Delhi District Court
Smt. Durpati vs The State on 6 April, 2017
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE
CUM ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
Presided over by : Sh. Hem Raj
Petition No. : SC/32912/2016
In the matter of:
1 Smt. Durpati,
W/o. Late Sh. Ram Manohar,
2 Mr. Arjun,
S/o. Late Sh. Ram Manohar,
3 Ms. Rajesh Kumari,
D/o. Late Sh. Ram Manohar,
4 Ms. Anupa Vishwakarma,
D/o. Late Sh. Ram Manohar,
All R/o. H. No. 51, Atul Grove Road,
T & P Quarters, Connaught Place, New Delhi.
....Petitioners.
Versus
1 The State.
(Govt. of NCT of Delhi)
2 Sh. Vipat,
S/o. Late Sh.
R/o. Village - Gaura Bramau,
P.S. Waldiraim, ParganaIsauli,
TehsilMushafirkhana,
Petition No. 32912/16
Distt. Sultanpur (U.P.).
3 Chief General Manager,
BSNL, Second Floor,
Kidwai Bhawan, Janpath,
Connaught Place, New Delhi.
4 Executive Engineer (Civil),
BSNL, Civil Dn.II,
T1, Atul Grove Road,
New Delhi.
.....Respondents.
Date of Institution : 14.01.2010 Date of order when reserved : 28.03.2017 Date of order when announced : 06.04.2017 J U D G M E N T : 1 The present petition U/s. 372 of Indian Succession Act has
been filed seeking succession certificate in respect of debts and securities of the deceased Sh. Ram Manohar S/o. Sh. Vipat.
2 The petitioners no. 1 to 4 had claimed themselves to be the wife, son and daughters of the deceased Sh. Ram Manohar respectively. The respondent no. 2 namely Sh. Vipat is the father of the deceased Sh. Ram Manohar. Respondents no. 3 and 4 i.e. Chief General Manager, BSNL and Executive Engineer, BSNL are the employer of the deceased.
Petition No. 32912/163 The petitioners had averred that deceased was ordinarily a resident of Delhi and expired at Delhi on 21.12.2009. It is further averred that Annexure 'C' annexed with the petition in which the details of the debts and securities has been mentioned.
4 Respondent no. 2 Sh. Vipat, who is the father of the deceased had filed the reply to the present petition stating that petitioners are not the wife and children of the deceased as deceased remained bachelor. He further submitted that he is the only legal heir of the deceased. He further submitted that a petition Under section 125 Cr.P.C. for maintenance filed by the petitioner no. 1 was dismissed by the court of Ms. Geetanjali Goel, Ld. Metropolitan Magistrate, New Delhi, vide order dated 25.07.2006. He further averred that the present petition is without any cause of action and malafide intention to usurp the assets of the deceased.
5 Petitioner No. 1 filed reply to the objections of objector No. 2 denying all the allegations levied against her.
6 Respondents no. 3 and 4, the employer of the deceased, has also filed the reply to the petition submitting that as per record, deceased Ram Manohar was not married and the petition was filed to illegally retain the Govt. accommodation provided to the deceased. It Petition No. 32912/16 is further averred that the present petition is without any cause of action and is liable to be dismissed.
7 In order to prove the case, petitioners examined PW1 Ms. Anupa Vishkarma; PW2 Smt. Durpati Devi; PW3 Ms. Rajesh Kumari; PW4 Sh. Bishwaji, BLO, from the office of Electoral Registration Officer, R.K. Puram and PW5 Sh. Arjun.
8 PW1 Ms. Anupa Vishkarma deposed that she is one of the legal heir of the deceased Late Sh. Ram Manohar. Her father died some time in 2007 or 2008 in the month of December last. Ex. PW 1/A is the death certificate of the deceased. Her father was allotted Government accommodation during his service tenure. The deceased did not execute any Will during his life time. She is entitled to the assets left behind by the deceased being her father.
9 During her cross examination, PW1 stated that marriage of deceased Ram Manohar with her mother was solemnized in the month of March, 1993. She does not know where the said marriage took place. She was shifted in Delhi in the month of March 1993. In her High School Certificate, Intermediate Certificate and in Graduation Certificate the name of her father has been mentioned as Surajdeen. Her mother used to tell that the name of her father is Surajdeen. She further stated that her mother has never told her that the name of her Petition No. 32912/16 father is Surajdeen I do not know the name of mother of Ram Manohar. The name of sister of Ram Manohar is Sona. She denied that Ms. Drupati was never married to Sh. Ram Manohar 10 Petitioner Smt. Durpati Devi examined herself as PW2. She deposed that she married with the deceased Ram Manohar in the year 1993. She further stated that Sh. Ram Manohar and she had mutually entered into a marriage agreement dated 16.03.1993. Mark F is the said marriage agreement. Petitioner no. 2 is the son and petitioners no. 3 and 4 are the daughters of Late Sh. Ram Manohar. The deceased has been residing with the petitioners herein till his death i.e. 21.12.2009 and his last rites were performed by the petitioner no. 2 as being son of the deceased Sh. Ram Manohar. Ex. PW2/1 is a Parman Patra issued by Gram Pradhan, Sunder Nagar with regard to her marriage with the deceased.
