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Andhra High Court · body

2007 DIGILAW 171 (AP)

Vusikala Kanaka Laxmi v. Vusikala Yellamma

2007-02-19

P.S.NARAYANA

body2007
Judgment :- Second respondent in O.P.No.876 of 194 on the file of the District Judge,Khammam, had preferred the present civil miscellaneous appeal. Respondent herein filed O.P.No.876 of 1994 on the file of the District Judge, Khammam, under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to in short as 'the Act' for the purpose of convenience) claiming herself as the mother of the deceased Veeraswamy praying for issuance of succession certificate for the death benefits payable on account of the death of Veeraswamy. The learned judge recorded the evidence of P.Ws.1 and 2,. Ws.1 to 5, marked Exs.A-1 to A-9, Exs.B-1 to B-16 and also Exs.X-1 to X-4 and ultimately came to the conclusion that the respondent herein, the petitioner in the O.P., to be paid half of the amount as per the succession certificate already issued and the appellant herein, the second respondent in the O.P., to establish her claim as legally wedded wife of Veeraswamy within six months by approaching appropriate court and to get necessary temporary interim orders or final orders from that court and if she fails to establish or to get any such order, the balance of the amount also shall be paid to the respondent herein, the petitioner in O.P., and in case she gets an order in her favour as legally wedded wife, she was entitled to the other half of the amount. 2. Sri P. Prabhakar Rao, learned counsel representing the appellant would contend that there is clear proof relating to the status of the appellant as wife of the deceased Veeraswamy, whereas, the status of the respondent, as the mother of the deceased Veeraswamy, is highly doubtful. The learned counsel also pointed out to the oral evidence available on record and would submit that in the light of the same to make such a conditional order in granting succession certificate may not be just and proper and it would be appropriate if both the parties are driven to the civil court or in the alternative there could have adeclaration even in favour of the wife and instead recording such findings cannot be sustained. 3. 3. Per contra, Sri R.Kameswara Rao, learned counsel representing the respondent would submit that in fact, succession certificate was issued and subsequent thereto the same was reopened by filing an application in I.A.No.1704 of 1995 and the present appellant was impleaded as R-2 in the O.P. and in the light of the clear evidence available on record the status of respondent in the appeal, the petitioner in the O.P., as mother of the deceased Veeraswamy, cannot be doubted. 4. Heard the counsel. 5. The following points arise for consideration in this civil miscellaneous appeal. 1. Whether the findings recorded by the learned judge in the facts and circumstances to be confirmed or to be disturbed? 2. Whether the relief granted in the O.P. can be said to be just and proper in the facts and circumstances of the case? 3. If so, to what relief the parties would be entitled to? 6. POINT Nos.1 and 2: For the purpose of convenience, the parties hereinafter would be referred to as petitioner and second respondent as arrayed in O.P.No.876 of 1994 on the file of the District Judge, Khammam. 7. The petitioner filed the said O.P. praying for issuance of succession certificate for the death benefits payable on account of the death of Veeraswamy. It is her case that the deceased Veeraswamy died on 24.9.1992 leaving behind him the petitioner alone as the sole heir for the benefits. It is her specific case that she was the mother of the Veeraswamy, who was working as a cable boy in the open cast in S.C. Co., Ltd., Yellandu area and hence she was entitled to receive the entire benefits lying in the name of the deceased. Her specific case is that the deceased had no wife and children and the wife of the deceased and the father also died and except the petitioner, no other dependants are there and the deceased also were not having any brothers or sisters and she had also furnished particulars of the amounts lying in the name of the deceased and made a claim for issuance of succession certificate. 8. 8. The second respondent filed a counter denying the status of the petitioner as the mother and specific stand had been taken that she has nothing to do with the family of the deceased Veeraswamy and further specific stand had been taken that she being the wife and the legal heir would be entitled to all the benefits of her husband. She had also stated that she was the legally wedded wife of the Veeraswamy and Veeraswamy married her in Seetha Ramachandra Temple, Bhadrachalam, as per Hindu rites and customs and she had also stated that she filed M.C.No.34 of 1992 on the file of the Judicial Magistrate of First Class, Yellandu. The drawing officer used to pay the amount to her monthly up to the death of her husband Veeraswamy. 