Delhi District Court
Smt. Saroj Sharma vs (1) The State on 26 February, 2008
IN THE COURT OF SHRI DIG VINAY SINGH:
ADMINISTRATIVE CIVIL JUDGE: DELHI
Petition No.: 311/1998
Date of Institution: 29.04.1998
Date of order when reserved : 26.02.2008
Date of order when announced: 26.02.2008
In the matter of:-
Smt. Saroj Sharma
W/o late S.P.Sharma
R/o B-3/117-B, Keshav Puram,
Lawrence Road, New Delhi. .....Petitioner
Versus
(1) The State
(2)Deepak Sharma
S/o late S.P. Sharma
(3)Ms. Reema Sharma
D/o late S.P.Sharma
(4)Ms. Seema Sharma
D/o late S.P.Sharma
(5)Ms. Nidhi Sharma
D/o late S.P.Sharma
All R/o B-3/117-B, Keshav Puram,
Lawrence Road, New Delhi. ......Respondents
J U D G M E N T:
1. This is a succession petition filed by the petitioner Smt. Saroj Sharma claiming herself to be widow of deceased S.P.Sharma in which she is claiming succession certificate to the debts and securities of the deceased. Besides herself she named four other LRs left behind by the deceased namely Deepak Sharma, Ms. Reema Sharma, Ms. Seema Sharma and Ms. Nidhi Sharma, Contd.....2..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 2 : all of whom gave No Objection in favour of the petitioner.
2. Publication in this case was effected in newspaper "Times of India" dated 22.9.98.
3. In this case, objection was filed by Smt. Haripriya Sharma and Master Ashutosh Sharma, who claimed that the petitioner had divorced the deceased and thereafter, the deceased had re-married the objector Haripriya Sharma and out of said wed-lock, second objector Ashutosh Sharma was born. It is claimed by the objector that both objectors as well as four children of the deceased who have filed No Objections are only entitled to 1/6th share each and that petitioner is not entitled to any share whatsoever. It is also stated that deceased was a permanent resident of District Pauri Garwal, U.P. and therefore, this petition cannot continue in Delhi courts and also that objector Haripriya Sharma earlier filed a petition for grant of Succession Certificate in Pauri Garwal, then a part of state of U.P. and therefore, this petition cannot continue here.
4. Before proceeding further it may be mentioned here that succession petitions are to be decided summarily. Sec. 373 of the Indian Succession Act Contd.....3..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 3 : provides that a succession petition is to be decided in a summary manner and even if the judge cannot decide the right to the certificate without determining questions of law or fact which may seem to be too complicate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. Thus U/s 373 of Indian Succession Certificate, only prima facie case is to be seen and other questions of law and fact which may be complicated are to be decided in regular civil court.
5. In the case of Madhvi Amma Bhawani Amma and others, Appellants v. Kunjikutty Pillai Meenakshi Pillai and others, Respondents. AIR 2000 SUPREME COURT 2301= 2000 AIR SCW 2432 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 in 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 Contd.....4..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 4 : be construed that mere grant of such certificate or a decision in such proceeding would constitute to be a decision on an issue finally decided between the parties. If that be so the principle of res judicata cannot be made applicable." (Para 13)
6. With this legal position in mind we proceed to examine who and for how much share is prima facie entitled to succession certificate.
7. My Ld. Predecessor Court was pleased to fix this matter for evidence of both the sides.
8. Petitioner examined herself as PW-1 in which she deposed that deceased was her husband who died on 09.12.2007 and his death certificate was proved as Ex. P.1. She deposed that besides herself, deceased left behind three daughters and one son who are already respondent nos. 2 to 5 and they have filed their No Objection to the grant of Succession Certificate in her favour. Mother of the deceased had predeceased him and deceased died intestate who was working with Oriental Insurance Company and left behind service benefits as mentioned in Ex. P.3. She deposed that objector do not have any relation whatsoever with the deceased and that petitioner never divorced the deceased.
