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2004 DIGILAW 603 (MP)

Prabha Dubey v. Santosh Dubey

2004-07-30

S.K.PANDE

body2004
Judgment ( 1. ) THIS revision under Section 115 of CPC is directed against the order dated 54-2002 passed by the Second ADJ, Mandala in M. A. No. 7/2001. ( 2. ) LATE Shyam Sunder Dubey, an employee of the State Government, Health Department, Mandala died on 29-11-96. Petitioners Smt. Prabha Dubey, Vineet, Ku. Sonia and Praveen Kumar presented application under Section 372 of the Indian Succession Act (hereinafter referred to "the Act" for convenience) before the First Civil Judge Class-I, Mandala seeking succession certificate to collect the dues of late Shyam Sunder Dubey. They have contended that petitioner Prabha Dubey was married with late Shyam Sunder Dubey on 17-11-86 and Vineet, Ku. Soniya, Praveen Kumar Dubey were born of the aforesaid wedlock. Respondents resisted the application aforesaid stating inter alia that petitioner Prabha Dubey is not legally married wife of late Shyam Sunder. Marriage between respondent Santosh Dubey and late Shyam Sunder Dubey was validly performed on 6-2-66 and respondent Jyoti Dubey was born of the aforesaid wedlock. The Civil Judge in Succession Case No. 5/99 vide order dated 16-1-2001 held that petitioner Prabha Dubey and respondent Santosh Dubey lived with late Shyam Sunder as their wives. Therefore, children born from the aforesaid wedlock alongwith petitioner Prabha Dubey and Santosh Dubey arc entitled to collect the dues of late Shyam Sunder. Accordingly, the Civil Judge directed issuance of succession certificate in favour of the petitioners as well as respondents in equal shares. Being aggrieved, respondents Santosh Dubey, Ku. Jyoti Dubey preferred M. A. No. 7/2001 before the Second ADJ, Mandala. The Court below vide impugned order dated 5-1-2002 held that marriage between respondent Santosh Dubey and late Shyam Sunder Dubey since was subsisting, petitioner Prabha Dubey shall not be entitled to seek succession certificate in respect of dues of late Shyam Sunder Dubey. However, the children born from the wedlock of Prabha Dubey and late Shyam Sunder Dubey would be entitled. Accordingly the Court below directed issuance of succession certificate in favour of respondents Santosh Dubey, Jyoti and petitioners Vineet, Sonia and Praveen Kumar. Further respondent Santosh Dubey has been held entitled to seek family pension from the department of late Shyam Sunder Dubey. Being aggrieved, petitioners have preferred the present revision. ( 3. Accordingly the Court below directed issuance of succession certificate in favour of respondents Santosh Dubey, Jyoti and petitioners Vineet, Sonia and Praveen Kumar. Further respondent Santosh Dubey has been held entitled to seek family pension from the department of late Shyam Sunder Dubey. Being aggrieved, petitioners have preferred the present revision. ( 3. ) IT is contended that the Court below erred in recognizing respondent Santosh Dubey and Jyoti Dubey to be the widow and daughter of late Shyam Sunder Dubey. Marriage between petitioner Prabha Dubey and late Shyam Sunder Dubey was performed on 17-11-86 and with reference to evidence adduced it ought to have been held that petitioners alone are entitled to seek a succession certificate to collect the dues of late Shyam Sunder Dubey. ( 4. ) THE application under Section 372 of the Act presented by the petitioners has been resisted by the respondent stating inter alia that marriage between respondent Santosh Dubey and late Shyam Sunder Dubey was performed on 6-2-66 and from the said wedlock respondent Ku. Jyoti was born. Respondent Santosh Dubey presented application under Section 372 of the Act before the First Civil Judge Class I, Jabalpur, being registered as Succession Case No. 19/98. Petitioners were objectors to the said application and presented reply (Ex. D-1 ). As per this, they have admitted that respondent Santosh Dubey is a divorced wife of late Shyam Sunder Dubey. The said divorce was affected in the year 1991 thereafter the second marriage with petitioner Prabha Dubey was contacted and the children born from this wedlock are entitled to seek succession certificate. Prabha Dubey (P. W. 1) in cross-examination Para 7 has admitted filing of reply (Ex. D-1) under her signature A to A. She has further stated that late Shyam Sunder Dubey apprised her of the fact of divorce of his wife Smt. Santosh Dubey held in the year 1991. However, there is nothing to demonstrate the alleged divorce between