Gauhati High Court
Putuli Begum & Ors vs Rehana Begum on 27 April, 2012
Equivalent citations: AIR 2012 GAUHATI 124, (2013) 2 MARRILJ 853 (2012) 6 GAU LR 91, (2012) 6 GAU LR 91
Author: Anima Hazarika
Bench: Anima Hazarika
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
INTESTATE CASE NO. 7/2008
1. SMT. PUTULI BEGUM
WIFE OF LATE KUTUB ALI
2. MD. MUKUT ALI
3. MD. MUKTAR ALI
4. MD. RAHIM ALI
5. MD. KAHINOOR ALI
No. 2 to 5 are the sons of Late Kutub Ali and 1 to 5 are
all the residents of East Jyotinagar P.S. Noonmati,
Guwahati, in the district of Kamrup, Assam.
....Appellants
-Versus-
SMT. REHANA BEGUM
R/O. East Jyoti Nagar, P.O: Bamunimaidan
P.S. Noonmati, Guwahati.
OR
Permanent resident of
Village Belbari, Sarukhetri Mouza
PO: Barkapla
P.S. Sarthebari, Dist: Barpeta, Assam.
.....Respondent
PRESENT THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA Advocate for the Appellants : Mr. S Dutta Advocates for the Respondent : Mr. B Islam Mr. B Hussain Mr. PB Mazumdar Date of hearing : 15.03.2012 Date of Judgment : 27.04.2012 2 JUDGMENT AND ORDER Challenge in this appeal is made under Section 384 of the Indian Succession Act 1925 against the order dated 15.07.2006 passed in Succession Revocation Misc. (J) Case No. 2 of 2002 whereby and whereunder the learned Ad-hoc Additional District Judge, Guwahati has revoked the Succession Certificate being No. 138 of 1999 issued in favour of the appellants on 11.05.1999 in S.C. Case No.167/1999 on the application filed by the respondent herein under Section 383 of the Indian Succession Act 1925 (in short „the Act‟ only).
2. The material facts leading to the issuance of Succession Certificate and its revocation made subsequently is summarized hereinbelow:-
The appellants herein had applied for issuance of Succession Certificate in the Court of District Judge, Guwahati on the demise of her husband Kutub Ali in respect of the receivable assets. Kutub Ali expired on 24.12.1997 leaving behind the appellants who was a Government servant in Brahmaputra Flood Control Board at Guwahati and Intest Case No.7/2008 Page 2 of 16 3 accordingly the learned District Judge issued a Succession Certificate on 11.05.1999 in the Succession Case No. 167/1999 in respect of GPF, revised arrear pay, leave salary and revised gratuity amounting to Rs.37,973/- in total.
3. On knowing the Succession Certificate issued in favour of the appellants by the learned District Judge, one Rehana Begum, the respondent herein filed an application under Section 383 of the Act contending inter alia that the certificate was obtained fraudulently by making of a false suggestion and by concealment from the court of something material to the case and accordingly prayed for revocation of the Succession Certificate granted in favour of the appellants being S.C. No. 138 of 1999.
4. The said application for revocation of Succession Certificate was numbered and registered as Misc. (J) Case No. 2 of 2002. The case however was transferred to the Court of Ad-hoc Additional District Judge, Kamrup at Guwahati for final adjudication and the respondent herein Intest Case No.7/2008 Page 3 of 16 4 has also filed an application for granting Succession Certificate in her name which was registered as S.C. Case No. 167 of 1999.
5. On receipt of the notice, the appellant entered appearance and contested the case by filing the written statement denying the allegations made in the revocation application contending inter alia that she is the legally married wife of Kutub Ali, since deceased and the respondent is not the wife of late Kutub Ali. She had further contended that the Succession Certificate issued in her favour was not obtained by fraudulent means and/or in suppression of facts as alleged and hence prayed for dismissal of the case being Misc. (J) Case No. 2/2002.
6. In order to prove the case of the contesting parties, the respondent herein has examined herself and another witness and exhibited 8 (eight) number of documents, whereas the appellants examined themselves along with one Intest Case No.7/2008 Page 4 of 16 5 witness to dislodge the claim of the respondent. The learned court upon perusal of the pleadings, including the evidence on record and upon hearing the parties at length, revoked the Succession Certificate vide order dated 15.07.2006 being Succession Certificate No. 138 of 1999 which is under challenge before the court in the instant appeal.
7. Heard Mr. Surajit Dutta, learned counsel appearing for the appellants. Also heard Mr. B Islam, learned counsel appearing for the respondent.
8. Opening the argument on behalf of the appellants Mr. Dutta, learned counsel would contend that the factum of marriage with the deceased Kutub Ali with the respondent though denied by the appellant, the respondent has failed to adduce supporting evidence which in itself is an erroneous finding when the rule of evidence demands that the burden of proof rests on the party who asserts his/her right and there being no evidence, the order under challenge requires Intest Case No.7/2008 Page 5 of 16 6 interference, more so, when marking of a document as exhibit does not dispense with the proof which is lacking in the finding of the learned trial court. In this connection, Mr. Dutta has referred to a decision of this Court in Camrus Zaman Ghafoor Pariat Vs. Union of India and Ors. reported in 2011 (1) GLT 33.
