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2007 DIGILAW 1284 (PAT)

Kaushal Kumar v. Ram Kishore Prasad

2007-08-06

REKHA KUMARI

body2007
Judgment 1. This appeal is directed against the order dated 23.9.2003 passed by the 3rd Addl. District Judge, Patna in Revocation Case No. 81/2002 whereby he has set aside the order dated 22.3.2002 passed in Succession Case No. 116/2001 granting succession certificate to the appellant Kaushal Kumar in respect of a sum of Rs. 1,94,763/- lying in deposit in the account of late Naulaso Kuer, wife of late Ramchandra Singh, Mohalla Salempur Dumra, Patna. 2. It appears that after the death of the said Naulaso Kuer the appellant filed an application for grant of succession certificate in his favour in respect of the above amount. His case therein was that Ramchandra Singh, the husband of Naulaso Kuer had predeceased her. She died issueless. Ramchandra Singh had only one brother late Shivnath Singh, who had four sons including Saligram Singh and he is son of Saligram Singh. He performed the Sharadh of Naulaso Kuer as her grandson. Naulaso Kuer left behind Rs. 1,94,763/- in her S.B. account in the State Bank of India, Raja Bazar. There is no other legal heir of Naulaso Kuer besides him and other near relatives named in the petition. Therefore, there was no impediment in granting succession certificate to him. In the petition it was also mentioned that the deceased was residing at Salempur Dumra and she died there and one Ram Kishore Prasad (respondent in this appeal) is tenant in the house of the deceased, who alone was present in the house at the time of her death and he removed all the papers relating to the aforesaid deposits. 3. After filing of the petition, the petition was registered as Succession Case No. 116/2001. The petitioner (appellant) examined witnesses and the learned Addl. District Judge XII, Patna by the order dated 22.3.2002 allowed the prayer to grant succession to the appellant. On 8.5.2002 the respondent Ram Kishore Prasad filed a petition for revocation of that order contending, inter alia, that Kaushal Kumar was not a legal heir of Naulaso Kuer. The geneology given by him in his application for Succession certificate is false and concocted. He (respondent) alone was her heir being son of her sister. He had been residing with the deceased and had been looking after her. Kaushal Kumar intentionally did not make him a party in this case and he came to know the order of grant of succession certificate on 1.5.2002. He (respondent) alone was her heir being son of her sister. He had been residing with the deceased and had been looking after her. Kaushal Kumar intentionally did not make him a party in this case and he came to know the order of grant of succession certificate on 1.5.2002. 4. The appellant filed a rejoinder to the above revocation petition stating, inter alia, that Ram Kishore Prasad is a stranger to the family. He is not son of any sister of the deceased. He has not even mentioned the name of the sister of the deceased. He (appellant) is heir of husband of the deceased and was entitled to the amount. General citation was also made in the succession case, but nobody appeared to contest his claim. He performed the last rite of the deceased at Bansghat, Patna and obtained the death certificate. There is no ground to revoke the order granting succession certificate to him. It is also mentioned in the rejoinder that the deceased originally belonged to village Samsua, P.S. Belaganj, District Gaya, but in 1971 she shifted to Salempur Dumra and no one is alive in her maternal side. 5. The respondent examined four witnesses including himself (A.W. 3). He also filed Post-cards (Exts. 1 to 1/6), prescriptions (Ext. 2), ration-card (Ext. 3) to show her relationship with the deceased. The appellant examined two witnesses besides himself (O.P.W. 1).The learned Addl. District Judge after considering the evidence on record passed the impugned order. 6. Learned counsel for the appellant submitted that the respondent has failed to prove that he was sisters son of the deceased. The documents filed by him do not show that he was the sisters son. He has also failed to disprove that the appellant was grandson of the brother of the husband of the deceased. He further submitted that even if it be assumed that the respondent was the sisters son of the deceased, he was not heir according to Hindu Succession Act and so, no special notice was required for him. There is, thus, no case of any suppression of any material fact or making of false suggestion. 7. He further submitted that even if it be assumed that the respondent was the sisters son of the deceased, he was not heir according to Hindu Succession Act and so, no special notice was required for him. There is, thus, no case of any suppression of any material fact or making of false suggestion. 