Delhi District Court
Smt. Heera Devi @ Heera Negi vs The State & Others on 31 March, 2015
IN THE COURT OF SHRI SANDEEP GARG :
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Petition No. : 44/2013
Unique ID No : 02401C0303082012
In the matter of:
Smt. Heera Devi @ Heera Negi
W/o. Late Sh. Diwan Singh,
R/o. H.No. 762, TypeI, Gulabi Bagh,
Delhi110007.
....Petitioner.
Versus
The State & Others.
.....Respondents.
Date of Institution : 08.06.2012
Date of order when reserved : 31.03.2015
Date of order when announced : 31.03.2015
J U D G M E N T :
1 The present succession petition has been filed by the Petitioner namely Smt. Heera Devi @ Heera Negi for grant of Succession Certificate in her favour qua the debts and securities left by Sh. Diwan Singh, who expired on 09.10.2011 at Delhi, claiming that the deceased was her husband.
Petition no. 44/13 2 After filing of this petition, notice of filing of this petition was given to the general public by way of publication in the newspaper 'Mahamedha' dated 25.08.2012, but none has appeared from general public to oppose or contest the present petition. 3 Respondent no. 2 namely Smt. Nandi Devi filed objections claiming herself to be mother of deceased Sh. Diwan Singh. It has been averred that the petitioner had already withdrawn the service benefit from the department and she had cooperated at that time as per their settlement. As per family settlement, arrived between the parties, it was agreed that all the services benefits except EPF and PF shall fall into the share of the petitioner while respondent no. 2 would be entitled to get the entire EPF amount from the employer of deceased Diwan Singh. She is entitled to get the entire EPF/PF amount of the deceased, which is apparent from letter dated 09.01.2012 issued by the employer of the deceased Diwan Singh. The deceased had nominated her for receiving the amount of Employees' Provident Fund. Moreover, in view of the settlement arrived between her and the petitioner, she is entitled to get the entire EPF amount. 4 Petitioner filed her replication/rejoinder denying all the averments made by respondent no. 2 Smt. Nandi Devi. She has Petition no. 44/13 admitted that she has received the service benefits of her deceased husband, but the EPF amount is still due to her.
5 Written submissions were filed on behalf of the Regional Provident Fund Commissioner, Delhi (North) wherein it has been averred that the amount of Provident fund of Rs.1,11,690/ ( on account of Employee's Share) and Rs.33,865/ (on account of Employer Share) including upto date interest upto the date as on 31.03.2013 is available in the PF A/c. No. DL/11396/152 in respect of deceased member Diwan Singh. The interest on the said amount will be calculated at the time of settlement of PF Claims. The amount of Employees Deposit Linked Insurance Scheme benefits will be calculated and released in accordance with the provisions of EDLI'1976. As per record, no such nomination Form in respect of Diwan Singh had been received by the department. It had received an endorsement copy of letter dated 10.12.2014 alongwith xerox copy of letter no. F.3(7)/Acctts./PAD/9697/535659 dated 22.11.1996 addressed to RPFC, Inderlok, Delhi. The said letter dated 22.11.1996 had never been received by its office. No acknowledgement has been placed on record by employer of the deceased. Moreover, a nomination or its modification will take effect on the date on which it Petition no. 44/13 is received by the Regional Provident Fund Commissioner as per rule 61 (6) of the EPF Scheme, 1952.
6 Additional written submissions were also filed on behalf of Regional Provident Fund Commissioner, Delhi (North) wherein it has been averred that as per family details of deceased, the family pension under Employees Pension Scheme 1995 is calculated @ Rs.2051/ p.m. in favour of the petitioner namely Smt. Heera Devi and the children pension under EPS'95 is also payable @ Rs.513/ p.m. (Approx.) subject to the attainment of age of 25 years. Accordingly, a sum of Rs.60,915/ on account of family pension and Rs.15,936/ on account of children pension is payable on account of arrear for the period w.e.f. 10.10.2011 to 31.03.2014. As per family details available in respect of the deceased member Sh. Diwan Singh with the office, Smt. Heera Devi is entitled for getting Employees Deposit Life Insurance 1976 benefits in accordance with the provisions of EDLI'76, amounting to Rs.1,30,000/ (Maximum).