9. Mr. Dutta has further contended that the Succession Certificate alleged to have been fraudulently obtained by concealment of material facts has not been proved as required under the Act and the inference drawn from the documents though have not been proved by the persons who have issued the same and as such the inference drawn by the learned court below relying upon those documents is bad and hence the impugned order dated 15.07.2006 passed in Misc. (J) Case No. 2/2002 is required to be interfered with under Section 384 of the Act.
10. On the otherhand, Mr. B Islam, learned counsel representing the respondent would contend that the factum Intest Case No.7/2008 Page 6 of 16 7 of marriage along with the document exhibited and proved would show that the respondent is the legally married wife of Late Kutub Ali, more so, when the DW 2 supported the case of the respondent. Learned counsel has further submitted that as no objection had been raised when the documents were exhibited, the admissibility of those exhibits could not be challenged afterwards. Reference has been made in this connection to the decision reported in (1988) 1 GLR 76 (Sri Biharilal Agarwalla and Another Vs. Sri Tamizul Haque, wherein this Court while relying upon decisions reported in 33 IC 188 Uppara Hanumantha Vs. Peddapalla Samarcharlu and AIR 1972 SC 608 PC Puroshottama Vs. S Perumal, has held admissibility of a document cannot be challenged if it has been exhibited without objection.
Admittedly, the documents were exhibited in this case without any objection from the opposite parties. The learned counsel, therefore, has submitted that the impugned order do not require to be interfered with in the facts and circumstances of the case.
Intest Case No.7/2008 Page 7 of 16 8
11. Heard the learned counsel for the parties at length. Perused the pleadings of the parties including the evidence on record. The court is now required to answer as to whether the learned trial court was justified in revoking the succession certificate on the material placed before the court. In order to determine the questions, the provisions of Section 383 of the Act is relevant to show as to whether the respondent has made out a case for revocation of Succession Certificate in the instant case vis-à-vis whether the Succession Certificate has been obtained fraudulently and/or by concealment of facts.
12. Section 383 of the Act provides that a certificate granted may be revoked for any of the following causes, viz.: -
"a. That the proceedings to obtain the certificate were defective in substance;
b. That the certificate was obtained fraudulently by the making of a false suggestion or by the concealment from the court of something material to the case;Intest Case No.7/2008 Page 8 of 16 9
c. That the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
d. That the certificate has become useless and inoperative through circumstances;
e. That a decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked."
13. The pleaded facts averred and established is that the respondent was married with the deceased Kutub Ali on 15.10.1979 as per Muslim law and Shariat and performed the marriage in the office of Sadar Kazi, Muslim Marriage and Divorce Registration, Nalbari, Assam in presence of witness and the marriage certificate is produced vide Ext-
1. After marriage, she lived with the deceased Kutub Ali at his native village Belbari and she was with the deceased at his place of posting at Tezpur and Guwahati also. The Intest Case No.7/2008 Page 9 of 16 10 deceased was a government servant working as w/c labourer in the office of Flood Control, Tezpur and subsequently he was appointed as Office Peon on 28.10.1983 in the office of the Executive Engineer, Tezpur and again he was transferred to Guwahati to the office of the Executive Engineer, East E&D Division in 1985 and was staying in the house of Nagen Goswami, Executive Engineer at East Jyoti Nagar where he died on 24.12.1997 and the deceased had also left some valuable documents in her hand which were produced by her, such as Service Identity Card of the deceased vide Ext-4, appointment letter of the deceased dated 31.03.1982 vide Ext-5 and the appointment letter dated 28.10.1983 vide Ext-6. She has also produced certain documentary evidence in support of her claim to be a legal heir of the deceased. She has produced the legal heir certificate issued by the DC, Barpeta vide Ext-3 including certified copy of voter list of village Belbari vide Ext-2, along with two other certificates issued by local Gaonburah and the village Unnayan Samittee of village Belbari vide Ext 7 and 8 respectively.
Intest Case No.7/2008 Page 10 of 16 11
14. The respondent herein was examined as PW 1 during the trial and her testimony is supported by the documentary evidence particularly the Marriage certificate marked as Ext. 1 coupled with Ext. 2 and Ext. 3 i.e. the voter list and the legal heir certificate. In support of her claim she has brought another witness viz. PW 2 Shri Mahendra Deka who is the Goanburah of village Belbari who has categorically deposed that the respondent is the legally married wife of the deceased who lived with the deceased at his native village as husband and wife and accordingly he issued a certificate describing the family members of the deceased Kutub Ali vide Ext. 7 whereupon Ext. 7(1) is his signature.
