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2013 DIGILAW 53 (ALL)

BEENA RANI v. SUSHMA TYAGI

2013-01-07

S.U.KHAN

body2013
Sibghat Ullah Khan, J. Heard learned counsel for the parties and perused the written arguments. This writ petition arises out of proceedings for grant of succession certificate in respect of retiral dues/benefits of late Shri Pramod Tyagi including G.P.F., Insurance, Family pension, Gratuity and Leave Encashment. Late Shri Pramod Tyagi was an employee of Indian Railways who died on 14.5.2001. Petitioner no.1 Smt. Beena Rani claiming to be legally wedded wife of Late Shri Pramod Tyagi filed Misc. Case No.150 of 2001 alongwith her two children Km. Bhavna and Ashish petitioner nos. 2 and 3 in this writ petition impleading therein the respondent nos. 2 and 3 mother and married daughter of Late Shri Pramod Tyagi from respondent nos. 1 Smt. Sushma Tyagi the previous wife of Shri Pramod Tyagi. Respondent no.1 Smt. Sushma Tyagi and respondent no.3 Shivani also filed Misc. Case No.152 of 2001 impleading therein Smt. Radha Devi respondent no.2 and others. Both the cases were consolidated and decided by Civil Judge ( Senior Division), Saharanpur on 22.8.2005. True copy of the judgment is Annexure-1 to the writ petition. Petitioner no.1 Smt. Beena Rani had contended that even though Smt. Sushma - respondent no.1 since deceased and survived by respondent nos. 2 and 3 was legally wedded wife of Late Shri Pramod Tyagi however, the relationship between the two had come to an end and for several years Smt. Sushma Tyagi was not residing with Late Shri Pramod Tyagi and Shri Pramod Tyagi had legally wedded with petitioner no.1 and out that wedlock two children i.e. petitioner nos. 2 and 3 had been born. Smt. Sushma Tyagi contended that no divorce ever took place between her and her husband Shri Pramod Tyagi hence second marriage with petitioner no.1 Smt. Beena Rani was utterly illegal. The Civil Judge issued succession certificate in favour of the petitioners in respect of amount of Rs.3,87,442/- and dismissed the case which had been filed by respondent no.1 Smt. Sushma Tyagi. The Trial court mentioned that the matter of grant of succession certificate was in the nature of summary proceedings. The petitioner no.1 had also contended that Late Shri Pramod Tyagi had executed a Will dated 12.3.2001 in her favour which was un-registered and which contained the signatures of Radha Devi respondent no.2 and of Rajedra Kumar as attesting witnesses. Smt. Radha Devi was mother of the deceased Shri Pramod Tyagi. The petitioner no.1 had also contended that Late Shri Pramod Tyagi had executed a Will dated 12.3.2001 in her favour which was un-registered and which contained the signatures of Radha Devi respondent no.2 and of Rajedra Kumar as attesting witnesses. Smt. Radha Devi was mother of the deceased Shri Pramod Tyagi. In the Will Late Shri Pramod Tyagi mentioned that his family consisted of his mother Radha Devi, wife Beena Rani, daughter Bhavna and son Ashish. It was further stated that initially he was married with respondent no.1 Sushma Tyagi and a daughter by the name of Shivani ( respondent no.3) was born however, for 12 to 13 years both he and Sushma Tyagi had separated and in the Panchayat of Biradari divorce had taken place and thereafter he had married with petitioner no.1. The learned Civil Judge categorically held that no decree of divorce had been passed between Pramod Tyagi and Sushma Tyagi. Against the judgment of the learned Civil Judge two appeals were filed by Sushma Tyagi and Shivani being Misc. Civil Appeal No.57 and 58 both of 2005. District Judge, Saharanpur through judgment and order dated 8.12.2005 allowed both the appeals in part. The learned District Judge held that in the absence of formal divorce through court in between Pramod Tyagi and Sushma Tyagi, divorce could not be presumed or inferred by any conduct of the parties and marriage of Pramod Tyagi with Beena Rani was not legal. However, learned District Judge held that inspite of it the son and daughter of Pramod Tyagi with Beena Rani i.e. petitioner nos. 2 and 3 were fully entitled to inherit the property of Pramod Tyagi. The said order of the District Judge has been challenged through this writ petition. I do not find least error in the impugned order. As far as question of legality of marriage between Pramod Tyagi and Smt. Beena Rani petitioner no.1 is concerned, in the absence of formal divorce through decree no divorce can be presumed. The deceased had himself filed a divorce petition in the year 2000 against Smt. Sushma Tyagi ( 442 of 2000) but before it could be decided he died. The contention of the petitioners that respondent no.3 Smt. Shivani having been married lost her right in her father's property was also rightly rejected by the learned District Judge. The deceased had himself filed a divorce petition in the year 2000 against Smt. Sushma Tyagi ( 442 of 2000) but before it could be decided he died. The contention of the petitioners that respondent no.3 Smt. Shivani having been married lost her right in her father's property was also rightly rejected by the learned District Judge. In respect of Will dated 12.3.2001 the learned District Judge held that Smt. Radha Devi one of the attesting witnesses denied her signatures on the Will and the other witness was not examined to prove the Will. I do not find least error in respect of these findings also. If some one is placing reliance upon some Will he has to prove it by producing atleast one attesting witness. Moreover express denial of his/her signatures on the Will by one of the attesting witnesses rather disproves the Will. Writ petition is therefore dismissed.