Delhi District Court
Sh. Gautam Prasad Tiwari vs The State on 28 March, 2017
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE
CUM ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
Presided over by : Sh. Hem Raj
Petition No. : 746/02 (New No. 32754/16)
In the matter of:
Sh. Gautam Prasad Tiwari,
S/o. Late Sh. Gobind Ram Tiwari,
R/o. C6/69, Janta Flats, Sector5,
Rohini, Delhi.
....Petitioners.
Versus
1 The State.
2 Dean, M.A.M.C. College,
Bahadur Shah Zafar Marg,
New Delhi.
.....Respondents.
Date of Institution : 16.10.2002 Date of order when reserved : 28.03.2017 Date of order when announced : 28.03.2017 J U D G M E N T : Petition No. 32754/16 1 The benefits arising out from the service of deceased Sh.
Pardeep Kumar Tiwari, employed with Maulana Azad Medical College, Delhi came up for consideration in the succession petition filed by Sh. Gautam Prasad Tiwari, the brother of the deceased. 2 After filing of this petition, notice of petition was given to the general public by way of publication in the newspaper Vir Arjun' dated 28.08.2003, but none appeared from general public to oppose or contest the present petition.
3 The objector Smt. Roshan Tiwari, claiming herself to be wife of the deceased and her minor daughter Tania Tiwari had filed objections to the petition claiming that the objector Roshan Tiwari has been nominated by the deceased in his service record as wife and Baby Tania Tiwari as daughter. It is further stated that on the birth of Tania Tiwari on 28.08.2002, the department sanctioned paternity leave to deceased from 06.09.1999 to 20.09.1999. Petition No. 32754/16 4 The department also filed the written statement stating that as per the documents available in the department, the deceased had nominated Roshan Tiwari as his wife to receive GPF amount. 5 The petitioner filed reply to the objections of the objector categorically denied that objector Roshan Tiwari and Baby Tania Tiwari are the wife and daughter of the deceased respectively. The petitioner has also filed replication to the written statement of the department.
6 In order to substantiate his case, the petitioner examined herself as PW1, who proved the death certificate of the deceased Sh. Pradeep Kumar Tiwari as Ex. PW1/1 and the copy of legal notice, Ex. PW1/2.
7 During cross examination, PW1 stated that the deceased let out the property bearing no. C61, Rama Park, Uttam Nagar, Delhi to Akhtar Raza, who is the husband of the objector Roshan Tiwari (Vol. The said Akhtar Raza is a cousin of Roshan Tiwari). No marriage was solemnized between objector Roshan Tiwari and the Petition No. 32754/16 deceased. PW Sh. Gautam Prasad Tiwari was recalled for cross examination although he was examined as PW1 as well. He was inadvertently numbered as PW5 during his crossexamination. During cross examination, he stated that he does not know as to whether any application for paternity leave had been filed by the deceased or not. Akhtar Raza is the husband of objector, Roshan Tiwari. Ex. PW4/1 has been filed by him to show that objector was wife of Akhtar Raja.
8 PW2 numbered as PW1 Sh. Joginder Pal, proved the extract copy of Admission and Withdrawal Register of Govt. Boys Sr. Sec. School, Rithala as Ex. PW1/1, Ex. PW1/2 is the certified copy of School Leaving Certificate and Ex. PW1/3 is the certified copy of application for issuance of School Leaving Certificate. The form of application for admission of Shahzada Alam is proved as Ex. PW1/4. 9 PW1 was not crossexamined despite opportunities. 10 PW2 Sh. Kulbir Singh, LDC from Food and Supply Office, proved Master Register of ration card as Ex. PW2/1. He was Petition No. 32754/16 also not crossexamined.
11 PW3 Sh. Santosh Yadav, deposed that he knew Smt. Roshan Ara, who was residing in his neighbourhood and she had two sons and one daughter namely Reshma. Ms. Reshma was studying with his daughter Bhawana in the MCD School, Rohini. He was also not crossexamined despite opportunity.
12 PW4 Smt. Savitri Devi, UDC from Food Supply Office, Raje Pur, Sector9, Rohini, Delhi, proved Electoral Roll, Ex. PW4/1, for the year 1998 which shows that the names mentioned at serial no. 226 and 227 are namely Sh. Akhtar Raja S/o. Mohd. Muslim and Roshan Ara W/o. Sh. Akhtar Raja. She was also not crossexamined despite opportunity.
13 On the other hand, in order to substantiate her case, objector Roshan Tiwar examined following witnesses : 14 RW1 Sh. Sunil Gupta, UDC from Maulana Azad Institute of Dental Sciences, who proved nomination form of PF as Ex. RW 1/1; Attestation Form Ex. RW1/2; copy of leave record as Ex. RW Petition No. 32754/16 1/3 and certified copy of review order of CAT Ex. RW1/4. He was not crossexamined.
