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2013 DIGILAW 1375 (RAJ)

Parvin Kumar Naik v. Kailash Rani

2013-07-30

ARUN BHANSALI

body2013
JUDGMENT 1. - This appeal under Section 384 of the Indian Succession Act, 1925 ('the Act of 1925) is directed against the order dated 17.8.1999 passed by the Additional District Judge, Raisinghnagar, whereby the application filed by respondent Sint. Kailash Rani under Section 372 of the Act of 1925 has been accepted and she has been granted succession certificate regarding the estate of the deceased Sunita, her daughter. 2. The facts in brief are that Sint. Kailash Rani filed an application seeking succession certificate in respect of the debts and securities of her daughter Sunita, who was working as Teacher with the school situated at Chak 24 PS being operated by the Panchayat Samiti, Raisinghnagar under Zila Parishad. It was, inter alia, stated that deceased Sunita was appointed on 1.3.1990 and she died on 8.4.1993, though she was married to Parvin Kumar-present appellant, however, after death of Sunita, Parvin Kumar has contracted another marriage and therefore, she alone is the legal representative of deceased Sunita. The succession certificate was claimed for outstanding salary of the deceased Rs. 3,350/-, G.P.E. Rs. 4,631/-, amount of Insurance Rs. 54,000/- and earned leave Rs. 2,550/-. 3. A reply to the application was filed by the appellant and it was inter alia submitted that under Section 15 of the Hindu Succession Act, 1956 ('the Act of 1956'), he alone was the legal representative of deceased Sunita and despite the fact that, applicant has been appointed as nominee regarding G.P.F. amount, he alone is entitled to grant of succession certificate. 4. The trial Court framed three issues and evidence was led by the parties, whereby the applicant-Kailash Rani and respondent No. 4 Parvin Kumar were examined and documents were exhibited. The learned Additional District Judge came to the conclusion that as the appellant-Parvin Kumar has contracted second marriage after the death of Sunita, he is no longer the legal representative of the deceased and as the applicant was mother of the deceased, she alone was entitled to grant of succession certificate and consequently, ordered for grant of succession certificate in favour of Sint. Kailash Rani, mother of the deceased. 5. It is submitted by learned counsel for the appellant that the finding recorded by the learned trial Court disentitling the appellant for grant of succession certificate on account of his second marriage in the year 1995 is wholly incorrect and against the provisions of law. Kailash Rani, mother of the deceased. 5. It is submitted by learned counsel for the appellant that the finding recorded by the learned trial Court disentitling the appellant for grant of succession certificate on account of his second marriage in the year 1995 is wholly incorrect and against the provisions of law. it was pointed out that under Section 15(1)(a) of the Act of 1956 read with Section 16, the property of a female Hindu dying intestate would devolve firstly upon the husband and he is preferred to those in any succeeding entry and therefore, he alone was entitled to grant of succession certificate as the mother falls in sub-clause (c) of Section 15(1). It was further pointed out that mere nomination in G.P.F. account does not entitle the respondent to succeed to all her properties. 6. Reliance was placed on Smt. Sarbati Devi & Anr. v. Sint. Usha Devi, AIR 1984 SC 346 , wherein in the case of insurance and in a case where nomination was made, the Hon'ble Supreme Court held that the nomination was only for the purpose of receiving the amount and the same does not entitle the person to appropriate the entire amount. 7. On the other hand, learned counsel for the respondents relied on the finding recorded by the learned trial Court and submitted that once the appellant has contracted another marriage, the mother of the deceased was better entitled to succeed to her properties. 8. Reliance was placed on Section 5 of the Provident Fund Act, 1925 (Provident Fund Act') to contend that notwithstanding anything contained in any law, it is only the nominee indicated by the beneficiary who would be entitled to the amount of Provident Fund.' 9. I have considered the rival submissions. 10. The learned trial Court while dealing with the issue relating to entitlement of either the mother or the husband to the debts and securities of deceased Sunita came to the conclusion that though the appellant was the heir of deceased Sunita, however, as he has contracted second marriage in the year 1995, he no longer remains the successor of deceased Sunita and as the mother has been nominated in the provident fund account, she was entitled to grant of succession certificate. 11. 11. The said finding of the trial Court is apparently incorrect and has no warrant in law, inasmuch as, succession (testate or intestate) to the estate of a deceased takes place immediately on the death of the person as there is no hiatus between the death and such succession. Any event subsequent to the succession of a person cannot disentitle the person from properties to which he has already succeeded. Section 15(1)(a) of the Act of 1956 clearly provides amongst other, the husband as a successor of a Hindu female dying intestate and mother of a Hindu female has been indicated under Section 15(1)(c) of the Act of 1956. Section 16 of the Act of 1956 provides for order of succession and Rule 1 therein provides that heirs specified in sub-section (1) Section 15 those in one entry shall be preferred to those in any succeeding entry. 12. From the above provisions of Sections 15 and 16 of the Act of 1956, it is apparent that immediately on the death of Sint. Sunita on 4.8.1993, the appellant being her husband succeeded to the properties of the deceased Sunita and the fact that he thereafter remarried in the year 1995 is of no consequence. 13. Further neither under the Indian Succession Act nor under the Hindu Succession Act, there is any provision which disentitles a widower from succeeding to be estate of his deceased wife on account of his remarriage. The provision of Section 24 of the Act of 1956, which provided for certain widows not inheriting as widows on their remarriage has since been deleted also only dealt with remarriage of a widow only and had no application in case of widower. 14. In that view of the matter, the finding recorded by the trial Court cannot be sustained and the same is, therefore, set aside. However, so far as the nomination of the mother in the G.P.F. account of the deceased is concerned, in view of Section 5 of the Provident Funds Act, the mother would be entitled to succession certificate. 15. One more fact needs to be noticed, in the reply to the stay petition, the respondent has indicated that the entire amount regarding which succession certificate was being sought by the mother has already been withdrawn by the husband. 16. In the result, the appeal is partly allowed. 15. One more fact needs to be noticed, in the reply to the stay petition, the respondent has indicated that the entire amount regarding which succession certificate was being sought by the mother has already been withdrawn by the husband. 16. In the result, the appeal is partly allowed. The order dated 17.8.1999 passed by the trial Court is set aside and it is held that while appellant would be entitled to all the debts and securities of deceased Sint. Sunita, the respondent Smt. Kailash Rani would be entitled to succession certificate for the amount of G.P.F. i.e. Rs. 4,631/-. The parties are left to bear their own costs. Appeal Party Allowed. *******