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2008 DIGILAW 531 (UTT)

SANTOSH GUPTA v. VIMLA DEVI

2008-11-26

PRAFULLA C.PANT

body2008
JUDGMENT This appeal, preferred under Section 384 of Indian Succession Act, 1925, is directed against the order dated 12.07.2004, passed by Ist Fast Track Court/Additional District Judge, Nainital, in Succession Case No. 31 of 1993, whereby the application for issuance of succession certificate moved by the applicants/appellants, is rejected. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case are that applicant/appellant Santosh Gutpa is resident of Mohalla Kanoongoyan, Kashipur, District Nainital (Now part of District Udham Singh Nagar), who moved an application under Section 372 of Indian Succession Act, 1925, after death of Jay Prakash Gupta for release of encashment of earned leave of the deceased. She claimed herself to be widow of the deceased. She further claimed that she got married to Jay Prakash Gupta on 08.04.1974. It is pleaded by her that at the time of her marriage with Jay Prakash Gupta, she was widow and from her first husband she had a son named Kapil Gupta, who was adopted as son by Jay Prakash Gupta. Thereafter, the applicant/appellant gave birth to another child namely Rajiv Kumar Gupta (appellant no. 2), born out of the wedlock with Jay Prakash Gupta. She has further stated that she had already received the Insurance money and the Government Provident Fund (for short G.P.F.) money of the deceased, as she was his nominee. She has further stated that she was also getting family pension till 30th September 1993. However, thereafter Vimla Devi (respondent)moved an application before Superintendent Engineer, Upper Ganga Canal, Irrigation Department, Haridwar, claiming herself to be the widow of the deceased and seeking payment of family pension. Thereafter, Santosh Gupta received a communication from the Executive Engineer of said Department that she would not be getting family pension unless she produced succession certificate. This gave Santosh Gupta cause to move the application for succession certificate, which is rejected by the trial court at Nainital. 4. The respondent Vimla Devi contested the proceedings of succession certificate sought by the appellant no. 1. She further brought to the notice of the court that she (Vimla Devi) had already moved an application for succession certificate in her favour from Civil Judge (Senior Division), Bijnor, and has been issued succession certificate in her favour on 11.09.1994. 5. 4. The respondent Vimla Devi contested the proceedings of succession certificate sought by the appellant no. 1. She further brought to the notice of the court that she (Vimla Devi) had already moved an application for succession certificate in her favour from Civil Judge (Senior Division), Bijnor, and has been issued succession certificate in her favour on 11.09.1994. 5. It appears that Santosh Gupta (appellant No. 1), thereafter, moved an application under Section 383 of Indian Succession Act, 1925, for rejection of said succession certificates before the Civil Judge (Senior Division), Bijnor, which was allowed. On this Vimla Devi filed an appeal before the District Judge, Bijnor, who allowed the appeal (Misc. Appeal No. 114 of 1996) and affirmed the issuance of succession certificate in favour of Vimla Devi on 18-12-1997. Finally Santosh Gupta (appellant no. 1) filed Writ Petition No. 111 of 1998 before Allahabad High Court. Vide order dated 02.04.1999, the said Court while dismissing the stay vacation application observed that the District Judge, Bijnor, had jurisdiction to issue succession certificate as the deceased was ordinarily resident of said district and his property situated there. The Allahabad High Court further observed that there is categorical finding of the court at Bijnor that there is no dispute as to the fact that deceased Jay Prakash Gupta has resided in Shahpur Kheri, District Bijnor, where he had immovable property. Apart from this, the Allahabad High Court further observed that there is positive finding that Vimla Devi was legally wedded wife of the deceased Jay Prakash Gupta and she was not divorced by him (before Smt. Santosh Gupta started living with deceased Jay Prakash Gupta), as such, the court at Bijnor had prima facie committed no error of law in issuing succession certificate in favour of Vimla Devi. 6. As far as release of amount relating to G.P.F. and insurance are concerned, since the sum are paid to Santosh Gupta (appellant no. 1), as she was nominee of the deceased, payment made by the State authorities in her favour cannot be said to be illegal. However, as to the remaining amount for which two persons started claiming family pension, the authorities rightly asked them to produce succession certificate. 1), as she was nominee of the deceased, payment made by the State authorities in her favour cannot be said to be illegal. However, as to the remaining amount for which two persons started claiming family pension, the authorities rightly asked them to produce succession certificate. Since a succession by the competent authority which has been affirmed by the appellate court and the matter is sub judice before the Allahabad High Court in Writ Petition No. 111 of 1998, it is not desirable to issue succession certificate, in respect of same amount in favour of the appellant no. 1 (Santosh Gupta), as it will create problem for the authorities concerned to release the amount as in that situation two persons will be claiming same about on the basis of two different succession certificates. It is pertinent to mention here that proceedings under Indian Succession Act, 1925, relating to succession certificate are summary in nature and it only discharges the third party as to the payment of money of the deceased person. It is only the regular civil court who can decide right of inheritance. 7. For the reasons as discussed above, the impugned judgment and order dated 12.07.2004, passed by the trial court (Additional District Judge/Ist Fast Track Court, Nainital), in Succession Case No. 31 of 1993, declining to issue succession certificate in favour of Santosh Gupta (appellant no. 1), needs no interference. Therefore, this appeal is liable to be dismissed. The same is dismissed.