11 During cross examination, PW2 stated that she has four children namely Ms. Rani, Mr. Rajesh, Mr. Arjun and Ms. Anoopa from the marriage with Sh. Suraj Deen. She has lastly accompanied with Sh. Suraj Deen when her child, Anoopa was in her womb. She has not filed any divorce petition against Sh. Suraj Deen. She does not have any knowledge whether Sh. Suraj Deen is died or alive. Her marriage with deceased Sh. Ram Manohar was solemnized at Village Naare, District Sultanpur, UP. Sh. Suraj Deen and Sh. Ram Manohar Petition No. 32912/16 were relatives and cousin brothers. At that time, Sh. Ram Manohar undertaken to maintain the children and declare adopting her as his wife. No other rituals were performed except a writing on the paper, Ex. PW2/1. She had filed a case U/s. 125 Cr.P.C. against deceased, Sh. Ram Manohar and the same was dismissed.
12 PW3 Ms. Rajesh Kumari deposed that she was 11/12 years old when her mother was married to Late Sh. Ram Manohar and at that time she was with her Mausi.
13 During cross examination, PW3 stated that the name of her father has been mentioned in her school education certificate is Suraj Deen. The name of her father is Suraj Deen not Ram Manohar. She was not present at the time of marriage of her mother with Ram Manohar, but the marriage of her mother was held at Musafirkhana, District - Sultanpur, UP. She has been brought up by Late Sh. Ram Manohar. She has one brother and one sister. She does not know as to how many years after Mr. Suraj Deen went missing, her mother got married to Late Sh. Ram Manohar.
14 PW4 Sh. Bishwajit, BLO, AC44 from office of Electoral Registration Officer, R.K.Puram, Delhi filed the certified copy in respect of the Electoral roll for the year 2008, 2013, 2014 and 2015, in para no. 18, serl,. No. 157 in the year 2008 and in part no. 22, Serl.
Petition No. 32912/16No. 1145, 996, 1123 in the year 2013, 2014 and 2015 respectively. The address mentioned in the electoral roll is B754, Ambedkar Basti, Sector1, R.K. Puram, Delhi, Ex. PW4/1. The record pertaining to the year 1995 are not available with the said office. He was not cross examined despite opportunity.
15 PW5 Sh. Arjun stated that her mother got married at Village Nara, Post Office : Aharan, Tehsil : Musafir Khana, Distt. Sultanpur (UP). At that time, she was 89 years old. Her father was working as Beldar in BSNL. He has performed last rites of the deceased.
16 During cross examination, PW5 stated that the marriage of her mother with Sh. Ram Manohar was solemnized in the year 1991 or 1992. She alongwith her elder sister Rajesh Kumari attended the said marriage. The name of his natural father is Sh. Surajdeen. In his school records, the name of his father has been mentioned as Sh. Ram Manohar. He has not seen the solemnization of marriage ceremony of her mother with Sh. Ram Manohar.
17 On the other hand, respondent no. 2 Sh. Vipat i.e. father of the deceased has examined RW2/W1 Sh. Chiranji Lal Meena, AERO, Assembly Constituency40 and respondent no. 2 himself.
Petition No. 32912/1618 RW2/W1 Sh. Chiranji Lal Meena, AERO, Assembly Constituency40, Jam Nagar House filed the certified copy of the Electoral Roll of the year 2010 to 2012 of Assembly Constituency with regard to the persons namely Sh. Ram Manohar, Dropati, Ms. Rajesh Kumari, Sh. Arjun Kumar, Smt. Bindu Kumari, Ms. Sonu and Ms. Anupa Vishkarma, Ex. RW2/W1/A to Ex. RW2/W1/C. 19 During cross examination, RW2/W1 stated that the addresses of the aforementioned persons mentioned in the elector rolls is a Govt. Accommodation.
20 Respondent no. 2 Beepat himself examined as RW2/W2, who deposed that the deceased was never married. A petition Under section 125 Cr.P.C. for maintenance filed by the present petition was dismissed vide order dated 25.07.2006, held that the petitioner was not legally wedded wife of the deceased, Ram Manohar, the certified copy of the same is Ex. R2W1/1. He is the sole legal heir of the deceased Sh. Ram Manohar as he was never married. The family register issued by the Gram Panchayat Nara Adanpur, District Sultanpur is Mark A, clearly states that the petitioner no. 1 is the wife of Sh. Surajdeen and remaining petitioners are the sons and daughters of Surajdeen. A certificate issued by the Gram Pradhan Gaura Baramahu, District Sultanputr is Mark B which clearly states that he is the sole surviving legal heir of the deceased Ram Manohar. The electoral voting list of Petition No. 32912/16 Delhi is Mark C clearly states that the petitioner no. 1 is the wife of Surajdeen. The said list further makes clear that the petitioner no. 2 is the son of Surajdeen and petitioners no. 3 and 4 are daughters of Surajdeen.