15. On the other hand to counter the claim, the appellant Putuli Begum has examined herself as DW 1 who stated that she is the legally married wife of the deceased who died on 24.12.1997 at her residence at East Jyoti Nagar, Noonmati leaving behind the legal heirs of the deceased viz. the appellants, Md. Mukul Ali, Md. Muktar Ali, Md. Rahim Ali and Md. Kohinoor Ali and denied to have married the Intest Case No.7/2008 Page 11 of 16 12 respondent Rehana Begum by the deceased and contended that she has no locus to claim the property of the deceased and denied to have suppressed anything while obtaining the succession certificate in her favour being S/C No. 138/99 and in her cross-examination she has categorically stated that she did not know Rehana Begum and saw her for the first time in the Court i.e., at the time of cross-examination on 30.06.2004.
16. The appellant has examined Hazrat Ali as DW-2 the elder brother of the deceased Kutub Ali who has stated that he knew both the parties and his brother died on 24.07.1997 leaving behind the appellants and the deceased had no other wife except the appellant Putuli Begum. The DW 2 in his examination-in-chief has stated that he knows both the appellant and the respondent. But the said DW-2, in cross-examination has stated that he does not know the respondent Rehana Begum, which shows that DW 2 Hazrat Ali has contradicted himself and therefore cannot be relied upon, whereas, the document marked as Exts.1 to 8 are Intest Case No.7/2008 Page 12 of 16 13 sufficient information to prove that Rehana Begum the respondent was the legally married wife of the deceased and she had been leaving with the deceased as husband and wife.
17. In Camrus Zaman (supra), the case referred to and relied upon by the learned counsel for the appellant, this Court held at Paragraph 18 as thus:-
"18: It is not the case of any party that originals of Paper Marks A to I is in the possession of the plaintiff. None of these documents have been admitted by the Plaintiff against whom these are sought to be proved. It is also not the case of the Defendants that the originals had been destroyed or lost or can not be produced for any reason enumerated in Section 65(C). The Defendants also have not raised any plea that the originals are not easily removable or they are Public Documents within the meaning of Section 74 of the Indian Evidence Act. In case they were Public Documents, the copies thereof have to be certified by a Public Officer having custody of the said Public Documents. There is no evidence on record that these Paper Marks conform to the test of law prescribed under Section 76, 77 and 78 of the Indian Evidence Act. There is also no material on record to presume the genuineness of these documents which are admittedly mere copies in the absence of the proof that they were Intest Case No.7/2008 Page 13 of 16 14 duly certified by an officer of the Central Government who is duly authorized thereto by the Central Government. In the absence of the above requisites the Paper Marks A to I cannot be taken into consideration by any Court of Law. The learned trial Court in my considered view had rightly held that "it is incumbent upon the Defendants to prove their case by producing original documents which is admissible as primary evidence." In the absence of any evidence admissible under law the trial Court rightly discard the defendant‟s case. However, the first appellate Court in total disregard of the aforesaid cardinal principles of law regarding documentary evidence reversed the findings of the trial Court solely relying on the contents of the Paper Mark documents produced by the Defendants inspite of the fact that none of these documents were admissible in evidence and they were not even exhibited or marked as Exhibits before the Court. This has caused serious infraction of the mandates of Section 64 and 65 of the Indian Evidence Act."
However in the instant case original documents of the exhibits were proved without any objection from the otherside. Therefore, the case of Camrus Zaman (supra) would not come to the aid of the appellant. Intest Case No.7/2008 Page 14 of 16 15
18. The material evidence on record would amply demonstrate that the appellants have obtained the succession certificate fraudulently by making of a false suggestion and/or by the concealment from the court of something material to the case and further the conduct of the appellants would show that the succession certificate No. 138/99 was obtained by means of an allegations of a fact essential in point of law not to justify the grant thereof and the grounds as specified under Section 383 of the Act has been proved and accordingly revoked the succession certificate granted in favour of the appellants, which, thus, in the opinion of the Court do not require to be interfered with.
19. It may be pertinent to mention that Chapter X of the Indian Succession Act, 1925 empowers the court to grant Succession Certificate which is summary in nature. In the instant case, while obtaining the succession certificate, the appellants did not make the respondent as party in the application and the respondent had to invoke the power Intest Case No.7/2008 Page 15 of 16 16 under section 383 of the Act which has been fully established that the appellants has obtained the succession certificate fraudulently and thus the impugned order do not require to be interfered with in the facts and circumstances of the case. The Court is aware that while dealing with an application for grant of the certificate and the revocation thereof, the court should not enter into the determination of intricate questions of law or fact but issue the certificate in favour of a person or revoke the same considering the facts and circumstances of the case.
20. From the discussion made hereinabove, this Court finds that the Ad-hoc Additional District Judge, Kamrup, Guwahati has not committed any illegality or perversity in passing the order for revoking the succession certificate No. 138/99.
21. In the result there is no merit in the appeal and the appeal is accordingly dismissed leaving the parties to bear their own costs.
JUDGE shivani Intest Case No.7/2008 Page 16 of 16