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2012 DIGILAW 248 (PAT)

Vijay Kumar v. Nilam Kumari

2012-02-09

SHAILESH KUMAR SINHA

body2012
Judgment Heard learned counsels for the appellant and the appearing respondents. This appeal is directed against the order dated 15.05.2008 passed in Succession Case No. 1 of 2002 passed by the Additional District Judge, Fast Track Court IV, Sheikhpura. The said succession case was filed on behalf of the respondent nos. 1, 2 & 3. In the said Succession Case No. 1 of 2002 another Succession Case No. 3 of 2002 filed by the appellant was amalgamated by order dated 14.09.2005 and thereafter the proceedings in both the succession case continued in which the parties of both the cases participated and adduced evidence in light of their respective pleadings. The filing of the aforesaid succession case occasioned on account of the death of one Rabindra Prasad Singh, who died in harness while working as Head Master in a Government school. The appellant and the respondent no. 4, claimed to be the sons of Late Rabindra Prasad Singh from the first wife namely Shail Devi, filed Succession Case No. 3 of 2002 for receiving the retiral dues and other benefits permissible under the rules on account of the death of their father Late Rabindra Prasad Singh. The respondent no.1 claimed herself to be the second wife of Late Rabindra Prasad Singh who married after the death of his first wife. From the wedlock of the second marriage, the respondent nos. 2 & 3 were born. The appellant and the respondent no.4 on one hand claimed the entire retiral dues and other benefits whereas the respondent nos. 1, 2 & 3 also claimed the retiral dues and other benefits as well being the legal heirs of Late Rabindra Prasad Singh. In the aforesaid succession cases both the parties adduced their evidence. On behalf of the respondent no.1 besides oral evidence, documentary evidences were also brought on record to show that the deceased Rabindra Prasad Singh married the respondent no. 1 on 18.06.1993. The documentary evidences were also brought on record to support the aforesaid claim that she is the legally wedded second wife. On behalf of the appellant oral evidences were adduced to demonstrate that the first wife of Late Rabindra Prasad Singh namely, Shail Devi died on 04.08.1996, however, no documentary evidence were brought on record. 1 on 18.06.1993. The documentary evidences were also brought on record to support the aforesaid claim that she is the legally wedded second wife. On behalf of the appellant oral evidences were adduced to demonstrate that the first wife of Late Rabindra Prasad Singh namely, Shail Devi died on 04.08.1996, however, no documentary evidence were brought on record. The Court below upon considering the oral as also the documentary evidence brought on record concluded that the respondent no.1 is the legally wedded second wife and the respondent nos. 2 & 3 who were opposite parties in the said succession case were the minor children of the deceased and accordingly granted succession in favour of respondent no.1, Neelam Kumari as also other sons and daughter either from the first wife or the second wife as their successor. Mr. Dhananjay Kumar, learned counsel appearing for the appellant submits that the order under appeal suffers from serious illegality on account of non-consideration of the evidences adduced on behalf of the appellant, and as such, the order under appeal deserves to be dismissed. Learned counsel appearing for the respondent nos. 1, 2, 3 & 5 supports the order under appeal and submitted that besides the oral evidence on record adduced on behalf of the respondent there were ample evidence on the record like the sale deeds executed by Late Rabindra Prasad Singh, the genealogical table of Late Rabindra Prasad Singh issued by the concerned Circle Officer, Marriage Certificate and voter list etc. to demonstrate and establish that Neelam Kumari was the legally wedded second wife of the deceased Rabindra Prasad Singh with whom the marriage was solemnized on 18.06.1993. It is further submitted that the evidence of all the parties were appreciated and upon appreciation of the evidences, in absence of any counter evidence to show that who is this Neelam Kumari on behalf of the contesting opposite party, the learned Court below rightly concluded that the said Neelam Kumari is the legally wedded second wife of the deceased Rabindra Prasad Singh and consequently allowed the succession in favour of all the legal heirs/representatives including Neelam Kumari. Having considered the rival submissions of the parties, as noticed above, as also on perusal of the oral evidence as well as the documentary evidence brought on record, as referred above, it would appear upon over all appreciation of the evidence oral as well as documentary it clearly established that the said Neelam Kumari was the legally wedded second wife of the deceased Rabindra Prasad Singh and as such the Court below was right in coming to the conclusion that Neelam Kumari is the legally wedded second wife of the deceased and her two minor children are born out of the said wedlock. The Court below accordingly allowed the claim of succession in favour of all the legal heirs of Late Rabindra Prasad Singh including Neelam Kumari. In the result, in view of the reasons and discussions, as made above, I do not find any merit in this appeal. The same is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. Let the lower Court’s record be sent down without delay.