Delhi District Court
Smt. Oma Devi vs The State on 30 November, 2023
IN THE COURT OF VIVEK BENIWAL : LD.
ADMINISTRATIVE CIVIL JUDGE- CUM- ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : SC/32880/16
CIS No. : DLCT03-001218-2016
In the matter of:-
1. Oma Devi,
W/o. Late Madan Lal
2. Girish Kumar,
S/o. Late Madan Lal,
3. Mukesh Kumar,
S/o. Late Madan Lal,
All residents of :-
H.No. 31, NF-Block,
Shastri Nagar,
Delhi-110052.
....Petitioners.
Versus
1. The State.
2. Northern Railway,
through DRM, State Entry Road,
Paharganj, New Delhi-110055.
3. Shanti Devi,
R/o. H.No. 61-D/2, Railway Colony,
Tuglaqabad, New Delhi.
Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 1/17
4. Dapli Devi,
W/o. Late Bhiru Lal,
R/o. H.No. 628, Baba Farid Puri,
West Patel Nagar,
New Delhi.
.....Respondents.
Date of Institution : 21.03.2016
Date of order when reserved : 28.11.2023
Date of order when announced : 30.11.2023
JUDGMENT:
1. The present succession petition has been filed stating that the deceased Madan Lal (hereinafter referred as 'the deceased' for the sake of convenience), who died on 10.11.2013, was the husband of the petitioner No. 1, namely, Oma Devi and father of petitioners No. 2 and 3, namely, Girish Kumar and Mukesh Kumar. Vide order dated 24.05.2016, Smt. Shanti Devi was impleaded as respondent no. 3, who has been contested the present petition claiming herself to be the wife of the deceased. It is averred that the deceased has left behind service dues with respondent no. 2 i.e. Northern Railway as the deceased was working with the said department.
2. After filing of this petition, notice was given to the general public by way of publication in the newspaper 'Vande Matram" dated Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 2/17 06.04.2016, but none has appeared from general public to oppose or contest the present petition.
3. A written statement/objection has been filed on behalf of respondent no. 3, namely, Shanti Devi stating that petitioner has concealed the material facts from the Court. It is averred that on 18.08.1999, the petitioner No. 1 had given her statement in CAW Cell, Sarai Rohilla to the effect that she got re-married and residing with her second husband and as such she has no right to file the present succession case. It is averred that she is the widow of the deceased and no child was born from her wedlock with the deceased. It is averred that petitioner no. 1 and the deceased got married on 15.05.2003 and no child was born from the wedlock of the deceased with petitioner no. 1 and thereafter one female child was adopted by the deceased and Shanti Devii @ Feroz from Rina Das on 22.03.2012. It is averred that the deceased had written a letter to his department i.e. Sr. Section Engineer (Samanya), Northern Railway, D. Shed, Tughlakabad, New Delhi-110044 to the effect that his wife, namely, Shanti Devi and his both sons had deserted him and as such his wife, namely, Shanti Devi and his two sons will not be entitled to get job, pension and PF after his death.
4. Rejoinder has been filed on behalf of the petitioners denying all the averments made in the written statement filed by the respondents. It is reiterated the alleged letter to CAW cell is false and Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 3/17 fabricated one as the petitioner no. 1 is illiterate lady and do not know as to what was compromised before CAW cell. It is contended that in the absence of any decree of divorce, petitioner is the only legally wedded wife of deceased Madan Lal. It is further contended that second marriage with the respondent is void ab-initio and no-nest in the eyes of law as the first wife i.e. petitioner no. 1 is still alive and there was no divorce decree between parties.
5. In order to substantiate their case, petitioner No. 1 examined herself as PW-1. It is reiterated the facts as mentioned in the petition and relied upon the following documents :-
1. Ex. PW-1/1 is the original death certificate of the deceased.
2. Ex. PW-1/2 (OS&R) (Collectively) is the copy of old ration card (Objected to by the Ld. Counsel for the respondent that the document Ex. PW-1/2 may not be read as the same was not filed earlier with the present petition).
