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2006 DIGILAW 391 (CHH)

BHAGWAT PURI GOSWAMI v. OMPRAKASH SUROJIYA

2006-08-04

S.K.SINHA

body2006
ORDER Sunil Kumar Sinha, J. 1. This appeal is directed against the common order dated 08.01.1993 passed in Succession Certificate Case No.5/1991 and 6/1991 by the Addl. Judge to the Court of District Judge, Kanker (Bastar). By the said order, the application filed by the appellants for issuance of succession certificate vide case NO.6/1991 was dismissed and the application filed by respondent vide case No. 5/1991 was allowed. 2. The brief facts are that the respondent, filed an application for issuance of succession certificate on account of death of his wife namely Smt. Vimla Goswami, who was working as an Assistant Teacher in a Government School. The contention of the respondent was that since the deceased was legally wedded wife of this respondent and she died issueless, the respondent was the only legal heir to succeed the estate of the deceased, therefore, a certificate u/s 372 of the Indian Succession Act be issued in his favour. The appellants, who are the parents of the deceased, also made their claim for issuance of succession certificate interalia pleading that since the deceased was married with some other person and was divorced, therefore, on the date of her death, no one except them were her successors, hence, the certificate should be issued in their favour. In fact, they denied the relationship of hush and wife between the respondent and the deceased. 3. The learned Succession Court decided both these cases simultaneously by the said common order and held that the deceased was the legally wedded wife of the respondent and the respondent being the husband and successor of the deceased, excluding the rights of the appellants, was entitled for issuance of a succession certificate in his favour and it was ordered accordingly. 4. Learned counsel for the appellants argued that a valid marriage between the deceased and respondent has not been proved in this case and in absence of such a proof, the respondent was not entitled for grant of succession certificate and the certificate should have been ordered to be granted in favour of the appellants. 5. A perusal of the records would show that for proving the factum of valid marriage, the respondent has examined himself as A.W.1. He has stated that the deceased was his legally married wife. The marriage between them was solemnized in the house of his brother-in-law (Jija) in village Kanhanpuri, P.S. Narharpur. 5. A perusal of the records would show that for proving the factum of valid marriage, the respondent has examined himself as A.W.1. He has stated that the deceased was his legally married wife. The marriage between them was solemnized in the house of his brother-in-law (Jija) in village Kanhanpuri, P.S. Narharpur. The name of his brother-in-law is Budh Ram Prayag. He has further stated that this marriage was performed by a priest namely Ram Sevak Dubey who was a resident of village Markatola and in this marriage, Darbari Ram, lame Ram Chakradhari and few other persons were also present. He has stated that the marriage was performed according to the Hindu customs and it was performed in witness of fire after walking 7 rounds around the fire (Agnivedi). It is also stated that after the marriage, he was residing along with the deceased in village Patod P.S. Kanker in a rented house of one Ram Chandra Nag, as the deceased was working as an Assistant Teacher in primary school, Patod. It has also come in the evidence that the deceased was a divorcee. She was earlier married to one Tejeswar Puri and after her divorce with her first husband, this was her second marriage. It comes in the impugned order that the factum of divorce was not disputed by the parties as the decree for divorce was passed by the indulgence of tile District Court and a copy of the decree was also filed as Ex.P.3. Though many questions have been asked in the cross-examination of this witness, but his testimony could not be assailed, Rather it comes in the cross examination that in the marriage ceremony, Saptapadi which is the essential custom of the valid Hindu marriage was also performed. Another witness namely Ram Sevak Dubey was also examined as A.W.2. He has stated that as a priest he had performed the marriage ceremony of respondent Omprakash with the deceased on 25.3.1990 in village Kanhanpuri in the house of sister of Om prakash. He has also mentioned the name of the sister as Smt. Rukmani. His evidence would show that Saptapadi etc., were also done in the said marriage and nothing adverse has been brought in his cross-examination regarding solemnization of a valid marriage. He has also mentioned the name of the sister as Smt. Rukmani. His evidence would show that Saptapadi etc., were also done in the said marriage and nothing adverse has been brought in his cross-examination regarding solemnization of a valid marriage. Another witness namely Darbari Ram has also been examined as A.W.3 who also supported the factum of marriage as has been stated by A.W.1 and A.W.2. 6. In rebuttal, the appellant Bhagwat Puri Goswanu examined him self who stated that after the divorce from the first husband, Vimla Bai had never married with the respondent Omprakash. Another witness namely Revendra Puri was also examined by the appellants who also denied the factum of marriage. He appears to be the brother of the first husband of Vimla Bai. He has stated that Vimla Bai had never spoken to him that she has performed a second marriage after her divorce. The evidence of this witness appears to be irrelevant. Why Vimla Bai would tell him that she has perforn1ed a second marriage when on the basis of strained relations between the husband and wife, a decree of divorce was passed between them. There appears to be no reason for the deceased to maintain relations with the family members of her first husband and in normal course, it does not appear to be reasonable that a divorced wife will remain in such cordial relation with the brother of the husband so as to tell him about the happenings of her personal life. So far as the evidence of the father is concerned, it is also a negative evidence on the point of factum of marriage. It has come in the evidence that after the divorce, the deceased was living separately from her parents and she developed some affairs with the respondent, as a consequence of which, both performed marriage in the house of brother-in-law of respondent. It appears that the factum of marriage was not communicated to the parents as the relations between the daughter and the parents were not so cordial. 7. Another important piece of evidence is the dying declaration of the deceased which was recorded during the course of investigation of merg no. 14/ 91. A.W.4, Ashok Kumar Pimpre, who was the officer-in-charge of the Police Station and was summoned in the court alongwith the case diary of the said merg, has submitted the dying declaration in the Court. 7. Another important piece of evidence is the dying declaration of the deceased which was recorded during the course of investigation of merg no. 14/ 91. A.W.4, Ashok Kumar Pimpre, who was the officer-in-charge of the Police Station and was summoned in the court alongwith the case diary of the said merg, has submitted the dying declaration in the Court. A.W.5, Shri A Kujur, who was the Executive Magistrate, Kanker, has proved the dying declaration (Ex.P.4). He has stated that according to his judgment, the deceased was in a position to make statement before him and the statement recorded by him was the same as stated by the deceased. The contents of the dying declaration Ex.P.4 would show that in reply to the very second question asked by the Executive Magistrate as to what is the name of her husband, she has stated that the name of her husband is Omprakash. Many other questions have also been asked to her and the reply thereof would show that a natural statement was made by the deceased in the said dying declaration dt. 10.3.1991. Though the mention of the te1ationship in the dying declaration is not a conclusive proof of it, but the declaration so made before the Magistrate, which was admissible u/s 32 of the Evidence Act, is suggestive of the fact that the deceased who was on the death bed, and was taking her last breath had admitted that the respondent was her husband. In light of the above evidence brought on record- by the respondent, the appellants have only brought oral evidence of denial and have tried to rebut the factum of valid marriage pleaded by the respondent. 8. In the opinion of this court, the trial Court has not erred in appreciation of the evidence and in coming to the conclusion that the deceased was the legally married wife of the respondent and the respondent was entitled to succeed the estate of the deceased and was also entitled for grant of a succession certificate in his favour u/s 372 of the Indian Succession Act. There appears to he no illegality in the order passed by the Succession Court. 9. The appeal has no merits and the same is dismissed. However, there shall be no orders as to the costs.