9. During her cross-examination, a suggestion was Contd.....5..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 5 : put by the objector to her whether she knew that the deceased married the objector Haripriya Sharma on 10.02.93 to which she replied she is not aware nor that she was aware that second objector was born out of the said wed lock. During cross-examination of the petitioner, the objector did not put to this witness any divorce decree passed by any competent court of Law although the objector had taken the objections that the petitioner had divorced the deceased but no such divorce proceedings were put to the witness.
10.On the other hand, the objector examined Mr. Jemma Lakra as OW-1 from Oriental Insurance Company where the deceased was working who testified that Oriental Insurance Company was in possession of certain photocopies of letter dated 08.08.95, 02.04.98, 15.01.98 and 12.7.94 but he stated that Oriental Insurance was not in possession of originals of these documents. The cross-examination of this witness is very important which shows that as per record of Oriental Insurance Company, the deceased had nominated his four children from wedlock with first wife petitioner as nominees for gratuity. He also proved that petitioner and all four Contd.....6.
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 6 : children were nominees for Pension. He also proved that Deepak and Nidhi children of deceased from petitioner were nominees from Provident Fund. The nominees documents were proved as OW-1/DX.1 to OW-1/DX.3.
11. The objector examined herself as OW-2 in which she proved that in the year 92-93, deceased was posted as Kotdwar and he told this objector that his previous marriage with the petitioner had already dissolved vide a Decree of Divorce from the court of judicial Civil Judge, Dehradoon. This witness was also told by the deceased regarding bitter relationship between the petitioner and the deceased and thereafter, deceased married the objector Haripriya Sharma on 10.02.93 at Kotdwar, Uttaranchal according to Hindu Rites and ceremonies. On 12.7.94 objector Haripriya Sharma gave birth to second objector Ashutosh out of their wed lock with the deceased and she proved the affidavit allegedly executed by the deceased Ex. RW-1/4 which is attested by a Oath Commissioner. She also deposed that deceased wrote some communication Ex. RW-1/4 to change the nomination in his official records which was sent to the employer. She also proved birth Contd.....7..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 7 : certificate of Ashutosh as RW-1/5 and letter written by the deceased to CMO, Govt. hospital, Kotdwar, Uttranchal allegedly in his writing as RW-1/6 and acknowledgment of the Oriental Insurance Company is Ex. RW-1/7. She also deposed that she sent the registered AD letter to Oriental Insurance Company to change the family records in the service records to the deceased as Ex. RW-1/8 and Ex. RW-1/9. She further deposed that she had lodged some criminal case under FIR No. 80/96 PS Kotdwar, Uttranchal in which she alleged that some cruelty/harassment had taken place against her by her deceased husband and other family members. She deposed that deceased was facing trial when he expired and subsequently, she withdrew the complaint pursuant to some assurance giving by the brother of the deceased. She claimed in her testimony that she alongwith her son Ashutosh and the four children of the deceased from his first wife are entitled to 1/6th share each.
12.In the cross-examination, this witness admitted that petitioner may be wife of the deceased and she is not in possession of any decree of divorce from any court of Law to show Contd.....8..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 8 : that petitioner was divorced by the deceased prior to her marriage with the deceased. She also admitted that at the time of death, deceased was residing in Delhi with petitioner and children, thereafter she again in next breath said that petitioner was not residing with the deceased.
13.I have heard both the sides. Ld. Counsel for the objector claimed that it has been proved by the objector on record that objector Haripriya Sharma was married with the deceased and that second objector Ashutosh Sharma was born out of the said wedlock, therefore both the objectors are entitled to their claim. It is argued that the very fact that investigating agency filed a chargesheet against the deceased by the objector Haripriya Sharma regarding some matrimonial cruelty goes to show that Haripriya Sharma was his wife. He also contended that Oriental Insurance Company is in possession of copies of documents sent by the deceased and the objector and birth certificate of Ashutosh proves that he is son of deceased. On the other hand, counsel for Objector argued that no decree of divorce is proved nor the objector has been able to prove her marriage by way of Contd.....9..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 9 : examining any Pandit or any other independent witness. No scientific evidence of birth of Ashutosh from deceased is proved. Therefore, when the deceased admittedly was never posted at Kotdwar, there is no right of any of the two objectors.
