Calcutta High Court (Appellete Side)
Ireen Sultana & Ors vs Anjumara Bewa & Anr on 29 November, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 1520 of 2009
with
CAN 5224 of 2010
Ireen Sultana & ors.
versus
Anjumara Bewa & anr.
For the petitioners : Mr. Tarak Nath Halder, Advocate
Mr. Shamim-ul-Bari, Advocate
For the opposite parties : Ms. Nirupama Mondal, Advocate
Heard on : September 2 & 8, 2011
Judgment on : November 29, 2011
1.On February 12, 2003, Ataur Rahaman passed away at his residence. He had initially married Anjumara Bewa, the opposite party no.1, on 2 September 15, 1977 according to Muslim rites and customs. In their wedlock, a daughter, Ashtari Begum, the opposite party no. 2, was born. There is some controversy as to whether marriage between Ataur Rahaman and the opposite party no.1 was dissolved or not, giving rise to the present application. However, I propose to discuss the point urged by Ms. Nirupama Mondal, learned advocate for the opposite parties that marriage between Ataur and the opposite party no.1 subsisted till such time Ataur was alive, at a later part of this judgment.
2. It is, however, not in dispute that Ataur had also married Majeda Bewa, the petitioner no. 3, on July 11, 1980 according to Muslim rites and customs. In Ataur's wedlock with the petitioner no. 3, two children were born, viz. Ireen Sultana and Mohammad Mahafuz Alam, being the petitioners 1 and 2 herein.
3. Ataur was an employee of the postal department and posted at the local Post Office. He died in harness, intestate, leaving behind Rs.16,960/- as debts and securities.
4. The petitioners filed an application under Section 372 of the Indian Succession Act (hereafter the Act) in the Court of the learned Civil Judge (Senior Division), Malda, registered as Misc. Case No. 87 of 2003, upon Ataur's death praying for issuance of succession certificate in respect of his estate. Formalities regarding citation having been complied with, the opposite party no.1 contested the application by filing written objection. Although the opposite party no.2 entered appearance, she did not file any 3 written objection. Witnesses on behalf of the petitioners testified that Ataur had dissolved the marital tie between him and the opposite party no.1 on March 10, 1985 by pronouncement of 'talaq'.
5. The opposite party no.1 in course of deposition said that her marriage with Ataur had not been dissolved. She further stated that during the lifetime of Ataur, he had instituted proceedings under Section 125, Criminal Procedure Code and there Ataur had averred that his marriage with her had not at all been dissolved by pronouncement of 'talaq'.
6. Upon consideration of the evidence on record and provisions contained in Section 373 of the Act, the learned Judge of the trial Court accepted the claim of the petitioners and directed issuance of succession certificate in their favour jointly. In the process of his reasoning, the learned Judge recorded that there was no dispute that Ataur had married the petitioner no. 3 and that the petitioners 1 and 2 were born in their wedlock. He was further of the view that although in summary proceedings under Section 372 of the Act it is difficult to decide finally as to whether marriage between Ataur and the opposite party no.1 was dissolved or not, but the factum of dissolution of their marriage, prima facie, had been established. The application under Section 372 of the Act, accordingly, stood allowed by order dated August 4, 2007.
7. The order of the trial Court was carried in appeal by the opposite party no.1, giving rise to Misc. Appeal No. 30 of 2007. The learned Judge of the lower appellate Court, upon hearing the parties, was of the view that 4 evidence on record was insufficient to hold that marital tie between Ataur and the opposite party no.1 was dissolved. It was further held that all the parties in the misc. case had prima facie title and, therefore, entitled to issuance of succession certificate jointly. The learned Judge of the lower appellate Court by order dated April 3, 2009 allowed the misc. appeal on contest. The impugned order was set aside and an order of remand was passed with direction to the learned Judge of the trial Court to rewrite the order in the light of the observations made therein and to issue joint succession certificate within a month with liberty to the parties to submit stamp paper as per their respective shares.
8. The order of the lower appellate Court dated April 3, 2009 has been challenged in this revisional application under Article 227 of the Constitution.
9. A learned Judge of this Court entertained the revisional application on August 5, 2009. While directing service of copy of the revisional application upon the opposite parties, stay of operation of the impugned order was granted. The opposite parties upon service being effected on them entered appearance and filed an application for vacating the aforesaid interim order, registered as CAN 5224 of 2010.
10. While considering CAN 5224 of 2010, I called upon the learned advocates for the parties to address me on the merits of the revisional application. They have been duly heard.
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11. Mr. Halder, learned advocate for the petitioners contended that the learned Judge of the trial Court was fully justified, on facts and in the circumstances, to direct issuance of succession certificate in favour of the petitioners and that the learned Judge of the lower appellate Court acted illegally in setting aside such order and directing remand for issuance of succession certificate jointly in favour of the parties. According to him, dissolution of marriage of Ataur with the opposite party no.1 was proved by the evidence of PWs 1 and 2 and such evidence was corroborated by the other witnesses viz. PWs 3 and 4. The learned Judge of the trial Court, it was further contended, rightly decided that the petitioners, prima facie, have best title and, therefore, the defence raised by the opposite parties was rightly not considered to be worthy enough to distitle the petitioners to issuance of succession certificate.