7. Learned counsel for the respondent defended the order and further submitted that the respondent was a legal heir but as he -was not made a party, the appellant thus had suppressed the material fact and the impugned order granting succession certificate has been correctly set aside. 8. Among the witnesses examined by the respondent, A.W. 1 has stated that Ram Kishore Prased (respondent) lived with Naulaso Kuer and looked after her. Ram Kishore Prasad used to address her as Mausi. He is son of her sister. A.Ws. 2 and 4 have also stated to the same effect. A.W. 3 has stated that the deceased was his Mausi. She had no issue. He used to live with her, and she used to call him as son. He used to look after her. He had performed the Sharadh of the deceased. Kaushal Kumar (appellant) never looked after her and she has no right on the property of the deceased. He was not living in the house of the deceased as tenant. He also denied that the appellant had performed Sharadh ceremony of the deceased. 9. O.P.W. 1 has stated that the deceased was his grandmother. She used to live in Raja Bazar. She had no issue. Her husband Ramchandra Singh had only one brother Sheonath Singh and he is the son of one of the four sons of Srinath Singh. He has further stated that the respondent used to live in the house of the deceased as tenant. He has denied that the respondent was a member of the family of the deceased. 10. O.P.W. 2 has stated that the deceased was aunt of Shaligram Singh (father of the appellant) and that the respondent was a tenant in the house of the deceased and was not related to her. 11. Thus, it appears that both the parties have led evidence in support of their cases. But though the respondent examined A.Ws. 10. O.P.W. 2 has stated that the deceased was aunt of Shaligram Singh (father of the appellant) and that the respondent was a tenant in the house of the deceased and was not related to her. 11. Thus, it appears that both the parties have led evidence in support of their cases. But though the respondent examined A.Ws. 1, 2, 4 to prove that the deceased was Mausi of the respondent, from their cross-examination it does not appear that they were competent witnesses on the point of relationship. They have also not denied that the appellant was the grandson of the brother of the husband of the deceased. Then, though the respondent has stated that the deceased was his Mausi, he has not stated his relation or any relation of his mother with the deceased. The documents filed by the respondent though show that the respondent used to call the deceased as Mausi and he had got her treated and he used to live with her it did not disclose the relationship between two. As the deceased was living alone and the respondent was living with him, it is quite probable that though he was a tenant, one ration-card was prepared treating them to be members of one family and as the deceased was an elderly lady she was being addressed by the respondent as Mausi. 12. He (respondent), on the other hand, has admitted in evidence that he had called the appellant to lit pyre of the deceased at the time of her death. He also admitted that Saligram Singh (father of the appellant) was cousin of.the husband of the deceased. Therefore, the evidence of the respondent itself proved that the appellant was the grandson of the brother of the husband of the deceased as stated by O.P.W. 1. 13. Therefore, from the evidence adduced by the respondent, it is not proved that the respondent is the son of the sister of the deceased, whereas from the evidence adduced by the parties it is proved that the appellant is the grandson of the brother of the husband of the deceased. 14. It is also an admitted position that the deceased was issueless and her husband had predeceased her. Therefore, upon her death the appellant had interest in the property, whereas the respondent being stranger had no interest in the property left by the deceased. 14. It is also an admitted position that the deceased was issueless and her husband had predeceased her. Therefore, upon her death the appellant had interest in the property, whereas the respondent being stranger had no interest in the property left by the deceased. He (respondent) was thus not entitled to be made party in the succession case filed by the appellant but on that ground it cannot be said that any fraud was played by the appellant in obtaining the order of succession certificate. Besides this, even if it is assumed that the respondent is the son of the sister of the deceased, under sec. 15 of the Hindu Succession Act the appellant was entitled to inherit the property in preference to the respondent. There was, thus, no reason to revoke the succession certificate granted in favour of the appellant. It appears that the learned A.D.J, without properly appreciating the evidence passed the impugned order. 15. Accordingly, this appeal is allowed and the impugned order is set aside.