9. On the strength of these pleadings P.Ws.1 and 2 were examined on behalf of the petitioner and on behalf of the second respondent, the appellant herein, R.Ws.1 to 5 were examined, Exs.A-1 to A-9, Exs.B-1 to B-16 and Exs.X-1 to X-4 were marked. The learned judge framed the following points for consideration. 1. Whether the petitioner is a legal heir and entitled to get succession certificate? 2. Whether the 2nd respondent is the legally wedded wife of late V. Veeraswamy and she is entitled to succession certificate as claimed by her? 10. The evidence of P.W.1 is that she is the mother of the deceased Veeraswamy and her husband died already and she had deposed about the death of Veeraswamy and had taken further stand that the daughter-in-law also died and except herself, there are no other legal heirs to succeed to the terminal benefits payable to the deceased Veeraswamy. She also deposed that he died committing suicide by strangulation and she had also filed family particulars of Veeraswamy issued by Welfare Officer, J.K.O.C., Yellandu, and Ex.A-1. She had also deposed about Ex.A-2 post-mortem report (Xerox copy). The Welfare Officer issued a book showing particulars of the family members of the deceased, Ex.A-3; the post- mortem report Ex.A-4. She had also denied the relationship of Veeraswamy with the second respondent-appellant herein. This witness also deposed that she does not know whether Kanakalakshmi filed a petition in M.C.No.34 of 1996 on the file of Yellandu Munsiff Magistrate Court. 11. She had also denied the relationship of Veeraswamy with the second respondent-appellant herein. This witness also deposed that she does not know whether Kanakalakshmi filed a petition in M.C.No.34 of 1996 on the file of Yellandu Munsiff Magistrate Court. 11. P.W.2 is the Welfare Officer, who deposed that Veeraswamy worked in their institution and Veeraswamy disclosed the family particulars and as per the records maintained by them Veeraswamy got a wife Vajramma, mother Yellamma and father Nanaiah. The Xerox copy of it was marked as Ex.A-5. This witness had also deposed that they maintained nomination forms towards contribution funds and the ultimate beneficiaries and in that, it was shown beneficiary Vajramma was the wife of Veeraswamy and the same was marked as Ex.A-7. The death certificate was Ex.A-8. This witness had also deposed that one Kanakalakshmi made a claim as beneficiary and they prepared a note with reference to the records and the details of it were Ex.A-9. This witness admitted that as per the directions in M.C.No.34 of 1992, they were sending maintenance of Rs.200/- per month to R-2. 12. As against this evidence of P.Ws.1 and 2 and Exs.A-1 to A-9, R.W.1, the second respondent-the appellant herein, deposed that her husband Veeraswamy died by committing suicide and he was an employee in S.C. Co., Yellandu area. She admitted that Vajramma was the first wife of Veeraswamy and Veeraswamy married her at Bhadrachalam Seetharamachandra Swamy temple about 9 years ago. She filed the certificate of marriage also. After the marriage they lived happily, but later due to misunderstandings between her and her husband she filed a petition seeking maintenance. G.Mallaiah and Lalaiah arranged the marriage between her and her husband. Ex.B-1 was the letter issued by the temple authorities, Bhadrachalam. Ex.B-2 was the identity card by Munsif Magistrate, Yellandu.Exs.B-3 to B-14 were the photos taken at the time of their marriage along with negatives. Ex.B-15 was the order of the Judicial Magistrate of First Class, Yellandu in M.C.No.34 of 1992. She was cross-examined at length and several suggestions put to her had been denied. 13. W.2 is the Record Assistant in Sri Seetharamachandra Swamy Devasthanam, Bhadrachalam, who brought the records and according to him the marriage of Kanakalakshmi and Veeraswamy had taken place and both the parents signed on the application form and on the register by affixing thumb impressions. The wedding chit prepared also enclosed to the application. 13. W.2 is the Record Assistant in Sri Seetharamachandra Swamy Devasthanam, Bhadrachalam, who brought the records and according to him the marriage of Kanakalakshmi and Veeraswamy had taken place and both the parents signed on the application form and on the register by affixing thumb impressions. The wedding chit prepared also enclosed to the application. These documents were marked as Exs.X-1 and X-2. The receipt given for the marriage was marked as Ex.X-3. The sealed certified copy of the marriage was marked as Ex.X-4. 