7 PW1 Sh. Reman Singh Negi, LDC from Punjabi Academy, DDA Community Centre, Paharganj, Delhi deposed that as per record, the amount of Leave Encashment and Gratuity had already been released to Smt. Heera Devi. The other dues are lying with Petition no. 44/13 Employees Provident Fund Organization, Delhi.
8 In order to substantiate her case, the petitioner herself deposed as PW2. She stated that deceased Sh. Diwan Singh was her husband. He expired on 09.10.2011 at Delhi and his death certificate is Ex. PW2/1. The deceased was divorcee. The certified copy of decree of divorce of the deceased with Smt. Hansi Devi is Ex. PW2/2. After divorce, she got married with the deceased Sh. Diwan Singh and out of this wedlock, two children namely Vans Negi and Baby Janvi Negi, who are respondents no. 3 and 4 in this petition were born. The deceased has also left behind his mother namely Smt. Nandi Devi, who is respondent no. 2 in the present petition. Her children namely Vans Negi and Baby Janvi Negi are also residing with her. The deceased was working with Punjabi Academy, Delhi. She has already received the amount of Rs.2,79,752/ towards Leave Encashment and Gratuity from the employer of the deceased i.e. Punjabi Academy, Delhi, the relevant document is Ex. PW1/1. The deceased has also left behind Provident Funds with Regional Provident Fund Commissioner, Delhi (North). The written submissions filed by the Regional Provident Fund Commissioner, Delhi are Ex. PW2/3. The deceased did not execute any Will during his life time. The deceased was ordinarily a Petition no. 44/13 resident of Delhi.
9 In her cross examination, PW2 stated that she had already received a sum of Rs.2,79,752/ towards Gratuity and Leave Encashment of her deceased husband. There was no agreement/mutual understanding between her and respondent no. 2 Smt. Nandi Devi to the effect that she will receive the amount of Gratuity and Leave Encashment and shall not claim the amount of PF/EPF of the deceased. She admitted that in getting the aforesaid amount released, her mother in law i.e. respondent no. 2 Smt. Nandi Devi had cooperated with her.
10 CW1 Sh. Abhishek Kumar, Social Security Assistant from office of Assistant Provident Fund Commissioner (Current Charge) proved the written statement Ex. CW1/A furnishing the outstanding dues of deceased Diwan Singh, as per which the amount of Provident Fund is Rs.1,11,690/ and the employer share is Rs.33,865/ in PF Account No. DL/11396/152. A reply issued by the Assistant P.F. Commissioner, Delhi furnishing the amount of family pension and EDLI, is Ex. CW1/B (Collectively).
11 The court has heard submissions advanced by ld. counsel for the parties and has perused the record.
Petition no. 44/13 12 Ld. counsel for the petitioner has argued that after taking divorce, the deceased was got married with the deceased and out of this wedlock, two children namely Vans Negi and Baby Janvi Negi were born. The petitioner has already received an amount of Rs. 2,79,752/ towards Leave Encashment and Gratuity from the employer of the deceased i.e. Punjabi Academy, Delhi. No family settlement was arrived at with respondent no. 2. Petitioner and her children are entitled to get the family pension and EDLI as per law. 13 On the other hand, LAC for respondent no. 2 Smt. Nandi Devi has contended that a family settlement was arrived at between the petitioner and respondent no. 2 in pursuance to which respondent no. 2 had cooperated with the petitioner for getting the amount of Rs. 2,79,752/ towards Leave Encashment and Gratuity released. Petitioner had agreed that respondent no. 2 will be solely entitled to get the balance amount. Admittedly, the employer of son of respondent no. 2 i.e. Punjabi Academy had also written letters dated 09.01.2012 and 10.12.2014 wherein it is stated that the deceased had nominated respondent no. 2 and Smt. Hansi Negi (former wife) for receiving amount of EPF and death in service benefits. If letter dated 22.11.1996 was not received in the office of RPFC, respondent no. 2 is Petition no. 44/13 not at fault and she can not be deprived of her right to receive service benefits of her son. Respondent no. 2 is entitled to grant of Succession Certificate qua the service dues of deceased Sh. Diwan Singh being the nominee of the deceased.
