Patna High Court - Orders
Urmila Devi vs Krishna Ram & Ors. on 8 January, 2013
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.176 of 2011
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Urmila Devi, wife of Late Bihari Ram, resident of Village/Mohalla-Shivpuri
Vishunpur, Chitkohra, P.S. Gardanibagh, District and Town-Patna
.... .... Opp.Party/Appellant
Versus
1. Krishna Ram
2. Ramkewal Ram
3. Munna Ram,
All sons of Late Bihari Ram, resident of Village-Motipur, P.S.
Naubatpur, District-Patna
4. Munni Devi, D/O Late Bihari Ram and W/O Mohan Ram, resident of
Village- Nathupur, P.S. Parsa Bazar, District-Patna
5. Kiran Devi, daughter of Late Bihari Ram and W/O Gorakh Ram, resident of
Village-Masaurhi, P.S. Masaurhi, District-Patna
.... .... Petitioners/ Respondents
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Appearance:
For the Appellant : Mr. Madan Prasad Singh, Advocate
For the Respondents : Mr. Ajay Kumar Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
C.A.V. ORDER
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10 8-01-2013The present appeal under Section 384 of the Indian Succession Act,1925( hereinafter referred to as the "Act") has been preferred against an order dated 30.11.2010 passed by the learned Additional District Judge, IVth, Patna in Misc. Case No.112 of 2003, whereby the learned Addl. District Judge has allowed the petition filed on behalf of the petitioners/ Respondents under Section 383 of the Act for revocation of the order dated 20.01.2003 passed in Succession Case No. 91 of 2002 by the learned Addl. District Judge VI, Patna, whereby it was directed for issuance of Succession Certificate in favour of Opp.Party( appellant herein).
Short fact of the case is that Opp.Party/appellant herein after the death of one Bihari Ram, who was a government employee, filed an 2 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 2/8 application under Section-372 of the Act for grant of Succession Certificate authorizing her to collect the amount of Provident Fund and Gratuity left by Late Bihari Ram claiming to be his wife. In support of her claim for grant of succession certificate, the applicant Urmila Devi was examined as A.W.1 and her son Ranjit Kumar was examined as A.W.2.
By the order dated 20.01.2003, the learned 6th Addl. District Judge, Patna allowed Succession Case No.91 of 2002 and directed for issuance of Succession Certificate in favour of appellant Urmila Devi authorizing her to collect the amount left by her deceased husband, Bihari Ram in G.P.F. Account and Gratuity. After the order dated 20.01.2003 passed in Succession Case No.91 of 2002, petitioners/ respondents filed a petition under Section 383 of the Act vide Misc.Case No.112 of 2003 for revocation of order dated 20.01.2003 passed in Succession Case No.91 of 2002 . In Misc. Case No.112 of 2003, both parties were allowed to adduce evidence and finally the learned Addl. District Judge IV, Patna by order dated 30.11.2010 allowed Misc.Case No.112 of 2003 and revoked the order dated 20.01.2003 passed in Succession Case No.91 of 2002, whereby direction was issued for issuance of Succession Certificate in favour of Urmila Devi ( appellant herein). Aggrieved with the order dated 30.11.2010, the appellant has preferred the present appeal.
Sri Madan Prasad Singh, learned counsel for the appellant and Sri Ajay Kumar Sinha, learned who has appeared on behalf of all the Respondents, were heard at length and order was reserved on 03.08.2012.
While assailing the impugned order, learned counsel for the appellant has argued that late Bihari Ram died on 17.09.2001 leaving behind him the appellant and her son as legal heirs. Her husband was a 3 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 3/8 Class-III employee in the office of the Director, Maleria Control Unit, Patna. It was submitted that her husband was earlier married with one Janki Devi in the year 1965. However, she died in the year 1990. After the death of Janki Devi (first wife of Late Bihari Ram), Bihari Ram started living with the appellant at Patna as husband and wife and out of their wedlock, a son was born. The appellant had solemnized marriage with Bihari Ram on 18.11.1999 at Hanuman Mandir according to Hindu rites and rituals, which was subsequently affirmed by an affidavit dated 19.11.1999 with their joint photographs, which was authenticated and declaration certificate was granted by the Notary Public, Patna on 19.11.1999. It was argued that her husband Bihari Ram was killed on 17.09.2001. However, his dead body was cremated by the police. Subsequently, after knowing the fact regarding the death of her husband, the appellant performed Shradh ceremony and thereafter, for obtaining succession certificate, a succession case vide Succession Case No.91 of 2002 was filed in the year 2002. In the succession case, the appellant and her son Ranjit Kumar were examined as Applicant Witnesses. Her son Ranjit Kumar had issued no objection in favour of the appellant. In the succession proceeding, death certificate of Late Bihari Ram was brought on record. In the case, citation was issued inviting objection, but none had filed any objection and finally the succession case was allowed. According to Sri Madan Prasad Singh, learned counsel for the appellant, there was no defect, error or illegality in the order for issuance of succession certificate in favour of the appellant, but the learned Addl. District Judge-IVth, Patna on revocation petition filed on behalf of the Respondents has passed an order for revocation of order dated 20.01.2003, whereby the certificate for 4 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 4/8 succession was directed to be issued in favour of the appellant. It was submitted that since the appellant was living with the deceased after the death of his first wife continuously, it will be deemed that the appellant was living as his legally wedded wife. Ranjit Kumar, who has born during the said relation of the appellant with Late Bihari Ram, was required to be treated as legal heir and son of both late Bihari Ram and the appellant. In support of his argument, learned counsel for the appellant has relied on an Apex Court Judgment reported in (2010)9 SCC 209; Madan Mohan Singh & Ors Vs. Rajnikant & Anr. He has specifically referred to paragraph no.23 of the said Judgment. For better appreciation, it would be appropriate to quote paragraph-23 of the said Judgment, which is as follows:
"23. In S. Khushboo Vs. Kanniammal this Court, placing reliance upon its earlier decision in Lata Singh Vs. State of U.P. held that life-in-relationship is permissible only in unmarried major persons of heterogeneous sex. In S.P.S. Balasubramanyam Vs. Suruttayan, this Court held that if a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate."