14.From the above discussion, one thing is very clear that it is an admitted position from the nomination by the deceased in his official records that he has nominated the petitioner and his four children from the petitioner only in his official records till his death. The deceased did not change the nomination in favour of either of the objector. This goes to prove that petitioner was indeed a legally wedded wife of the deceased. Objector claimed that petitioner was divorced from deceased but no such divorce decree could be proved by the objector onus of which was on objector. In absence of proof that there was any valid decree of divorce between petitioner and the deceased one thing is very clear that petitioner is wife of the deceased and that she was married to deceased prior in time than the objector Haripriya Sharma. Now even if for the sake of arguments, it is taken that the Contd.....10..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 10 : deceased married objector Haripriya Sharma by concealing fact or by mis-representation of fact that he had not obtained any divorce from first wife, fact would be that Haripriya Sharma got married to the deceased subsequently and that too when the first marriage was valid and subsisting. Second marriage of the deceased with objector Haripriya Sharma during subsistence of first marriage is null and void as per Hindu Marriage Act. Therefore, even if for the sake of arguments, contentions of Ld. Counsel for the Objector is accepted that the prosecution of the deceased for matrimonial offence and other letters/affidavit written by the deceased, goes to show that he married objector Haripriya Sharma still the marriage of objector Haripriya Sharma would be void since first marriage was not dissolved and first wife was alive, therefore, there is no right of Haripriya Sharma to claim anything in the assets of the deceased.
15.However, so far as Ashutosh is concerned, the documents which have been placed on record particularly the birth certificate, when birth was registered on 12.7.94 itself Ex. RW-1/5 it is clear that name of deceased is mentioned as Contd.....11..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 11 : father of Ashutosh. This document is of a much prior date of death of deceased and therefore this court has no reason to disbelieve it. This document and other documents on record suggests that it is a case where deceased during subsistence of his first marriage, married Haripriya Sharma and gave birth to Ashutosh. Law is well settled that children from illegitimate marriage and unlawful marriage are indeed entitled to claim in the Assets of the deceased and their right would be equivalent to the legitimate children.
16. In the case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma and others, Appellants v. K. Devi and others, Respondents AIR 1996 SUPREME COURT 1963 = 1996 AIR SCW 2337 it was held "44. It was in this background that Hindu marriage Act, 1955 was enacted by Parliament to amend and codify the law relating to marriage among Hindus. The Act applies to every person who is a Hindu by religion in any of its forms or developments, indicated in Section 2 thereof, including a person who is a Buddhist, Jain or Sikh by religion, Besides other categories of persons who are to be treated as "Hindus", the explanation appended to Section 2 provides that any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, shall also be a Hindu. It also provides that any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh and who is brought up as a member of the tribe, group, community or family to which such parent belongs, will be a Hindu.
45. Other relevant provisions of the Act may also be noticed.
Contd.....12..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 12 :
46. Section 4 of the Act provides that the Act shall have an overriding effect. It provides as under :
"4. Overriding effects Act - Save as otherwise expressly provided in this Act:-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision in made in this Act.
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
47. Conditions for a Hindu Marriage are indicated in Section 5 which is quoted below :
"5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage neither party -
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of (twenty one years) and the bride the age of (eighteen years0 at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."
48. Section 16, as originally enacted, Contd.....13.
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 13 : provides as follows :
"16. Legitimacy of children of void and voidable marriages :
Where a decree of nullity is granted in respect of any marriage under Section 11 or Section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity : Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
49. Section 11 and 12 which are referred to in Section 16 above are also quoted below :
"11.Void marriages - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the condition specified in clause (i), (iv) and
(v) of Section 5 ."
