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2005 DIGILAW 153 (GAU)

Moina Muchi v. Anardu Muchi

2005-02-24

AFTAB H.SAIKIA

body2005
JUDGMENT A.H. Saikia, J. 1. Heard Mr. S.C. Biswas, learned Counsel for the Appellant. Also heard Mr. A.K. Goswami, learned Sr. counsel assisted by Ms. P. Bhattacharjee for the Respondents. 2. This intestate appeal has been preferred against the order dated 3.12.02 passed by the learned District Judge, Karimganj in Misc. (Succession) Case No. 143 of 2000 wherein learned Judge held that the Appellant not being legally married wife of one late Shyamraj Muchi, was not entitled to get any succession certificate for the debts and sureties left out by the said deceased. 3. Challenging the impugned order, Mr. Biswas, learned Counsel for the Appellant has forcefully argued that although, admittedly, the Appellant was the second wife, in the service record of the deceased, the name of the Appellant was recorded as the legal heir. Hence, the learned Court below ought to have considered in the said succession application her entitlement to debts and sureties left by the above deceased. 4. Countering such claim of the Appellant, Mr. A.K. Goswami, learned Sr. counsel appearing for the Respondent has vehemently contended that mere recording of the name of the Appellant in the service book would not make her entitled to get a succession certificate of the deceased due to the basic fact that the Appellant was not a legally married wife of late Shyamraj Muchi. In support of his such submission, he has relied on a decision of the Hon'ble Supreme Court reported in (1984) 1 SCC 424 (Smti. Sarbati Devi and Anr. v. Smti Usha Devi). In that case in paragraph No. 12, the Hon'ble Court held that mere nomination made in Section 39 of the Act, referring to the Life Insurance Act, 1938, providing for nomination by the policy holder to nominate any person in the event of death, does not have the effect the policy holder to nominate any person in the event of death, does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. He has further contended that the second wife under the Hindu Marriage Act, 1955 is not entitled to get any family pension in service law. In this regard, he has cited a case reported in (2000) 2 SCC 431 (Rameswari Devi v. State of Bihar and Ors.) wherein the Hon'ble Supreme Court observed that the minor children of the second marriage are entitled to family pension but not the second wife. 5. I have given my anxious consideration to the rival contentions advanced by the learned Counsel for the parties and also have perused the materials available on record including the impugned order. It appears that the Appellant was, admittedly, not a legally married wife of the deceased Shyamraj Muchi under the Hindu Law for which she could not make any claim for such succession certificate for the debts and sureties left by the deceased. However, the minor daughter having been born to the Appellant from the deceased's side shall, in view of the Rameswari Devi's case (Supra), be entitled to such succession in question and the learned trial Court rightly granted the succession certificate to the extent of 1/6th of the total amount for the benefit of the minor daughter. Moreso, the claim to the effect that as the name of the Appellant was recorded in the service book as legal heir of late Shyamraj Muchi, she was entitled to get succession certificate for the debts and liabilities in question, is not tenable because just mentioning her name in the service book would not make her entitled to such claim. This Court is guided to adopt this view from the ratio laid down in Saibati Devi's case (Supra). Hence, this Court does fully agree with the view expressed by the learned trial Court. 6. Consequently, I find no illegality or irregularity is being committed by the learned Judge in arriving at a conclusion as noticed hereinabove warranting the interference of this Court. 7. Accordingly, this Court is disinclined to upset the impugned order. Consequently, this appeal fails and stands dismissed. Appeal dismissed.