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2012 DIGILAW 123 (AP)

Mangilipalli Parvathamma v. Anjamma

2012-02-03

R.KANTHA RAO

body2012
Judgment : 1. This C.M.S.A. arises out of a common judgment dated 13.5.2010 passed by the Principal District Judge, Nalgonda, in C.M.A. No.1 of 2008 and C.M.A. No.9 of 2010. 2. I have heard the learned counsel appearing for the appellant. There is no representation for the respondents. 3. For the sake of convenience I would like to refer the parties as petitioner and respondents i.e., as they were originally arrayed in the succession O.P. filed before the learned trial court. 4. Mangilipalli Lingaiah hereinafter called the deceased was working as Head Master in Boinapally Primary School, Kanagal Mandal, Nalgonda District. He died on 28.7.2002. There was a dispute relating to his death benefits between the contesting parties to the case. The petition O.P. No.9 of 2002 was filed before the trial court under Section 372 of the Indian Succession Act seeking a succession certificate. Respondents 1 and 7 opposed the said petition. Respondent No.1 claimed to be the wife of the deceased and respondent No.7 claimed to be her daughter born through the deceased. 5. The specific contention of respondents 1 and 7 is that there was a customary divorce between the deceased and the petitioner and thereafter the deceased married the first respondent and through her 7th respondent was born to him. They contended in the counter that in the service record of the deceased first respondent’s name was mentioned and that the deceased admitted his daughter R-7 in the school mentioning before the school authorities that he is the father of R-7. They further contended that the Mandal Revenue Officer, Nakrekal, also issued a legal heir certificate by showing R-1 and R-7 as wife and daughter of the deceased respectively. Thus, their contention before the trial court was that only they are entitled for the death benefits of the deceased. 6. Before the trial court, P.W.1 was examined and Exs.A-1 to A-6 were marked on behalf of the petitioner. On behalf of the respondents R.W.1 was examined and Exs.R-1 to R-3 were marked. 7. The trial court after making an enquiry into the petition filed under Section 372 of the Indian Succession Act by the petitioner, by order dated 01.10.2007 directed to issue succession certificate in favour of the petitioner and respondents 6 and 7. Against the said order, the petitioner filed C.M.A. No.1 of 2008 and respondent No.1 filed C.M.A. No.9 of 2010. 8. Against the said order, the petitioner filed C.M.A. No.1 of 2008 and respondent No.1 filed C.M.A. No.9 of 2010. 8. The learned appellate court confirmed the order passed by the trial court and dismissed both the C.M.As. Feeling aggrieved, the petitioner filed the present C.M.S.A. 9. The substantial questions of law involved for consideration in the C.M.S.A. basing on which it is admitted are the following: (1) Respondents 1 and 7 failed to prove the marriage of respondent No.1 with the deceased Lingaiah. The trial court ought not to have considered respondent No.7 as legal heir of the deceased. (2) The court below ought to have considered that the burden to prove the divorce between the appellant (petitioner) and late Mangilipalli Lingaiah is on respondents 1 and 7. 10. It is true that respondents 1 and 7 did not adduce evidence in proof of solemnization of marriage between the deceased and the first respondent. However, in the legal heir certificate, Ex.A-1, issued by the Mandal Revenue Officer, Nakrekal, it is mentioned that respondent No.1 is the second wife of the deceased Lingaiah and respondent No.7 is the second wife’s daughter. The learned appellate court relied on the judgment in Vidhyadhari & others V. Sukhrana Bai & others (2008) 2 SCC 238 wherein it is held that when the second wife and the deceased lived together for a considerable length of time and both children were born to them, the High Court was not justified in refusing succession certificate to the second wife and held that in the present case legal heir certificate filed by the petitioner itself showed that the first respondent is the second wife of the deceased and respondent No.7 is the second wife’s daughter. The said fact can be taken into consideration to hold that even though there is no valid marriage between the first respondent and the deceased, they lived together as man and wife for a considerable length of time and therefore the second respondent is entitled for a succession certificate. Ultimately the learned appellate court confirmed the order passed by the trial court issuing succession certificate in favour of the petitioner, the first wife, respondent No.6, the mother and respondent No.7, the daughter of the deceased born through respondent No.1. 11. I absolutely see no illegality or irregularity in the order passed by the appellate court. Ultimately the learned appellate court confirmed the order passed by the trial court issuing succession certificate in favour of the petitioner, the first wife, respondent No.6, the mother and respondent No.7, the daughter of the deceased born through respondent No.1. 11. I absolutely see no illegality or irregularity in the order passed by the appellate court. The C.M.S.A. is devoid of any merit and the same is accordingly dismissed. There shall be no order as to costs.