3. Ex. PW-1/3 (OS&R) is the copy of voter I card of the deceased Sh. Madan Lal.
4. Ex. PW-1/4 (OS&R) (Collectively) running into three pages are the copies of voter I card of the petitioners namely Smt. Oma Devi, Sh. Girish Kumar and Sh. Mukesh Kumar.
5. Ex. PW-1/5 (OS&R) (Collectively) running into three pages are the copies of Aadhaar card of the petitioners Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 4/17 namely Smt. Oma Devi, Sh. Girish Kumar and Sh. Mukesh Kumar.
6. Ex. PW-1/6 (OS&R) is the copy of certificate of petitioner no. 2.
7. Ex. PW-1/7 (OS&R) is the copy of driving licence of petitioner no. 2.
8. Ex. PW-1/8 to Ex. PW-1/10 (OS&R) are the copies of letters dated 28.10.2014, 03.11.2014 and 03.12.2014 respectively.
6. During her cross-examination, it is stated by PW-1 that she got married with Madan Lal in the year 1984. The deceased was working at Tuklakabad. It is stated by PW-1 that she was living separately from Madan Lal about 2-3 years prior to his death. It is denied the suggestion that she has been living separately from Madan Lal from 1998. It is stated that there was one case was filed by her against Madan Lal qua the maintenance under Section 125 Cr.P.C. It is denied the suggestion that neither filed any complaint with CAW Cell against Madan Lal nor any document with regard to her second marriage dated 18.008.1999 verified on 25.08.1999. It is stated that her son, namely, Mukesh studied at Punjabi Bagh, Delhi. It is stated by PW-1 that she does not know when Madan Lal got second marriage. It is voluntarily stated that she does not know about his second marriage. It is denied the suggestion that Madan Lal got second marriage with Shanti Devi in the year 2003. It is stated by PW-1 that she does not know whether Madan Lal used to stay with Shanti Devi at Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 5/17 Railway Colony since 2003. It is stated by PW-1 that she has been residing at Shastri Nagar, Delhi since 2000. It is stated by PW-1 that she came to know about the death of Madan Lal from his employer. It is stated by PW-1 that Shanti Devi is present in the Court. It is stated by PW-1 that there is no child of Madan Lal and Shanti Devi. It is stated by PW-1 that she met with Shanti Devi at the time of death of Madan Lal. She denied the suggestion that she is not the legally wedded wife of the deceased. It is stated by PW-1 that she has filed family ration card, Ex. PW-1/2 which establish that she is the wife of the deceased Madan Lal. She does not know where deceased Madan Lal used to stay prior to his death. She also does not know whether any house alloted in the name of deceased Madan Lal at Railway Colony, Tuklakabad.
7. On the other hand, respondents examined four witnesses as RW-1 to RW-4.
8. Testimony of the respondent no. 3 has been examined as RW-1 and reiterated the averments made in her written statement. In support of her contention, respondent no. 3 has relied upon the following documents :-
1 Ex. RW-1/1 (OS&R) is the copy of Adoption Deed.
2 Mark B is the copy of letter issued by the deceased to Sr. Section Engineer (Samanya), Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 6/17 Northern Railway, D Shed, Tughlakabad, New Delhi-110044.