12. Reference was made by Mr. Halder to the decision reported in AIR 1968 Punjab and Haryana 292 : First National Bank Ltd. (In. Liqn.) v. Shri Devi Dayal to contend that grant of succession certificate merely clothes the holder of the same with the authority to realize the debts of the deceased and to give valid discharge and to dispose of the amount so realized in accordance with the rights of the parities who are entitled to it.
13. Reference was also made to the decision of the Supreme Court reported in AIR 1995 SC 1607 : S. V. R. Mudaliar (dead) by LRs and ors. v. Mrs. Rajabu F. Buhari (dead) by LRs. & ors. to contend that the appellate Court has to bear in mind the reason arssigned by the trial court before reversing 6 a finding of fact and that in the present case, the well-settled legal principle has not been followed for the interference is warranted.
14. Per contra, Ms. Mondal contended that the trial Court committed error in recording a prima facie satisfaction that marital tie between Ataur and the opposite party no.1 had snapped and that the petitioners had been successful in, prima facie, establishing their entitlement to the debts and securities of Ataur. According to her, there was no 'talaqnama' and that Ataur had never pronounced 'talaq'. She relied on the decisions reported in (2002) 7 SCC 518 : Shamin Ara v. State of U.P. and anr., 2004 (3) CHN 417 : Mohinuddin Middya v. State of West Bengal and ors., and AIR 2004 Karnataka 261 : Mohd. Ibrahim v. Mehrunisa Begum on the principles of law in respect of pronouncement and communication of 'talaq' and it was submitted that pronouncement of 'talaq', if at all by Ataur, does not amount to a valid 'talaq' in the light of such accepted principles and, therefore, the contention of the petitioners that marriage between Ataur and the opposite party no.1 had been dissolved is without merit. She, accordingly, prayed for dismissal of the revisional application.
15. Entitlement of the petitioners to issuance of succession certificate in their joint names and the objection of the opposite parties hinges on the point as to whether marriage between Ataur and the opposite party no.1 should, prima facie, be considered to have been dissolved or not.
16. On perusal of the decisions cited by Ms. Mondal, it appears that the correct law of talaq as ordained by the holy Quran is that 'talaq' must be for a 7 reasonable cause and preceded by attempts for reconciliation between the spouses by two arbiters, one each from the family of each of the spouses, and it is only upon such attempt failing could a 'talaq' be effected.
17. I have looked into the oral testimony of the witnesses on behalf of the petitioners. The petitioner no.3 as PW 1 deposed that marital tie between Ataur and his first wife was dissolved on March 10, 1985. The petitioner no.1 while deposing as PW 2 stated that Ataur had divorced his first wife but she had no document to show the factum of divorce. None of them were eye-witnesses to pronouncement of 'talaq' by Ataur. Amjad Ali, PW 3, deposed that he along with others was present at the time Ataur pronounced 'talaq' but he could not remember the date. He did not name Islam Sk. to be present on the occasion. Islam Sk., PW4, however, testified that Ataur had dissolved his marriage with the opposite party no.1 by pronouncement of 'talaq' about 25 years back. Such evidence had to be considered bearing in mind the testimony of the opposite party no.1 that her marriage with Ataur was never dissolved and that the best evidence was not available since Ataur was no more.
18. It appears that evidence was of such nature that recording a prima facie view about dissolution of marriage between Ataur and the opposite party no.1 would be vulnerable.
19. That apart, even assuming that Ataur had pronounced 'talaq' to the opposite party no.1 in the presence of several people including PW 3, there is nothing on record to establish that there was sufficient reason for Ataur 8 to bring an end to his marriage with the opposite party no. 1. Not only that, there is also no evidence to establish that any attempt to bring about reconciliation between the parties taking the aid of two arbiters was made. It is true that although the opposite party no.1 testified that Ataur had admitted, in course of proceedings under Section 125 of the Code, that his marriage with her had not been dissolved by pronouncement of 'talaq', she had failed to produce any evidence in support thereof, but nothing turns on it. Absence of cogent evidence to establish fulfillment of the two conditions whereafter 'talaq' could be effective not having been placed before the trial Court, no satisfaction, even prima facie, could have been formed that the marriage between Ataur and the opposite party no.1 did not subsist. Therefore, I do not find any reason to hold that the learned Judge of the lower appellate Court was unjustified in making the direction contained in the impugned order.
20. The revisional application stands dismissed without order for costs.
21. In view of the aforesaid order, CAN 5224 of 2010 stand disposed of.
Photostat certified copy of this order may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)