15 OW2 Objector Roshan Tiwari herself examined who proved the documents Ex. O2W2/1. Ex. O2W2/10 and Ex. O2W2/11 have already been exhibited in the statement of the official from Maulana Azad Medical College as Ex. RW1/1 and Ex. RW1/2. Ex. O2W2/16 i.e. the discharged Slip from LNJP, Ex. O2W2/17 i.e. the birth certificate of objector No. 2 and Ex. O2W2/18 i.e. the Survival Certificate issued by SDM (Patel Nagar, Delhi.
16 During cross examination, OW2 stated that the name of her mother is Mehar Bano and the name of his father is Mohd. Nizamuudin. Her native place is situated at Calcutta. She studied till 8th class from Open School, Hindi Vidhyapeeth, Devdhar Nr. Shiv Ganga, Jharkhand. She remained at Jharkhand in the year 1994. She denied the suggestion that Akhtar Raza is her husband. Shahzad Alam, Shabe Alam and Reshma are her nephews. Documents already exhibited as Ex. PW1/3, Ex. PW1/4, Ex. PW1/1 and Ex. PW1/2 Petition No. 32754/16 these are the Govt. School Certificate of Shahzada Alam in which the name of her father has been mentioned as Akhtar Raza and mother's name is Roshan Ara (Vol. Roshan Aara is the guardian of Shahzada Alam). Before her marriage, she belongs to Muslim community. She does not have any documentary proof to show that she has changed her religion. At present, she is Hindu by religion. She had become Hindu, as per desire of her husband and had given written request regarding updation of her religion in various institution including bank. She does not know about any other procedures followed for change of her religion. Ex. PW4/1 is the electoral roll, 1998 (U5), Delhi at Serial No. 226 and 227 mentioned Akhtar Raza and Roshan Aara as husband and wife (Vol. Akhtar Raza is her father). After her marriage, she does not know where Akhtar Raja was residing. She is residing with her daughter Tanya Tiwari. She does not know the name of Temple where her marriage was performed. She got married at her residence by offering Chunni to her. She was told by her husband that as per the customs prevailing in the family, there is no need for Petition No. 32754/16 performing Saptpadi ceremony. He also applied vermilion on her forehead. No photographs were taken at the time of her marriage. Her parents, brother and sisters and other relatives were not present at the time of her marriage. She was present at the last rites ceremonies of the deceased. She does not know who performed the last rites of the deceased. She had mentioned about pendency of the present petition in the litigation pending before CAT.
17 OW3 Sh. Kuldeep Mehta numbered as OW4, deposed that he is the old patient of the deceased. The deceased and the objector used to live as husband and wife. Moreover, Pradeep Tiwari introduced the objector to him as his wife. A female child was also born to her and deceased Pradeep Tiwari and he was called on the occasion of her Namkaran Sanskar in their house. He could not say whether the deceased let out his residence to Roshan Ara. The deceased has one daughter namely Tanya Tiwari. He had attended the ceremony held by Dr. Tiwari and Roshan Tiwari after birth of their daughter Tanya Tiwari.
Petition No. 32754/16 18 During cross examination, he does not attend the marriage of Dr. Tiwari with Roshan Tiwari. Dr. Tiwari had one daughter namely Tanya Tiwari. He had attended the ceremony held by Dr. Tiwari and Roshan Tiwari after birth of their daughter Tanya Tiwari. 19 I have heard the submissions advanced by Ld. Counsel for the parties and has perused the record.
20 It is contended by Ld. Counsel for petitioner that respondents namely Roshan Tiwari and Baby Tanya Tiwari are not the widow and daughter of the deceased respectively. Besides the petitioner, the deceased has left behind Smt. Rajani Gauda and Smt. Rekha Dutta being his sisters are the only legal heirs of the deceased. Except them, there is no other legal heirs left behind by the deceased. The deceased was bachelor. Objector is a Muslim lady having three children from one Shri Akhtar Raza with malafide intention wants to grab the property of the deceased. Objector with collusion of some employees of the department has manipulated her name as Roshan Tiwari and claimed that she has also one daughter namely Ms. Tanya Petition No. 32754/16 Tiwari which is a fabricated and false document. Petitioner proved Ex. PW1/1 i.e. the original death certificate of the deceased and Ex. PW1/2 is the legal notice dated 08.10.2002; Ex. PW1/1 to Ex. PW 1/3 i.e. the school records of the Shahjada Alam S/o. Sh. Akhtar Raza. Ex. PW1/2 i.e. the Master Register of ration card having registration no. 2221 on 20.06.2002; Ex. PW4/1 is the certified copy of electoral roll.