3. Mark C is the written submission with Women Cell, PS Sarai Rohilla.
4. Mark D is the letter dated 06.02.2014 issued by the department.
5. Ex. RW-1/5 (OS&R) is the copy of Election I Card of the deceased Madan Lal.
6. De-exhibit Ex. RW-1/6 (OS&R) i.e. the copy of her Election I card as the copy of the same is not on record.
7. Ex. RW-1/7 (OS&R) is the copy of death certificate of the deceased.
8. Ex. RW-1/8 (OS&R) is the copy of office I card of the deceased.
9. Mark E (Collectively running into two pages) is the copy of Marriage affidavit.
10. Ex. RW-1/10 (OS&R) is the copy of medical Card/Family Card issued by the Northern Railway.
9. During her cross-examination, it is stated by RW-1 that the name of her father was Shamsher and her name is Shanti Devi. It is stated by RW-1 that before marriage, her name was Firoz and after married with Madan Lal, her name has been changed to Shanti Devi. It Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 7/17 is stated by RW-1 that she was Muslim before her alleged marriage with Late Sh. Madan Lal. It is stated by RW-1 that she has no document with regard to conversion from Muslim to Hindu. It is voluntarily stated that she has affidavit to this effect. It is stated by RW-1 that she become Hindu only after her marriage with late Sh. Madan Lal. She denied the suggestion that still she is Muslim and that she was not married to deceased Madan Lal.
10. It is stated by RW-1 that when she met with Madan Lal informed her that he already taken divorced with his wife Smt. Oma Devi. It is stated by RW-1 that Madan Lal showed her the documents regarding divorce from Oma Devi from the Mahila Cell. She denied the suggestion that Madan Lal never divorced Oma Devi. It is stated by RW-1 that she was unmarried when she met with Madan Lal. It is stated by RW-1 that her earlier husband Mohd Shafiq already expired when she met with Madan Lal. It is stated by RW-1 that she does not remember the date of death of Mohd. Shafiq. It is stated by RW-1 that she was not divorced from Mohd. Shafiq when he was alive. She denied the suggestion that she was in live in relation with Madan Lal and not his wife.
11. It is stated by RW-1 that she was not aware whether Oma Devi was informed before the Adoption Deed, Ex. RW-1/1. It is stated by RW-1 that there was no requirement of asking her. It is stated by RW-1 that they have taken the child in adoption from one Smt. Reena Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 8/17 Das and Reena Das was not related to them. It is stated by RW-1 that she was known to us through her Bhanja. It is stated by RW-1 that there was no monetary consideration given for the adoption
12. She denied the suggestion that the letter, Mark C is false and obtained under compulsion. She also denied the suggestion that he and her daughter has right in the estate of Late Madan Lal. She denied the suggestion that Smt. Oma Devi is the only legally wedded wife of deceased Madan Lal.
13. RW-2 Arun Kumar, Senior Clerk, DRM, Northern Railway, Delhi exhibited the letter issued by the Assistant Personnel Officer/Settlement furnishing the service dues of Madan Lal. As per the record, an amount of Rs.3,28,548/- towards DCRG; Rs.44,445/- towards GIS; Rs.1,38,701/- towards GPF and Rs.11,698/- towards Leave Encashment is due and the said letter is Ex. RW-2/2. As per service record of Madan Lal, there are certain deduction of Rs.82,476/- towards excess payment and Rs.2,986/- towards 6 days LAP (Leave on average pay) which would be deducted from the payment of DCRG.
14. During cross-examination, it is stated by RW-2 that no such letter, Mark B is lying in the file. It is stated by RW-2 that he does not know where the document Mark B was received. It is stated by RW-2 that the department i.e. Northern Railway has several branches. It is stated by RW-2 that he is not aware about the Ex. RW-1/10.
Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 9/17
15. RW-3 HC Devender Kumar, CAW Cell, Subzi Mandi, Delhi submitted that the old record of Crime Against Women Cell, North District, Delhi upto he year 1999 has already been destroyed vide order dated 31.07.2002, issued by the ACP/Headquarters, North District, Delhi and the certified copy of letter in this regard is Ex. RW-3/1.
16. During cross-examination, it is stated by RW-3 that he was not aware who was posted at Sarai Rohilla, CAW Cell, Delhi in the year 1999.
17. RW-4 Sushil Kumar Bage, Chief Office Suptd., Diesel Shed, Tugalakabad, Delhi exhibited the letter written by Madan Lal addressed to Senior Section Engineer (General) as Ex. RW-4/2.