14 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, Petition no. 44/13 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 the principle of res judicata cannot be made applicable."
15 As per the provisions of para 61(6) of the Employees' Provident Fund Scheme 1952, "a nomination or its modification shall taken effect to the extent that it is valid on the date on which it is received by the Commissioner". In the present case, as per the reply filed by APF Commissioner on 05.02.2015, letter no. F. 3(7)/Acctts./PAD/9697/535659 dated 22.11.1996 addressed to RPFC, Inderlok, Delhi was never been received by its office. No acknowledgement has been placed on record by employer of the deceased. No such nomination in Form no. 2 in respect of the deceased member Sh. Diwan Singh as well as the other 61 employees were Petition no. 44/13 received by its office. Therefore, no valid nomination in favour of respondent no. 2 and Smt. Hansi Negi had taken place. 16 In the present petition, the relationship between the parties is not disputed that the petitioner got married with the deceased after taking divorce from his earlier wife. No child was born from the wedlock of the deceased with his earlier wife. However, as per section 8 of Hindu Succession Act, petitioner, respondent no. 2 Smt. Nandi Devi and respondents no. 3 and 4 namely Vans Negi and Baby Janvi being the children of the deceased are all entitled equal shares i.e. 1/4th share each in the service benefits of the deceased Sh. Diwan Singh, being classI legal heirs. It is admitted by the petitioner herself that she has already received an amount of Rs.2,79,752/ towards Gratuity and Leave Encashment. Therefore, the court holds that there is no impediment for grant of Succession Certificate in favour of petitioner Smt. Heera Devi and respondents no. 2 to 4 namely Smt. Nandi Devi, Vans Negi and Baby Janvi Negi to the extent of 1/4th share each in respect of the service dues of deceased namely Sh. Diwan Singh. Accordingly, a Succession Certificate be issued in favour of petitioner Smt. Heera Devi and respondents no. 2 to 4 namely Smt. Nandi Devi, Vansh Negi and Baby Janvi Negi to the extent of 1/4th share each in Petition no. 44/13 respect of the service dues of deceased namely Sh. Diwan Singh, in terms of Ex. CW1/A and Ex. CW1/B. It is clarified that the office of RPF Commissioner shall deduct Rs. 2,79,752/ while computing the shares of petitioner and respondents no. 3 and 4 as the said amount has already been released to the petitioner who is also natural guardian of respondents no. 3 and 4 Ms. Vansh Negi and Baby Janvi Negi. Succession Certificate be drawn on deposit of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.
File be consigned to Record Room.
Announced in the open court (SANDEEP GARG)
on 31.03.2015 Administrative Civil JudgeCum
Additional Rent Controller (Central)
Delhi
Petition no. 44/13
44/13
31.03.2015
Present : Sh. Kalu Singh, Ld. Counsel for petitioner with petitioner in
person.
Ms. Mamta Rani, LAC for respondent no. 2 with son in law of respondent no. 2 in person.
Final arguments heard.
Vide separate judgment of even date, Succession Certificate is issued in favour of petitioner Smt. Heera Devi and respondents no. 2 to 4 namely Smt. Nandi Devi, Vans Negi and Baby Janvi Negi to the extent of 1/4th share each in respect of the service dues of deceased namely Sh. Diwan Singh. Accordingly, a Succession Certificate be issued in favour of petitioner Smt. Heera Devi and respondents no. 2 to 4 namely Smt. Nandi Devi, Vansh Negi and Baby Janvi Negi to the extent of 1/4th share each in respect of the service dues of deceased namely Sh. Diwan Singh, in terms of Ex. CW1/A and Ex. CW1/B. It is clarified that the office of RPF Commissioner shall deduct Rs. 2,79,752/ while computing the shares of petitioner and respondents no. 3 and 4 as the said amount has already been released to the petitioner who is also natural guardian of respondents no. 3 and 4 Ms. Vansh Negi and Baby Janvi Negi. Succession Certificate be drawn on deposit of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.
Petition no. 44/13
File be consigned to Record Room.
(Sandeep Garg) ACJ/ARC (Central) Delhi/31.03.2015 Petition no. 44/13