driver in the Corporation. He has deposed to the effect that both of them lived in the Sultan Palace complex. He denied the applicant's wedding with the employee. It is obvious that he has come at the instance of the opposite parties and has chosen to depose falsely because of his long association with late Serajuddin and his first wife and their children. The deposition does not inspire confidence.
6.3. Kuldeo Bhagat is OPW 4 who seems to be a co-villager of late Serajuddin. He has deposed to the effect that Md. Serajuddin had married only once. It appears from his deposition that the applicant did not go to her husband's village for obvious reasons and, therefore, this witness does not seem to be acquainted with Bibi Roshan. The deposition is of no consequence.
6.4. Md. Hatim is OPW 5 and he seems to be the full brother of Md. Serajuddin. He has deposed to the effect that his brother had married only once and denied the marriage with Bibi Roshan, It appears that the family disapproved of the marriage of Md. Serajuddin with Bibi Roshan perhaps because he had already six children from the first wife and he had married with Roshan fairly late in his life when he was fifty years of age with children, and perhaps also for the reason that the widow had come with a child. That seems to explain the incorrect deposition of his brother.
6.5. Md. Rashid Alam is OPW 6 and is opposite party No. 1 himself (the appellant herein) and is the son of Md, Serajuddin from his first wife. He has dented his father's marriage with Bibi Roshan for obvious reasons. It is a self-serving deposition and does not inspire confidence.
7. It appears to me on a combined reading of the oral evidence on behalf of the applicants that they have deposed with consistency, truthfulness and fairness. It is manifest that Bibi Roshan was a widow and Md. Serajuddin was a widower at the time of their wedding and it was the second marriage for both after the demise of their previous spouses. Md, Serajuddin have had six children from the previous wife and Bibi Roshan has had one son from her previous marriage. The applicants in their main application as well as all their witnesses have fairly recognised the status of the opposite parties as the children of Serajuddin from the previous marriage and their claim to the extent of 50%. Their evidence is consistent and true, seem to be natural and without any effort to exaggerate or suppress any part of their case or to dilute or render doubtful the case of the opposite parties. I am really impressed by the evidence of the applicant's witnesses. The wedding of Md. Serajuddin with Bibi Roshan is evidenced by Nikahanam (Ext. 1) being the original document of wedding, which was in the signature of AW 5, and subscribed by two eye-witnesses whose signatures have been duly proved by the signatories.
7.1. The totality of the evidence adduced on behalf of the opposite parties does not inspire confidence. A few of the witnesses have made self-serving statements. The evidence of OPW 6 refuses to recognize the wedding of Md. Serajuddin and Bibi Roshan which is in the teeth of documentary evidence. The motive is obvious, namely, self-serving motive and the proverbial dislike for the step-mother who has stepped into the family in a situation when his father was already fifty years old with six children. The brother of the employee has falsely deposed for the reasons stated hereinabove. The co-villager has deposed perhaps on account of closer proximity with the family or may not be aware of the factum of the second marriage because it appears that Bibi Roshan had never gone to her husband's village after the marriage. The colleague in the Corporation seems to have falsely deposed on account of the long and close association with late Serajuddin, his first wife, and their children, who were neighbours in the Sultan Place Complex. In totality, the deposition of the opposite parties is not worthy of reliance.
7.2. The documents produced on behalf of the opposite parties are of no consequence and are of no assistance in determining the main issue. Ext. D is the death of certificate. The death of Md. Serajuddin is admitted and is not in dispute. Exts. B and B-2 are letters addressed to the Corporation. There is no evidence to show that the letters were acted upon. Ext. C is the application for payment of benefits to Md. Rashid. But there is no evidence to show that it was acted upon or not. On the other hand, the documentary evidence placed, on record on behalf of the applicant, particularly the Nikahnama (Ext. 1), seems to conclude matters, I, therefore, conclude without hesitation that the applicant was the legally-wedded wife of Md. Serajuddin. She had married Md. Serajuddin after the demise of his first wife and she was herself a widow at that point of time.
8. I must at this stage deal with the preliminary objection raised by the opposite parties (the appellants) which is to the effect that in a proceeding under Section 373 of the Succession Act, it is not open to the Court to decided the question of status of the applicant in summary proceeding. He has relied on the following reported judgments :--
1. Brojendra Sundar Banerjee v. Niladri Nath Mukherjee, Air 1929 Calcutta 661.
2. Abdul Garffur v. Jaya Ravi, AIR 1929 Bombay 456.
3. Ammini Amal v. Lakshmini, AIR 1957 Keral 90.
9. Section 373 of the Act reads as follows :--
"373. Procedure on application.--(1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing,--
(a) to be served oh any person on whom, in the opinion of the Judge, special notice of the applications should be given, and
(b) to be passed on some conspicuous part of the Court house and published in such manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.
(2) When the Judge decides the right thereto belong to the applicant, the Judge shall make an order for the grant of the certificate to him.
(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seems to be too intricate and difficult for termination in a summary proceedings, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.
(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extend of interest and fitness in other respect of the applicants.
It appears to me that the contention gives a restricted meaning to the provisions of Section 373(3) of the Act not intended by the Legislature. With great respect to the Division Bench of the Kerala High Court, law has been correctly laid down in paragraph 4 of the judgment which is to the effect that "........the Act has thus not intended to offer litigant parties an opportunity to contest the question of title to the property. The Court has no doubt to a satisfy itself that the person to whom it grants the certificate has the prima facie right and for this purpose some enquiry may be necessary in many cases......" It is thus manifest that in a situation where it appears to the Court that contested questions of title of properties arise in such an application which seems to be too intricate and difficult for determination in a summary proceeding contemplated by Section 373(3), then the Court may decline to entertain the application, which is not the situation here. In the present case, no such disputed question of title of property has been raised. The issue like the present one, namely, Bibi Roshan was legally-wedded wife of Md. Serajuddin or similar issues, are likely to arise in a proceeding like the present one. I am of the view that the application is maintainable. The contention is, therefore, rejected.
10. In the result, both the appeals are dismissed with costs. The impugned judgment and decree are upheld with one modification/clarification in the operative portion of the judgment. The service conditions of the Corporation do not allow the benefit of family pension. In that view of the matter, the applicants of Succession Case No. 125/96 shall be entitled to 50% of the post-retirement benefits admissible to late Serajuddin and his heirs and shall be handed over to Bibi Roshan Jahan. Similarly the balance of the 50% will be given to Md. Rashid Alam, on behalf of the applicants of Case No. 137/96. I am informed at the Bar that Md. Rashid Alam has received part of the payment.