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2008 DIGILAW 530 (CAL)

Suniti Banerjee v. Champa Alias Sanghamitra Banerjee

2008-05-13

PRASENJIT MANDAL

body2008
Judgment : PRASENJIT MANDAL, J. (1). THIS application under Article 227 of the constitution of India is directed against the order no. 8 dated 24. 08. 2006 passed by the learned Additional District Judge, Fast track Second Court, Chandannagore in Misc. Appeal No. 15 of 2006 whereby he has confirmed the order of dismissal of the Misc. Case no. 104 of 2002 (under Act, 39 ). (2). THE fact of the case in short is that the applicants filed one application for granting a succession certificate for collecting the entire dues and family pension of the deceased, partha Banerjee, Ex Store Cashier/re/ranchi under Section 372 of the Indian Succession Act, 1925 against the opposite parties. In that misc. case, the opposite parties appeared and contested. The learned District Delegate, Chandannagore dismissed the case and then the applicants preferred a misc. appeal before the learned additional District Judge, Hooghly who was pleased to remand the matter for hearing afresh. Then upon hearing both the sides, the learned District Delegate, Chandannagore rejected the misc. case again holding that the applicants have no locus standi to apply for a succession certificate. The misc. appeal preferred by the applicants against the order of the learned District Delegate was dismissed by the learned Additional District Judge, Fast Track second Court by the impugned order. So the applicants have preferred the present application. (3). HAVING considered the submissions of the learned Advocate of both the sides and the materials on record, I find that it is an admitted position that the applicant no. 1 was married to Partha banerjee (since deceased) on 08. 12. 1995 under the Special Marriage act during the subsistence of an earlier marriage between Partha banerjee (since deceased) and the opposite party no. 1 under the hindu Marriage Act held on 24. 05. 1989. It is also an admitted position that Partha Banerjee was an Ex Store Cashier/re/ranchi and he died intestate on 01. 09. 2001 while he was in service. The materials on record show that the opposite party no. 1 filed a divorce petition under Section 13b of the Hindu Marriage Act against Partha Banerjee (since deceased ). That petition was allowed on 19. 09. 2000 resulting thereby the marriage tie between the two had come to an end with effect from that date. The materials on record show that the opposite party no. 1 filed a divorce petition under Section 13b of the Hindu Marriage Act against Partha Banerjee (since deceased ). That petition was allowed on 19. 09. 2000 resulting thereby the marriage tie between the two had come to an end with effect from that date. Admittedly the parents of Partha Banerjee (since deceased) are still alive; but they have not been cited in the application under Section 372 of the Indian Succession Act filed by the applicants and no notice was served upon them. The materials on record also show that the applicant no. 2 is the minor daughter of the applicant no. 1 out of the wedlock between the applicant no. 1 and Partha Banerjee (since deceased ). (4). IN the light of the above observations, I find that the marriage between the applicant no. 1 and Partha Banerjee (since deceased) being void one, the applicant no. 1 cannot claim any succession certificate at all. The learned Advocate for the applicants has submitted that the applicant no. 2, daughter of partha Banerjee (since deceased) being an heir, the applicant no. 1 is entitled to claim the certificate for her daughter but the courts below did not consider such aspects. But I find that the copy of the application has not been annexed to the application and as such it cannot be determined if the applicant no. 1 has claimed the certificate on behalf of the applicant no. 2. The learned District Delegate, Chandannagore has observed that the applicant no. 1 did not claim the certificate on behalf of the applicant no. 2 at all. So I hold that the trial court has rightly rejected the application. (5). IT is apparent that the opposite party no. 1 having suffered a divorce decree on her own initiation cannot claim the properties of the deceased. (6). THE mother of the deceased, Partha Banerjee, is an heir; but she has not been implicated as an opposite party in the application as one heir-cum-relation of the deceased. Nor did the applicant mention her address. No notice had been served upon her at all. The application under Section 372 of the Indian succession Act, 1925 appears to be defective. (7). THE opposite parties have contended that Partha Banerjee (since deceased) died at Asansol. The death certificate filed in the case, I find, supports such contention. Nor did the applicant mention her address. No notice had been served upon her at all. The application under Section 372 of the Indian succession Act, 1925 appears to be defective. (7). THE opposite parties have contended that Partha Banerjee (since deceased) died at Asansol. The death certificate filed in the case, I find, supports such contention. The applicants have simply proved the identity card of the deceased which was disbelieved by the court below on the ground that the identity card is not a convincing paper to believe that Partha Banerjee (since deceased) lived at Chandannagore. The opposite parties have clearly stated in their affidavit in opposition that the deceased Partha Banerjee had been living during his lifetime and till his death permanently at Domohoni Bazar, P. O. and P. S. ? domohoni under P. S. Barabani, District ? Burdwan. Against such affidavit in opposition, the applicants did not file any counter affidavit. Under the above circumstances, I hold that the learned district Delegate, Chandannagore had no jurisdiction to decide over the matter. Therefore, I hold that so far as the jurisdiction of the Court is concerned, the provisions of Section 372 of the Indian Succession Act, 1925 have not been complied with at all. Therefore, the learned Additional District Judge, Fast track Second Court has rightly dismissed the misc. appeal confirming thereby the order passed by the learned District delegate in Misc. Case No. 104 of 2002. So I find nothing to interfere with the impugned orders. This Court exercising revisional jurisdiction is not in a position to interfere with the impugned orders. (8). HOWEVER, as the dues and securities of the deceased are lying with the Chief Project Manager, RE/ranchi I hold that the heirs of the deceased should be given liberty to file an application under section 372 of the Indian Succession Act, 1925 before the competent Court having jurisdiction if they choose to do so. (9). ACCORDINGLY, the application under Article 227 of the constitution of India is dismissed but without any cost. (10). HOWEVER, if any application is filed for a certificate, my above observations/findings will not act as a binding force. The concerned District Delegate will be at liberty to come to its independent findings on the basis of materials placed before it.