Madhya Pradesh High Court
Puran Prasad Sharma vs Rajesh S/O Radheshyam And Ors. on 3 September, 1996
Equivalent citations: 1997(2)MPLJ419
JUDGMENT A.S. Tripathi, J.
1. This appeal is preferred against the judgment and order dated 11-9-1995 passed by the Second A.D.J., Bhind, granting a succession certificate only in favour of the respondents Radheshyam and Rampyari.
2. The brief facts are that one Jairam Sharma was a Constable in M.P. Police. He died on 29-1-1989. He was unmarried and had no issues. He left only his brother, sister and others in the family. The dispute arose between the parties when the application was moved for grant of successsion certificate. The contention of the appellant was that he was adopted by deceased Jairam Sharma as a son and he is a legal heir of class I of Section 8 of the Hindu Succession Act and excludes the others.
3. The adoption was denied by the respondents. The parties led evidence and the trial Court after inquiry found that the adoption in favour of the appellant was not proved. The matter was left to be decided among the legal heirs for grant of succession certificate. The trial Court found that the legal heirs are only brother and sister excluding others. Therefore, the certificate was granted in their favour.
4. Aggrieved by the said order, the present appeal is preferred. Heard learned counsel for the appellant Shri R. A. Roman and learned counsel for the respondents Shri S. P. P. Shrivastava and perused the record.
5. It is not disputed that deceased Jairam Sharma was unmarried. The legal heirs were left only in his family were said to be the parties present before the Court. Among the parties, the application of Hindu Succession Act is not disputed. In accordance with the provisions of Section 8 of the Hindu Succession Act, there was none in the family as heirs specified in class I of the Schedule. The only heirs left were the persons specified in class II of the Schedule in the Hindu Succession Act. Appellant Pooran Prasad Sharma is the son of Ramgopal, the brother of deceased Jairam Sharma. Ramgopal is also dead. Pooran Prasad Sharma was claiming to be the sole heir as adopted son of the deceased. Further, in view of the finding of the trial Court when the adoption was not proved, the succession was to be determined in accordance with the heirs of class II specified in the Schedule. In class II also, in accordance with the provisions of Section 9 of the Hindu Succession Act, the entry No. 1 excludes entry No. 2 and entry No. 2 excludes entry No. 3 and so on. There are nine categories of heirs specified in class II in nine entries. The heirs appearing in class II, entry No. 2 are brother and sister who are respondents Nos. 2 and 3 in this case. The appellant is brother's son and respondent No. 1 is also brother's son of the deceased. They are mentioned in entry No. 4 of class II. Since brother and sister were specified in entry No. 2, they exclude the remaining entries appearing subsequent to the same. In this view of the matter, when the heirs are left by the deceased were only come in entry No. 2, the remaining entries following the same are excluded. Therefore, the nephews are not legal heirs in accordance with the class II of Schedule appended to the Act. The trial Court had rightly held that in absence of proof of adoption, the legal heirs were brother and sister Radheshyam and Rampyari and rightly granted the certificate of succession in their favour.
6. On the point of adoption, the parties led evidence which are all oral. There is no documentary evidence to show the adoption in favour of the appellant. On the point of adoption, witnesses produced on behalf of the respondents viz. Radheshyam Sharma (D.W.I), Manna Singh (D.W.2) and Shersingh (D.W.3) had denied any such adoption by the deceased Jairam Sharma. On the other hand, P.W. 1 Pooran Prasad Sharma, the appellant himself, had stated that adoption had taken place in the year 1968. Other witness Suratram (P.W.2) is also stated on the point of adoption and is a resident of the same village. P.W. 3 Vikas Sharma is not a witness of adoption and he had only heard but he did not know anything. His statement is hearsay. The trial Court found that the adoption was not proved on record,
7. In this summary proceeding for grant of succession certificate Under Section 372 of the Hindu Succession Act, the proper evidence on the point of adoption could not be led and the court in this summary inquiry could not record a categorical finding, this is negative or positive. The trial Court simply found that reliable evidence has not been produced on the point of adoption and therefore the same could not be accepted.
8. In this appeal also, the scope of this Court remains only with the summary proceeding and the evidence led is definitely insufficient and the same could not be considered for recording a categorical finding on the point of adoption. The remedy of the appeallant lies in filing a separate civil suit for declaration of his right and only in that proceeding the proper evidence could be led and the point of adoption could be decided. So far as this inquiry is concerned, the trial Court did not accept the evidence on the point of adoption. I do not find any reason to interfere with this observation of the trial Court on this point.
9. Now, learned counsel for the appellant also brought to the notice that the appellant was the nominee in the departmental papers of deceased Jairam Sharma. The first nomination was done on 18-12-1969 wherein only appellant was mentioned as the first nominee to receive the assets of deceased on the event of his death. Two other persons Shrikrishan and Atmaram were also mentioned as nominees in the event of death of first nominee in the same papers. Later on, another nomination paper was filed by the deceased on 10-5-1989 in which he has nominated solely Rajesh Sharma, the respondent No. 1, as nominee.
10. A certificate of succession has to be granted to the deceased's heirs and mere nomination does not take the place of succession in presence of the legal heirs in accordance with the Hindu Succession Act.
11. As pointed out earlier, the two legal heirs of class II entry 2 are available, they are respondents Nos. 2 and 3 and in their presence when they are before the court, the claim of the nominee only on the basis of nomination could not prevail as held in the case of Smt. Sarbati v. Usha Devi, AIR 1984 SC 346.
12. In the presence of the legal heirs, mere nomination does not take the place of a legal representative and the trial Court was fully justified in excluding the claiming of the appellant as well as respondent No. 1 on the ground of nomination.
13. I find that in this summary inquiry the trial Court was fully justified in granting the succession certificate to respondents Nos. 2 and 3 having equal share in accordance with the provisions of Sections 8, 9 and class II of Schedule of the Hindu Succession Act. There is nothing to call for any interference in the order of the trial Court.
14. There is no merit in the appeal. The same is dismissed accordingly. Costs shall be borne by the parties themselves.