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1996 DIGILAW 727 (PAT)

Most Pratima Devi v. Most Sohago Devi

1996-11-05

R.N.SAHAY

body1996
Judgment Ravi Nandan Sahay, J. 1. These two appeals arise from the order dated 15-1-1993 passed by the District Judge, nalanda at Biharsharif in Succession certificate Case No.19 of 1991 whereby the learned District Judge has found that the appellants and the objectors were jointly entitled to the grant of Succession Certificate in respect of estate of the deceased Uma Shankar Prasad described in the Schedule of the application for certificate. 2. The above order was passed on an application filed by Most. Sohago devi and Most. Radhika Devi @ Vidya devi for issuance of succession certificate with regard to the estate of the deceased Uma Shankar Prasad. The applicants claimed to be the widows of late uma Shankar Prasad. The deceased was a teacher in a Government High School. Two widows of the deceased claimed that they were entitled for succession certificate in respect of the estate of the deceased, in the shape of amount of group Insurance Scheme, G. P. F. and "gratuity totalling Rs.1,59,000. On geneial notice being published Pratima devi, respondent No.1 in Misc. Appeal no.113 of 1993 and appellant in Misc. Appeal No.443 of 1994 appeared and filed objection petition. She disputed that the applicants were widows of the deceased as such they had no legal right to claim succession certificate. 3. Pratima Devi asserted that she was the only legally married wife of the deceased Uma Shankar Prasad. They were married according to Hindu rites and customs in the year 1977 and she was living with the deceased as his only wife till his death. She gave birth to two male and one female child after her marriage. She further claimed that after the marriage she was appointed as nominee by the deceased in respect of his G. P. F. Account, Insurance, etc. She was residing in the house of her husband situated at Ashok Nagar, kankarbagh, Patna and her name was also mutated in respect of the said house as well as with respect to another piece of land in the same locality which were the exclusive property of the deceased. 4. She was residing in the house of her husband situated at Ashok Nagar, kankarbagh, Patna and her name was also mutated in respect of the said house as well as with respect to another piece of land in the same locality which were the exclusive property of the deceased. 4. Pratima Devi has alleged that sitaram Prasad, who happens to be the elder brother of the deceased, was also a teacher at Harnaut High School, has his greedy eyes upon the property and deposits of the deceased and in order to grab the share in the joint family of the deceased as well as to oust Pratima Devi and her minor children from the property of the deceased set up two fake ladies to file an application for grant of succession certificate. She has, however, admitted that the deceased had married one Sohago Devi prior to her marriage with the deceased but Sohago Devi died long ago, and in her place a stranger lady has been set up as Sohago Devi for illegal gains. So far Radhika @ Vidya devi is concerned, she is daughter of one Sukhdeo Mahto and was married at village Hasochak P. S. N. Harnaut. 5. The applicants examined a large number of witnesses to establish that the applicant Sohago Devi was not a fake lady. She was legally married wife of the deceased. Sohago Devi also gave evidence which has been considered in paragraph 12 of the order. The oral evidence of the applicants have been considered in paragraphs IS to 23 of the order. Apart from the oral evidence two photographs of the applicant Sohago devi and Vidya Devi were produced. Ext.-l is said to be the nomination paper filed by the deceased Uma shankar Prasad in respect of family pension. Sohago Devi is described as first wife and was made nominee in respect of family pension. This was called from the office of the G. D. Patliputra High school Patna and had been produced by a. W.13, a clerk of that school. 6. The District Judge considered the evidence of twelve witnesses examined on behalf of the objector pratima Devi. Out of these witnesses only Pratima Devi denied that Sohago devi and Vidya Devi were wives of Uma shankar Prasad. The evidence of other witnesses was of no consequence. 6. The District Judge considered the evidence of twelve witnesses examined on behalf of the objector pratima Devi. Out of these witnesses only Pratima Devi denied that Sohago devi and Vidya Devi were wives of Uma shankar Prasad. The evidence of other witnesses was of no consequence. The district Judge on consideration of evidence found that both Sohago Devi and Vidya Devi were the legally married wife of the deceased. So far the claim of pratima Devi is concerned, the decision is in paragraphs 44 to 61 of the judgment. The District Judge found that the objector has been described as wife by the deceased himself as appearing from ext.-A,c,c/l and D or by the Municipal j"thority as appearing from Ex. G, G/l, h and I. 7. The District Judge found the ob-jector also to be legally married wife of the deceased. The learned District judge has correctly interpreted the scope of the enquiry under Sec.373 of the Indian succession Act. Enquiry is to be summary and court without determining the question of law and fact which seems too intricate and difficult for determination. The Court is required to determine who is the best person among the applicants for grant of succession certificate. The District judge, however, granted succession certificate jointly to the applicants Sohago devi and Vidya Devi as also the objectors. The applicants contend that the objectors, case is not proved while pratima Devi in her appeal challenges the grant of succession certificate to the applicants. 8. Section 373 of the Indian Succession Act is very much clear on the point that in a summary proceeding the district Judge shall fix a day for hearing the application for grant of succession certificate. If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the persdm having prima facie the best title thereto. When there are more than one applicants for a certificate, who are interested in the estate of deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. When there are more than one applicants for a certificate, who are interested in the estate of deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. It is well-settled law by the dif-ferent High Courts including this Court (1958 Pat LR 111, Syedashan Shere V/s. Sayeeda Begum) that except in exceptional cases a joint certificate will not be granted. In case of plurality of applicants, the Court has to select the fittest person and, if necessary, can take a security from him for satisfying others claim (AIR 1934 Pat 304, Neazmul haque V/s. Mt. Mouludunnisa.) 