21 During cross examination, RW2/W2 deposed that he came to Delhi to visit Ram Manohar during his illness at Jeewan Hospital. He knows Smt. Durpati, who had filed a civil case for injunction restraining the government for her eviction. Surajdin is alive and not missing. He is not aware about the whereabouts of Surajdin. He used to visit Ram Manohar at his house where Dropati and Ram Manohar was residing together.
22 Respondents no. 3 and 4 did not lead any evidence.
23 I have heard Ld. counsel for both the parties and has perused the record of the case carefully and written submission filed by the petitioners.
24 It has been contended by Ld. Counsel for the petitioner that petitioner no. 1 namely Durpati is widow and petitioners no. 2 to 4 namely Sh. Arjun, Ms. Rajesh Kumari and Ms. Anupa Vishwakarma are the children of the deceased Sh. Ram Manohar. The petitioner no. 1 was initially married to Sh. Surajdeen, who went missing in the year Petition No. 32912/16 1986. After waiting for more then 7 years, with the consultation of Sh. Ram Manohar as well as villagers, petitioner no. 1 got married with the deceased to safeguard the family left by Surajdeen, who has not ever been seen or heard since 1986. Petitioner no. 1 performed all duties/obligations being wife of the deceased when he was seriously ill. Respondent no. 2 Sh.Vipat being the father of the deceased is not entitled to get any share as he falls in the category II of schedule of legal heirs as appended with the Hindu Succession Act. Ex. PW2/1 is the Parman Patra issued by Gram Pradhan, Sunder Nagar, Delhi.
25 On the other hand, it has been contended by the ld. Counsel for respondent that deceased never married and remained bachelor during his life time. It is further contended that a petition Under Section 125 Cr.P.C. for maintenance was filed by the petitioner which was dismissed with the observation of the Hon'ble Court that petitioner was not the legally wedded wife of the deceased Sh. Ram Manohar.
26 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, Petition No. 32912/16 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 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."
27 The present petition has been filed by the petitioner Smt. Durpati claiming herself to be the wife of the deceased. During cross examination, Smt. Durpati Devi categorically deposed that Ms. Rani, Mr. Rajesh, Mr. Arjun and Ms. Anoopa are her children from her marriage with Sh. Suraj Deen. No divorce took place between petitioner Smt. Durpati Devi with Sh. Suraj Deen. The court is of the Petition No. 32912/16 considered opinion that it has been established that petitioner Smt. Durpati was earlier married with one Sh. Surajdeen and four children were born from the wedlock with Sh. Surajdeen. The stand of the petitioner is that she got married with deceased Sh. Ram Manohar by marriage agreement, there is no sanctity in the eyes of law regarding her marriage with the deceased and the said marriage is null and void under the provisions of Hindu Marriage Act, 1955. There is no dispute with regard to the relations of respondent no. 2 with the deceased. Therefore, the court holds that respondent no. 2 Sh. Vipat has been successful in prima facie establishing that petitioner no. 1 Smt. Durpati is not the legally wedded wife of the deceased and her children are not born from the wedlock of the deceased Sh. Ram Manohar. There is primafacie no impediment for grant of Succession Certificate in favour of respondent no. 2 Sh. Vipat in respect of service dues of the deceased Sh. Ram Manohar. Accordingly, a Succession Certificate be issued in favour of respondent no. 2 Sh. Vipat in respect of service dues of the deceased Sh. Ram Manohar in respect of outstanding amount of the deceased was Rs.9,36,445/. Succession Petition No. 32912/16 certificate be drawn on deposit of requisite court fee of Rs.23,411/ and on furnishing an Indemnity Bond with one surety within 15 days.
File be consigned to Record Room.
Announced in the open court (HEM RAJ)
on 06.04.2017 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi.
Petition No. 32912/16
32912/16
06.04.2017
Present : None
Put up for orders at 4:00 p.m.
(Hem Raj)
ACJ/ARC (Central)
Delhi/06.04.2017
At 4:00 p.m.
Present : None for petitioner.
Sh. Ashish Kumar, Ld. Proxy counsel for respondents no. 2 and 3 i.e. BSNL.
Vide separate judgment of even date, it is held that there is primafacie no impediment for grant of Succession Certificate Succession Certificate in favour of respondent no. 2 Sh. Vipat in respect of service dues of the deceased Sh. Ram Manohar. Accordingly, a Succession Certificate be issued in favour of respondent no. 2 Sh. Vipat in respect of service dues of the deceased Sh. Ram Manohar in respect of outstanding amount of the deceased Petition No. 32912/16 was Rs.9,36,445/. Succession certificate be drawn on deposit of requisite court fee of Rs.23,411/ and on furnishing an Indemnity Bond with one surety within 15 days.
File be consigned to Record Room.
(Hem Raj) ACJ/ARC (Central) Delhi/06.04.2017 Petition No. 32912/16