late Shyam Sunder Dubey and respondent Smt. Santosh Dubey. The statement of Santosh Dubey (D. W. 1) has been relied upon by the Courts below to conclude that Smt. Santosh Dubey was legally married to late Shyam Sunder Dubey and respondent Jyoti was born of the said wedlock, Exs. However, there is nothing to demonstrate the alleged divorce between late Shyam Sunder Dubey and respondent Smt. Santosh Dubey. The statement of Santosh Dubey (D. W. 1) has been relied upon by the Courts below to conclude that Smt. Santosh Dubey was legally married to late Shyam Sunder Dubey and respondent Jyoti was born of the said wedlock, Exs. D-3 to D-27 documents also demonstrate that in her official record, Jyoti Dubey (P. W. 2) all the time has been shown to be daughter of late Shyam Sunder Dubey. Where the first marriage of late Shyam Sunder Dubey was subsisting, second wife petitioner Prabha Dubey would not be entitled to succession certificate. However, the children born from the wedlock of deceased of second wife Smt. Prabha Dubey shall be entitled to claim succession in his property in view of Section 16 of Hindu Succession Act. As has been laid down in Smt. Savitri Devi v. Manorama Bai, AIR 1998 MP 114 , issuance of succession certificate ignoring petitioner Prabha Dubey as ordered by the Court below in favour of respondents Santosh Dubey, Jyoti Dubey and petitioners Vineet, Soniya and Praveen Kumar can not be said to be improper. ( 5. ) IN Re : Rajambal Bai, petitioner AIR 1955 NUC (Madras) 3943 (Vol.) 42, dealing with the nature of the enquiry under Section 373 of the Act, it has been held :the purpose of the grant of succession certificate is not to give litigant parties an opportunity of litigating contested questions of title to property. The object to the Act (Part X) is to obtain the appointment of some person to give a legal discharge to debtors to the estate for the debts due. It was not intended that nice questions of law as to the rights of the parties to the estate of the deceased should be decided on an application under it. Consequently, the practice is to issue a certificate to the person who has prima facie the clearest title to the succession, such as the natural heir, and to leave a person, whose claim to a superior title is on reasonable grounds disputed, to establish that title by regular suit. Case Jaw referred. ( 6. ) IN the summary enquiry petitioner Prabha Dubey has been found to be the second wife during subsisting marriage between respondent Santosh Dubey and late Shyam Sunder Dubey. Case Jaw referred. ( 6. ) IN the summary enquiry petitioner Prabha Dubey has been found to be the second wife during subsisting marriage between respondent Santosh Dubey and late Shyam Sunder Dubey. On the basis aforesaid, the Court below directed issuance of succession certificate in favour of respondent Santosh Dubey to seek family pension from the department concerned of late Shyam Sunder Dubey. It is contended that an elaborate enquiry-trial on the issue whether petitioner Prabha Dubey is not legally married wife of late Shyam Sunder Dubey would be necessary to disentitle from seeking retiral benefits such as seeking family pension from the department concerned. In such cases the matter could only be decided by a regular civil suit and the Court below erred in rejecting the claim of the petitioner Smt. Prabha Dubey directing respondent Santosh Dubey to be entitled to seek family pension from the department concerned. In Smt. Savitri Devi v. Manorama Bai (supra), it has been held that separate suit could be filed challenging the finding of Succession Court. In the summary enquiry conducted by the Court on application under Section 372 of the Act, petitioner Smt. Prabha Devi has been found to be the second wife during subsisting marriage between Smt. Santosh Dubey and late Shyam Sunder Dubey. On the basis aforesaid, the Court below rightly held that Smt. Santosh Dubey would be entitled to seek family pension from the depart- ment concerned. However, same shall be subject to the decision of Civil Court in case petitioner Smt. Prabha Dubey elects to file a separate suit seeking declaration in her favour. The Court below in granting succession certificate in favour of respondents and petitioner Vineet, Soniya and Praveen Kumar has not acted with material irregularity or illegality. ( 7. ) CONSEQUENTLY, affirming the orders passed by Courts below, revision fails and is dismissed. Parties to bear their costs throughout. Counsel fees as per rule or certificate (whichever is less ).