9. In AIR 1966 All 107 (Ganga devi V/s. Smt. Munia) succession certificate had been granted to both the applicants. The High Court set aside the order of the District Judge and ordered that succession certificate shall be granted to one of the applicants only subject to putting sufficient security to the satisfaction of the court below. 10. In Sukumar Deb V/s. Parbati Bala, air 1941 Cal 663, B. K. Mukherjea and roxburgh, JJ. held as under: "we may mention here in passing that the practice of granting joint certificates has been condemned in several cases: vide 5 All 195, 11 Bom 179. It is no doubt fraught with obvious inconvenien-ces and Sec.373 (4), Succession Act, makes it clear that when there are several applicants for a succession certificate, the judge should grant certificate to one of them on a consideration of the extent of their interests in the property of the deceased and the relative fitness of the applicants themselves. But there may be cases, we think, when the several ap-plicants have the same decree of Interest in the estate of the deceased and there are no circumstances present which would enable the Judge to say that one is better qualified than the other. Under such circumstances we think that the granting of joint certificate is not illegal, particularly if the persons to whom the certificate is granted agree to take it in that form vide 34 All 470. " 11. Under such circumstances we think that the granting of joint certificate is not illegal, particularly if the persons to whom the certificate is granted agree to take it in that form vide 34 All 470. " 11. In Jagdish Narain V/s. Dhanushdhari AIR 1934 Pat 304, rowland, J. sitting with Fazl Ali, J. as his Lordship then was, observed as under: "it seems to me that in dealing with these applications the purpose and scope of enquiry under the Indian Succession have been somewhat lost sight of. Having regard to Sections 373 and 375 of the Indian Succession Act and particularly subsections 3 and 4 of Sec.378, I think the intention of the Legislature was that the Judge should select or appoint the fittest person to whom a single certificate could be granted to collect the whole of the debt on behalf of all the persons entitled to receive it and should take security from such persons that he would give their dues to all the other persons entitled to share in the distribution of the money. This is the only way in which I can construe the words: the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. " 12. In the instant case, the District judge granted certificate jointly to all the three ladies, who had established their claim in respect of the estate of the deceased. The order, therefore, is clearly in breach of Sec.373 of the indian Succession Act. 13. The next question is as to who is the fittest person to be granted succession certificate. Learned Counsel appearing for the appellants in M. A. No.113 of 1993 and respondents No.1 and 2 in M. A. No.443 of 1994 has strongly urged that Pratima Devi, who is appellant in MA. No.443 of 1994 is an imposter and there is no question that she should be granted succession certificate. 14. I have heard both the parties at great length and examined the evidence. As observed earlier the scope of enquiry under Sec.373 of the Indian Succession act is very much limited. Learned counsel appearing for Pratima Devi has highlighted strong points in favour of this appellant. 15. Most. 14. I have heard both the parties at great length and examined the evidence. As observed earlier the scope of enquiry under Sec.373 of the Indian Succession act is very much limited. Learned counsel appearing for Pratima Devi has highlighted strong points in favour of this appellant. 15. Most. Pratima Devi asserts that she is only legally wedded wife of Sri uma Shankar Prasad since she had married to deceased in 1977. From the said marriage with the deceased, she gave birth to two male and one female child. She further claims that she was appointed as nominee by the deceased in respect of C. P. F. Account, Insurance etc. and she was residing in the house of her husband situated in Ashok Nagar, Patna and her name was also mutated in respect of the said house and other piece of land in the same locality which is exclusive property of the deceased. 16. The District Judge had found from the documentary evidence that pratima Devi had been described as wife of the deceased either by the deceased himself vide Exts. A. C. C/1 and D or by the Municipal authority vide Exts. G, g/1, H and I. 17. Learned Counsel has referred to Rule 12 of the Bihar Government employees, Compulsory Government insurance Scheme, 1979. This Rule provides for procedure of withdrawal of the Group insurance amount by the nominee. It is submitted that the deceased had nominated Pratima Devi only. Under Rule 8 of the Bihar C. P. Fund Rules a subscriber has to send a nomination conferring the right to receive the amount that may stand to his credit in the fund in the event of his death. Nomination Form is prescribed under Rule 8 (2) of the Rules. Learned counsel submitted that the deceased had nominated Pratima Devi by nomination (Ext.-D), dated 5-8-1987. This nomination was accepted by the g. P. F. Officer. Nomination of Pratima devi was not cancelled under Rule 8 (7)of the Rules. It is submitted that there is no everment that there was subsequent nomination by the deceased. Pratima devi is said to be graduate and was employed on compassionate ground. The other two ladies are rustic villagers, one of them being blind and are incapable of discharging her responsibility after the death of the deceased. 18. In my opinion, Pratima Devi is the fittest person to be granted succession certificate. Pratima devi is said to be graduate and was employed on compassionate ground. The other two ladies are rustic villagers, one of them being blind and are incapable of discharging her responsibility after the death of the deceased. 18. In my opinion, Pratima Devi is the fittest person to be granted succession certificate. The order of the district Judge, therefore, granting joint certificate is contrary to the provisions contained in Sec.373 of the Indian succession Act and is set aside. Misc. Appeal No.443 of 1994 is allowed. Misc. Appeal No.113 of 1993 is dismissed. Pratima Devi shall collect the whole of the debt on behalf of the persons entitled to receive it. She shall furnish security to the satisfaction of the district Judge that she would give their dues to all the other persons entitled to share in distribution of the money and shall render accounts of cash received by her and for indemnifying the other claimants. No costs. Order Accordingly