14. R.W.3-Mallaiah deposed that he knows both Veeraswamy and Kanakalakshmi. After the death of first wife Vajramma, Kanakalakshmi married Veeraswamy. This witness also was cross-examined. 15. R.W.4 is the junior paternal uncle of Veeraswamy and according to him one Bhadramma was the mother of the Veeraswamy and she died when Veeraswamy was infant. The first wife of Veeraswamy was Vajramma and she died. After her death Veeraswamy married Kanakalakshmi at Bhadrachalam Sree Ramachandra Swamy temple.There are no other heirs except Kanakalakshmi to Veeraswamy. 16. R.W.5 also deposed that Kanakalakshmi and Veeraswamy lived as husband and wife. 17. Strong reliance was placed on the evidence of R.W.4 to the effect that a close relative of Veeraswamy had specifically deposed that the petitioner-respondent in the present civil miscellaneous appeal is not the mother of Veeraswamy. It may be that R.W.4 may be a close relative, but the evidence of P.W.2, the Welfare Officer, and the records produced by him had been taken into consideration and findings had been recorded. It is also equally true that the stand taken by the appellant, as second respondent in the O.P., also cannot be said to be totally baseless. There is evidence available on record and in fact apart from the clear evidence of R.Ws.1 to 5 and also Ex.B-7, the letter issued by the Executive Officer, Bhadrachalam and Ex.B-2, the identity card, Ex.B-15, the certified copy of the order in M.C.No.34 of 1992 on the file of the Judicial Magistrate of First Class, Yellandu, would clearly go to show that these parties were living as husband and wife and may be due to some differences she had obtained an order in M.C.No.34 of 1992 and there is an admission made by P.W.2 also that the company had deducted some amounts and making such amounts as per the directions. Exs.X-1 to X-4 also in a way supported the stand taken by the wife of Veeraswamy, alleged to be the wife of Veeraswamy, which is put into issue by the petitioner in the O.P., the respondent in this civil miscellaneous appeal. It may be true that Vajramma could have been the first wife of Veeraswamy. 18. On over all appreciation of the facts and circumstances, this court is of the considered opinion that there is ample evidence available on record to show that the deceased Veeraswamy had left behind him the mother Yellamma and after the death of Vajramma, the said Veeraswamy married Kanakalakshmi, the appellant herein. This Court also is satisfied that may be due to the bad weather between the mother-in-law and daughter-in-law this litigation is being fought. For certain reasons, R.W.1 might have deposed in a particular fashion, this court is not interested in dwelling on this question. Further, may be due to some family differences or otherwise, certain witnesses may depose in a particular fashion. 19. In the light of the clear documentary evidence when ample evidence had been placed by the appellant also, may be the issuance of succession certificate be a summary proceeding, it would not be just and proper to drive the wife to a competent civil court declaring the status of the mother only. In the event of the court, in a summary proceeding, coming to the conclusion or entertaining a doubt about the status of both the mother and wife, both could have been driven to a competent civil court or the rights could have been declared in the light of the evidence available on record. 20. In view of the facts and circumstances, inasmuch as the O.P. itself was filed in the year 1994, it would not be just and proper to drive these parties again to a competent civil court. Since both the parties had placed ample evidence, though this is a summary proceeding, in view of the same, this court is of the considered opinion that the direction of driving the second wife, whose marriage was celebrated after the death of first wife Vajramma, may not be just and proper and accordingly this court hereby declares that both Kanakalakshmi and Yellamma, the wife and the mother of deceased Veeraswamy are entitled to succeed to the benefits in controversy. This Court is making this order to put an end of this controversy, since the dispute clearly appears to be between the mother-in-law and the daughter-in-law. It is stated that inasmuch as both these are Class-I heirs both will be entitled to equal shares. 21. Accordingly, the civil miscellaneous appeal is partly allowed to the extent indicated above modifying only to the extent directing the wife to approach a civil court and it is further declared that both these wife and mother of the deceased Veeraswamy would be entitled to the equal shares of the benefits, the subject matter of the O.P. and the present civil miscellaneous appeal. No order as to costs.