"12. Voidable marriages - (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely :
(a) that the marriage has not been consummated owing to the impotence of the respondent; or
(b) that the marriage is in contravention of the condition specified in clause (ii) of Section 5 ; or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required Contd.....14..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 14 : under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
(2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage -
(a) on the ground specified in clause (c) of sub-section (1), shall be entertained if -
(i) the petition presented more than one year after the force ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) on the ground specified in clause (d) of subsection (1) shall be entertained unless the Court is satisfied:
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground."
50. The requirements for the applicability of Section 16 (as originally enacted), which protected legitimacy, were that :
(i) there was a marriage;
(ii) the marriage was void under Section 11 or voidable under Section 12;
(iii) there was a decree annulling such Contd.....15..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 15 : marriage either under Section 11 or under Section 12;
(iv) the child was begotten or conceived before the decree was made.
51. A marriage would be null and void if it was solemnized in contravention of clauses
(i), (iv) and (v) of Section 5, Clause (i) prohibits a marriage if either party has a spouse living at the time of marriage. Clause (iv) prohibits marriage if the parties are not within the degrees of prohibited relationship while Clause (v) prohibits a marriage between parties who are the 'sapindas' of each other. A marriage in any of the above situations was liable to be declared null and void by a decree of nullity at the instance of either party to the marriage. Section 16 was intended to intervene at the state to protect the legitimacy of children by providing that children begotten or conceived before the making of he decree would be treated to be legitimate and they would inherit the properties of their parents, though not of other relations.
52. Similarly, a marriage solemnized either before or after the commencement of the Hindu Marriage Act, 1955 was made statutorily voidable if it was found that the husband was impotent at the time of marriage and continued to be so till the institution of the proceedings or that a party to the marriage was either idiot or a lunatic or that the consent of the party of the marriage or that of the guardian required under Section 5 of the Act, was obtained by force or fraud or that the girl at the time of marriage was pregnant by some other person. In such a situation, the marriage was liable to be annulled by a decree of nullity at the instance of either party to the marriage. The legitimacy of children of such a marriage was also protected by Section 16 by providing that for purpose of inheritance, the children would be treated to be legitimate and would inherit the properties of their parents.
55. Illegitimate children, on the contrary, Contd.....16..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 16 : are children as are not born either in lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, out Parliament, and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was a adopted by other advanced countries.
58. In spite of the foresightedness of the legislators, the intention of the Parliament could not be fully reflected in the Act which unfortunately suffered at the hands of persons who drafted the Bill and the various provisions contained therein. The results were startling. Since the Rule of Legitimacy was made dependent upon the marriage (void or voidable) being annulled by a decree of annulment, the children born of such marriage, would continue to be illegitimate if the decree of annulment was not passed, which, incidentally, would always be the case, if the parties did not approach the Court. The other result was that the illegitimate children came to be divided in two groups; those born of marriage held prior to the Act and those born of marriage after the Act. There was no distinction between these two groups of illegitimate children, but they came to suffer hostile legislative discrimination on account of the language employed therein. Indeed, language is an imperfect instrument for the expression of human thought.
59. The object of Section 16 was to protect legitimacy of children born of void or Contd.....17..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 17 : voidable marriages. In leaving out one group of illegitimate children from being treated as legitimate, there did not appear to be any nexus between the object sought to be achieved by Section 16 and the classification made in respect of illegitimate children similarly situate or circumstanced. The provisions of Section 16 were, therefore, to that extent, clearly violative of Article 14 of the Constitution.
64. In order, therefore, to give full effect to what was intended to be achieved by enacting Section 16, the Parliament intervened and amended Section 16 by Act No. LXVIII of 1976 pointing out in the Notes to the Clauses of the Bill and the Amending Act, 1976 that :
"this clause seeks to substitute Section 16 so as to clarify the intention and to remove the difficulties in interpretation."