18. During cross-examination, it is stated by RW-4 that the document Ex. RW-4/2 was placed in the original file of deceased Madan Lal. It is stated by RW-4 that Ex. RW-4/2 is laminated document and laminated after endorsement at point A. It is further submitted that lamination of the document done by the department. It is stated by RW-4 that all the letters sent to Railways by Smt. Oma Devi, Girish Kumar and Madan lal are in the file of deceased Madan Lal maintained by the office. It is voluntarily stated that the original copy of letter sent by Madan Lal (Ex. RW-4/2) to the Railways is available in the file.
Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 10/17
19. No other witness was examined and evidence was closed.
20. The court has heard submissions advanced by ld. counsel for the petitioners as well as the respondents and has perused the record.
21. Ld. Counsel for the petitioner has contended that respondent no.1 is not the legally wedded wife of the deceased as she has failed to prove her marriage with him whereas petitioner no. 1 got married to the deceased in the year 1984. It is also contended that Jyoti is also not the adopted daughter of the deceased. In support of her contentions, petitioner No. 1 exhibited the copy of old family ration card, voter I card of the deceased, voter I card and Aadhar Card of the petitioners, certificate of petitioner no. 2 and driving license of petitioner no. 2 as Ex. PW-1/2 to Ex. PW-1/7 respectively. It is also contended that deceased never divorced the petitioner no. 1 during his life time.
22. Per contra, Ld. Counsel for the respondent Shanti Devi has contended that petitioners had deserted the deceased from inheriting his service dues and remarried with the respondent Shanti Devi during his life time. In support of her contention, she exhibited the documents i.e. copy of death certificate of the deceased, copy of election I card of the deceased and copy of medical card/family card issued by the Northern Railway. respondent no. 3 has also relied upon the document i.e. RW-4/2 which was written by the deceased to the Sr. Section Engineer, Northern Railway whereby deceased deserted the petitioners Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 11/17 from inheriting his service dues and also mentioned that the deceased got married with the respondent no. 3 Shanti Devi and only she is entitled to get his service dues. Respondent has also relied upon Mark C i.e. written submission by the petitioner no.1 to the effect that she had given divorced to the deceased and got remarried with another person. It is averred that no child was born from her wedlock with the deceased. However, they adopted one daughter, namely, Jyoti Kumari on 22.03.2012 from Rina Das wife of Late Sh. Pappu Das. It is stated that previous wife and her children had deserted the deceased. As such, they debarred from inheriting any service dues and the copy of this said letter is Mark B. It is further stated that Oma Devi had given written submission dated 18.08.1999 before the Woman Cell, PS Sarai Rohilla to the effect that she got married again and the same was accepted on 25.08.1999 and the copy of the same is Mark C.
23. 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 Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 12/17 by a regular civil court.
24. In the case of Madhvi Amma Bhawani Amma and Ors.
Vs. Kunjikutty Pillai Meenakshi Pillai and Ors., AIR 2000 Supreme Court 2301, it was held that:-
"sub-sec. (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 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 how could principle of res judicata be made applicable to a case in a subsequent suit?"
25. In the present case, there is no dispute about the factual matrix that deceased was firstly married with petitioner no. 1 and two sons were born out of the wedlock of petitioner no. 1 and the deceased, who are petitioners no.2 and 3. She had proved various documents in support of her contention. Petitioner no. 1 claims to have got married with the deceased in the year 1984 which is not objected by the respondent no. 3 rather respondent no. 3 has categorically admitted that first wife, namely, Oma Devi which clearly shows that petitioner no. 1 is the first wife of the deceased. It is admitted fact that petitioner no. 1 Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 13/17 had filed a case under Section 125 Cr.P.C against the deceased for maintenance. The said case itself proved that petitioner no 1 is the legally wedded wife of the deceased. It is also revealed from the testimonies of the parties that neither respondent has given any suggestion to the petitioner that petitioners no. 2 and 3 are not sons of the deceased nor raised any objection to the effect that petitioners no. 2 and 3 are the sons of the deceased. Hence, it is proved that petitioner no. 1 is the first wife of the deceased and petitioners No. 2 and 3 are the sons of the deceased.