21 On the other hand, Ld. counsel for the objectors, Smt. Roshan Tiwari and Baby Tanya Tiwari has contended that the objectors are the only classI legal heirs of the deceased being his wife and daughter respectively. The deceased had nominated objector no. 1 Ms. Roshan Tiwari being his wife. The deceased had a ration card at residence of C61/A, Rama Park, Uttam Nagar, New Delhi. The deceased applied for paternity leave as his daughter was born on 29.08.2002 in LNJP Hospital. A Survival Member Certificate has been issued by the SDM, Patel Nagar showing objectors no. 1 and 2 as surviving members of Late Pradeep Kumar Tiwari. Objector proved Petition No. 32754/16 documents Ex. RW1/1 i.e. the copy of nomination with regard to PF; Ex, RW1/2 i.e. the attestation form; Ex. RW1/3 i.e. the copy of leave record in service book, Ex. RW1/4 is the certified copy of review order of CAT; Mark A to Mark D are the copies of birth certificate of Pradeep with Roshan, ration card, Surviving Member Certificate and CAT Order. Objector also proved documents O2W2/1 (Collectively) i.e. the photos taken on various festivals and occasions; Mark O2W2/A to Mark O2/W2/G are the copies of correspondence with the department; Ex. O2W2/9 is the copy of ration card; Ex. O2W2/16 i.e. the Discharged slip issued from LNJP; Ex. O1W1/17 i.e. the birth certificate of objector No. 2 and Ex. O2W2/18 is the Survival Member Certificate issued by SDM (Patel Nagar), Delhi. The department had already been released the service dues of the deceased on the directions of the CAT vide its order dated 22.07.2004 on OA/2004 and she got job on compassionate ground. The petitioner has never challenged the said order and the said order has already attained majority.
Petition No. 32754/16 22 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 a person 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 secondly if the question of law and fact are intricate Petition No. 32754/16 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."
23 In her cross examination, OW2 Smt. Roshan Tiwari admitted that initially she belonged to Muslim community. Ex. PW 1/3 and Ex. PW1/4 bears the signatures of Smt. Roshan Ara, who is stated to be the Guardian of Shahzada Alam. Objector in her cross examination, categorically admitted that she does not have any documentary proof to show that she had changed her religion. Neither objector has disclosed the name of the Temple nor date of her marriage with the deceased. She has not proved on record as to whether any customs prevailing in the family of the deceased, there is no need for performing Saptpadi ceremony. She admitted that Saptpadi ceremony was not performed in her marriage. She has admitted during her cross examination that Akhtar Raza is her cousin Petition No. 32754/16 and on other occasion she admitted that Akhtar Raza is her father. She admitted that she was residing at C5/145, Sector5, Rohini, Delhi at about 4 years. So far as the claim of the objector Ms. Roshan Tiwari is concerned, the court is of the considered view that a nominee is only entitled to receive debts and securities of the deceased. Nomination can not over ride the law of succession. Reference can be made to decisions rendered by Hon'ble Supreme Court in the cases of Vishin N. Khanchandani Vs. Vidhya Lachmandass Khanchandani AIR 2000 SC 2747 and Sarbati Devi Vs. Usha Devi AIR 1984 SC 346. Ex. PW2/1 i.e. the Master Register of ration card in respect of C 61/A, Rama Park in which the name of deceased and the objectors have been mentioned. In Ex. O2W2/9, Ex. O2W2/17 and Ex. O2W2/18 clearly mentioned Tania Tiwari is the daughter of the deceased. As per Section 16 of Hindu Marriage Act, 1955, children born out of null and void marriage are also entitled to share in the property of their parents. It is established on the record that Tania Tiwari is the daughter of the deceased Pradeep Kumar Tiwari. Petition No. 32754/16 Objector Roshan Tiwari will not be entitled to any share in the dues of deceased as there is no material on the record to prove that she was married to the deceased. The evidence of the objector, especially her crossexamination would show the same and there is no other conclusion can be arrived at.
24 Legal proposition in the present case is that petitioner is claiming succession certificate being brother of the deceased whereas objector Tania Tiwari is successfully established that she is the daughter of the deceased, who is in higher category of legal heirs then the petitioner, in view of Section 8 of the Hindu Succession Act r/w schedule of legal heirs. In view of the aforesaid discussions, the petitioner is not entitled to get any share in the service dues of the deceased.
25 Therefore, the court is of the considered opinion that there is no impediment for the grant of Succession Certificate in favour of objector Tania Tiwari qua the service dues of deceased namely Sh. Pradeep Kumar Tiwari. Accordingly, a Succession Certificate be Petition No. 32754/16 issued in favour of objector Tania Tiwari qua the service dues of deceased namely Sh. Pradeep Kumar Tiwari. The department will be at liberty to take steps in terms of the judgment.
File be consigned to Record Room.
Announced in the open court (HEM RAJ )
on 28.03.2017 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
Petition No. 32754/16
SC/32754/16
28.03.2017
Present : None.
Vide separate judgment of even date, it is held that there is primafacie no impediment for grant of Succession Certificate in favour of objector Tania Tiwari qua the service dues of deceased namely Sh. Pradeep Kumar Tiwari. Accordingly, a Succession Certificate be issued in favour of objector Tania Tiwari qua the service dues of deceased namely Sh. Pradeep Kumar Tiwari. The department will be at liberty to take steps in terms of the judgment.
File be consigned to Record Room.
(Hem Raj) ACJcumARC (Central) Delhi/28.03.2017 Petition No. 32754/16 Petition No. 32754/16