"16. Legitimacy of children of void and voidable marriages.- (1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is Contd.....18..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 18 : annulled by a decree of nullity under Section 12, any rights in or to property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
76. The words "notwithstanding that a marriage is null and void under Section II"
employed in Section 16 (1) indicate undoubtedly the following :-
(a) Section 16 (1) stands delinked from Section 11.
(b) Provisions of Section 16 (1) which intended to confer legitimacy on children born of void marriages will operate with full vigour in spite of Section 11 which nullifies only those marriages which are held after the enforcement of the Act and in the performance of which Section 5 is contravened.
(c) Benefit of legitimacy has been conferred upon the children born either before or after the date on which Section 16 (1) was amended.
(d) Mischief or the vice which was the basis of unconstitutionality of unamended Section 16 has been effectively removed by amendment.
(e) Section 16 (1) now stands on its own strength and operates independently of other Sections with the result that it is constitutionally valid as it does not discriminate between illegitimate children similarly circumstanced and classifies them as one group for conferment of legitimacy. Section 16, in its present from, is, therefore, not ultra vires the Constitution.
77. Section 16 contains a legal fiction. It is by a rule of fictio juris that the Legislature has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwithstanding that the marriage was void or voidable.
79. In view of the legal fiction contained in Section 16, the illegitimate children, Contd.....19..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 19 : for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.
80. Obviously, appellant 2 to 6 were born prior to the date on which amendments were introduced in Section 16 (1), and consequently they would, notwithstanding that the marriage between their parents had taken place at a time when there was a legislative prohibition on the second marriage, be treated as legitimate, and would, therefore, inherit the properties of their father, Raman Nair, under Section 16 (3) of the Act.
17. So far as the contention that deceased was a permanent resident of Pauri Garwal or that a Succession petition was pending before the court of Pauri Garwal is concerned, in this case it is an admitted position that deceased was working with Oriental Insurance Company and that deceased expired in Delhi on 09.12.97 and his death certificate is Ex. P.1. Even the debts and securities claimed are based in Delhi since head office of Oriental Insurance Company is in Delhi. There is no evidence which has come on record that deceased was not ordinarily resident of Delhi at the time of his death. Therefore, this petition is maintainable and Law is well settled that the decision in succession petition does not operate as res- judicata and neither the petitioner nor Contd.....20..
(Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) : 20 : objector says that any other succession petition has been decided prior to today by any other Court of Law.
18.In view of above discussion, it is held that the petitioner Saroj Sharma, her four children from the deceased namely Deepak Sharma, Ms. Reema Sharma, Ms. Seems Sharma and Ms. Nidhi Sharma and objector Ashutosh Sharma from second marriage are only prima-facie entitled to claim succession and all of them shall claim simultaneously their 1/6 share each.
th
19. As mentioned above, the four children of the petitioner have already given No Objection in favour of the petitioner Saroj Sharma. Therefore, succession certificate be issued in favour of Saroj Sharma as well as in favour of Ashutosh Sharma in the ratio of 5/6th and 1/6th share in the debts and securities of the deceased in terms of Ex. P.3, on filing of requisite proportionate 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 (DIG VINAY SINGH ) on 26.02.2008 Administrative Civil Judge:Delhi (Jud./P.No.311 of 98/dtd. 26.02.08/Smt.Saroj Sharma Vs. State/total pages(20)/PS) Petition No. 311/1998 SMT. SAROJ SHARMA VS. STATE 26.02.2008 :
Pr. : Sh. A.C. David, Ld. Counsel for the petitioner.
Sh. Upender Gupta for objector Haripriya Sharma.
Arguments heard. Be awaited for Orders today after lunch.
AFTER LUNCH :
Vide my separate judgment announced in the open court today, Succession Certificate is ordered to be issued in favour of petitioner Smt. Saroj Sharma and objector Ashutosh Sharma in the ratio of 5/6th and 1/6th share respectively in respect of debts and securities of deceased Sh.S.P.Sharma in terms of Ex.P.3, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.
No further orders are required to be passed in the matter. File be consigned to Record Room.
(Dig Vinay Singh) ACJ/Delhi 26.02.2008