Learned counsel for the appellant further submits that the learned court below has further committed an error in allowing the revocation petition holding therein that the appellant was not legally wedded wife. He submits that only on the basis of the aforesaid ground, revocation was not required to be allowed. On this very point, he has relied on a Judgment reported in AIR 2006 Karnataka 147; Ganamma & Ors Vs. 5 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 5/8 Devaki & Ors. It was argued that since the appellant was living with Late Bihari Ram after the death of his first wife and subsequently in the year 1999, she had solemnized marriage at Hanuman Mandir, Patna the appellant was a legally married wife of the deceased Bihari Ram and she was only entitled to get succession certificate in respect of retiral dues of her husband. He has also argued that the appellant has brought on record Identity Card issued by the Election Commission of India to show that the appellant was wife of Late Bihari Ram. The said copy of the Identity Card was produced in Misc. Case No.112 of 2003 by the appellant as a public document, which has been brought on record of the present memo of appeal as Annexures 3 and 4. On the aforesaid grounds, he has prayed for setting aside the impugned order dated 30.11.2010 passed in Misc. Case No.112 of 2003.
Sri Ajay Kumar Sinha, learned counsel, who has appeared on behalf of all the Respondents, has vehemently opposed the prayer of the appellant. First of all, it was argued that though the appellant had filed a succession case in the court of the learned Addl. District Judge-VI, Patna vide Succession Case No.91 of 2012, no valid notice or citation was issued to enable the Respondents to raise/ file any objection, who were legal heirs of the deceased Bihari Ram. It was submitted that Respondent nos.1 to 3 are sons of Late Bihari Ram, whereas Respondent nos.4 and 5 are daughters of Late Bihari Ram. They had born from the wedlock of Bihari Ram and Janki Devi, who was mother of the Respondents. Respondents' mother, namely, Janki Devi died in the year 1990. It was claimed that their father was having good character and he had never kept any lady or solemnized second marriage. In support of the plea that Late Janki Devi, 6 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 6/8 mother of the Respondents, was wife of Late Bihari Ram before the learned court below, a copy of registered sale deed was brought on record to show that one Judagi Hajam and Smt. Budhiya Devi had jointly executed sale deed in the name of Janki Devi, wife of Bihari Ram. The said sale deed was executed in the year 1974. The sale deed was jointly executed by Judagi Hajam and Smt. Budhiya Devi in favour of Janki Devi, wife of Bihari Ram. In the revocation proceeding, i.e. Misc. Case No.112 of 2003, altogether seven witnesses were examined on behalf of Respondents, amongst them two were independent witnesses i.e. P.Ws.6 and 7, who had categorically disclosed that deceased Bihari Ram had his sons and daughters, who are Respondents in the present case. It was emphatically argued that in succession case, no citation was issued to enable the Respondents to file any objection. They came to know about the order passed in the succession case only when they approached the Department for settlement of death-cum- retiral dues of their father and only thereafter Miscellaneous Case for revocation of issuance of succession certificate was filed by the Respondents. He submits that the impugned order i.e. order dated 30.11.2010 was passed after enabling both the parties to adduce evidence and full opportunity was provided and thereafter discussing each and every fact, the learned 4th Addl. District Judge, Patna has allowed the revocation case i.e. Misc. Case No.112 of 2003, which requires no interference. Sri Sinha has further argued that since the Certificate was obtained by making false suggestion and considering the fact regarding non-impleading all the legal heirs i.e. Respondents, herein by the appellant, the learned court below has rightly allowed the miscellaneous case.
7 Patna High Court MA No.176 of 2011 (10) dt.08-01-20137/8
Besides hearing the parties, I have also perused the materials available on record. On perusal of materials on record, it is evident that no proper citation was issued to the legal heirs, who are Respondents in the present appeal, for raising any objection in Succession Case No.91 of 2002. A false plea of the appellant in succession proceeding is writ large due to the reason that the appellant had taken a plea that Ranjit Kumar had born out of wedlock of the appellant and Late Bihai Ram, whereas the age of son, Ranjit Kumar before the court below was noticed as 18-19 years. It is admitted fact that the appellant, as claimed, had solemnized marriage in the year 1999, whereas Late Bihari Ram died in the year 2001, so there was no question of a son born from the wedlock of appellant and Bihari Ram, who was having age of about 18-19 years sometime in the year 2003 This suggests that the appellant was having a son even on the date of her claimed marriage with Bihari Ram. The second plea of the appellant that she had brought on record the Identity Card in proceeding of Misc. Case No.112 of 2003 purported to be issued by the Election Commission of India is required to be rejected out rightly due to the simple reason that the document i.e. Annexure-4 at page 20 of the memo of appeal i.e. Identity Card of the appellant issued by the Election Commission of India. On perusal of this document, it is evident that this document was issued on or after 01.01.2005 and, as such, there was no occasion for the learned Addl. District Judge, 6th Patna to notice this document i.e. Identity Card of the appellant. In a proceeding, which was initiated in the year 2003, such document was not required to be looked into. Moreover, no such document was got exhibited by the appellant before the court below and, as such, at the appellate stage, this Court may not take any notice of such document. 8 Patna High Court MA No.176 of 2011 (10) dt.08-01-2013 8/8
After going through the materials on record, I do not find any error in the impugned order and, as such, the appeal stands dismissed.
(Rakesh Kumar, J) NKS/-