26. The only question is remained to be resolved whether the deceased was divorcee at the time of his marriage with the deceased or whether deceased deserted by the petitioners and petitioner no. 1 got remarried with some one.
27. It is admitted fact that there is no decree of divorce between the petitioner No. 1 and the deceased by the competent court of Law. The fact of first wife of the deceased has also been corroborated by the testimony of the respondent . Hence, the court holds that petitioner no. 1 is the legally wedded wife of deceased. The second marriage of deceased with the respondent no. 3, if any, is null and void. On the other hand, respondent relied upon the letter, Ex. RW-4/2 i.e. letter written by the deceased whereby debarred the petitioners. There is no sanctity of the said documents in the eyes of law as the deceased had not debarred the petitioners according to the law i.e by way of Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 14/17 publication or by filing the appropriate suit. Merely sending a letter to the department is not considered to be debarred.
28. The further contention of the respondent no. 3 is that petitioner no. 1 had given written submission before the CAW Cell to the effect that she got married with the someone and got divorce the deceased. However, the onus to prove the same lies upon the respondent No. 1. Furthermore, neither respondent has led any evidence nor any document to this effect that petitioner no. 1 got remarried was filed by the respondent no.1. Even, respondent has not put any suggestion to the petitioner in this regard. As such, this issue has also been decided against the respondent.
29. So far as the entitlement of adopted daughter of the deceased is concerned, in support of her claim, respondent has exhibited the Adoption Deed. However, the said Adoption Deed has not been proved, as per the section 67 of the Indian Evidence Act. Respondent has not brought any attesting witness of the Adoption Deed. As per Section 11 (vi) of the Hindu Adoptions and Maintenance Act, a child to be adopted must be actually given and taken in adoption by the parents. In the present matter, the petitioner has not proved on record, if any such act of giving in adoption was done. Without performing this actual act of giving in adoption, the petitioner cannot raise a presumption of implied adoption. In these circumstances, Jyoti cannot be held as adopted daughter of the deceased.
Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 15/17
30. It is pertinent to mention here that petitioners has impleaded one Dapli Devi as respondent no. 4 in the present petition. However, the status/relationship of said Dapli Devi with the deceased has not been disclosed by either of the parties. From perusal of Ex. PW-1/2, it is revealed that said Dapli Devi is stated to be the mother of he deceased. As per section 8 of the Hindu Succession Act, the mother of the deceased is also class-I legal heirs of the deceased. As such, Dapli Devi is also entitled to get share in the service dues of the deceased.
31. In view of the aforesaid discussion, there is no impediment for grant of Succession Certificate in favour of petitioners No. 1 to 3, namely, Oma Devi, Girish Kumar and Mukesh Kumar and also in favour of respondent no. 4, namely, Dapli Devi to the extent of 1/4th share each in the service dues of the deceased, in terms of Ex. RW-2/2, as per which the outstanding dues of the deceased were Rs.5,23,392/-. Succession certificate be drawn on deposit of total requisite proportionate court fee of Rs.13,084.80p (Rs.13,085/-) and on furnishing an Indemnity Bond with one surety within 45 days. The department will be entitled to deduct the amount legally recoverable by it from the deceased.
32. Petitioner is also claiming succession Certificate qua family pension of the deceased. However, family pension can not be the subject matter of the proceedings of the present succession petition. Reliance being placed on the judgment of Hon'ble High Court of Delhi Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 16/17 titled as Deputy Director (Horticulture) Vs. Premwati & Ors. (delivered by Hon'ble Mr. Justice R.K. Gauba) (order dated 19.04.2018) (C.R.P. No. 85/2017 & CM Nos. 13031-32/17) File be consigned to Record Room.
Digitally signed by
VIVEK VIVEK BENIWAL
BENIWAL Date: 2023.11.30
16:53:55 +0530
Announced in the open court (VIVEK BENIWAL)
on 30.11.2023. Administrative Civil Judge-cum-
Additional Rent Controller (Central) Delhi.
Petition no. SC/32880/16 Oma Devi & Ors. Vs. State & Ors. 17/17