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2014 DIGILAW 116 (MEG)

Amita Sangma v. Bremila Sangma

2014-05-23

S.R.SEN

body2014
Order This instant petition is directed against the Impugned judgment and order dated 24.09.2013 passed in S/C Misc. Case No. 86 of 2010. 2. None has appeared for and on behalf of the respondent inspite of the notices published in the local daily newspaper “The Shillong Times” as well as the local daily newspaper “Mawphor”. Hence, this court’s order for ex-parte proceeding. But, till passing of this order, none is present for and on behalf of the respondent. 3. The learned counsel for the objector/petitioner, Ms. O.A.I. Bang present in the court submits that the learned court below while passing the impugned order fails to appreciate the law that it is the petitioner who to establish his/her case not to establish the title by the defence evidence. The learned counsel also further contended that the marriage certificate was fake as well as the birth certificate and on the basis of that, an FIR was lodged and the same is pending before the learned Magistrate First Class, District Council, Shillong registered as G.R.(A) No. 54 of 2011. 4. The petitioner’s case in a nutshell is that: “In brief, the revision petitioner got married with her late husband Nitrosen D Sangma in 1993 at Madanryting, Shillong as per the time tested social and customary practices prevailing amongst the indigenous Garo Schedule Tribe in the State of Meghalaya and blessed with 6(six) children who are still minors staying with the present revision petitioner here in Shillong in abject poverty. The relationship between the revision petitioner and the above late husband as husband and wife has been duly recognized by the families, Society and local traditional institutions. The above late husband working as Naik of Central Training Institute, Civil Defense and Home Guards, Shillong, however, unfortunately, died on 27.12.2008 at Mawblei Madanryting, Shillong due to cardio-pulmonary and multi-organs failures and as such, she performed the rituals and buried the dead body. The death certificate 23.01.2009 was issued to her by the Sub-Registrar of Birth and Death I/C Rynjah Dispensary, Shillong. Though, she along with her other three children were nominated by him in his service record, she, on being advised by the department, obtained the succession certificate dated 30.10.2009 from the District Council Court, Shillong and when requested the department to release the debts and securities, she was informed that the respondent had also furnished another succession certificate dated 31.08.2009 claiming the same benefits. Therefore, after verifying the records, it was found that the respondent had fraudulently obtained the above succession certificate by submitting the fake/false marriage and birth certificates and as such, she immediately filed an objection application under Section-383 of the Succession Act, 1925 before the learned Trial Court seeking for revocation. She also filed FIR dated 12.08.2010 before the Deputy S.P. (Crime), East Khasi Hills District, Shillong to take an appropriate action. Accordingly, the police had seized all the above documents from the possession of the respondent vide seizure list dated 20.06.2011 and arrested her and the other accomplice i.e. Shri. Waldabose Marak under Section-406/420 of Indian Penal Code and subsequently, the case was duly registered as G.R (A) No. 54/2011 and charge-sheet also submitted and the trial is going on before the Learned Judicial Magistrate, First Class, Shillong. However, due to the absence of her counsel, her objection petition was dismissed by the above Trial Court on 01.04.2011 for default of prosecution and her another restoration application was also rejected on 02.05.2011 and as such, she preferred Civil Appeal before this Hon’ble Court being registered as CRP(SH) No. 3 of 2012 and this Hon’ble Court vide Order dated 17.04.2012 was pleased to interfere with the same by remanded the matter of succession to the Learned Trial Court to decide the matter within 6(six) months. Since the Trial Court failed to decide the succession matter within the above stipulated period, she filed Contempt Petition before this Hon’ble Court being registered as CONT CASE (C) (SH) No. 12 of 2013 and this Hon’ble Court vide order dated 29.08.2013 after satisfied with the contempt matter pleased to direct the Learned Trial Court to dispose of the entire succession matter within 3(three) months. It is an admitted fact on record that apart from the fake marriage certificate and birth certificates, the respondent did neither adduce any reliable documentary evidence nor produced witnesses. Moreover, the respondent neither give deposition to establish her case nor choose to cross-examine the revision petitioner and her other three witnesses to demolish the oral and documentary evidences adduced by the revision petitioner. Moreover, the respondent neither give deposition to establish her case nor choose to cross-examine the revision petitioner and her other three witnesses to demolish the oral and documentary evidences adduced by the revision petitioner. However, despite of the overwhelming oral as well as the documentary evidences, the Learned Trial Court vide impugned Judgment and Order dated 24.09.2013 mechanically dismissed the above objection petition by holding that the revision petitioner failed to proof herself as the wife of the deceased husband and thus, she did not entitled to received the debts and securities left by her deceased husband. Hence, the instant Civil Revision Petition is preferred before this Hon’ble Court assailing the legality of the above impugned Judgment & Order dated 24.09.2013 passed in S/C Misc. Case No. 86 of 2009 has already filed before this Hon’ble Court for necessary reliefs”. 5. I have perused the impugned judgment dated 24.09.2013 passed in S/C Misc. Case No. 86 of 2010 wherein, it appears at page 93 that:- “As the petitioner failed to take steps for filing her list of witnesses and also to adduce evidence before this court, hence, evidence from the side of the petitioner is closed vide this court’s order dated 05.09.2013” 6. From the contents of the order, it appears that the petitioner never adduce any evidence. However, subsequently, it appears that the opposite party/objector/petitioner in this case examine one witness, but inspite of the fact that the petitioner fails to establish her claim by way of evidence, the court passed the judgment in favour of the petitioner which is against the principles of law. It is a settled principle of law that it is the plaintiff or the petitioner, who seek remedy before the court to establish his/her title or claim, whatever alleged in the plaint, the court cannot shift the burden of proof on the defendant or objector. 7. It is a settled principle of law that it is the plaintiff or the petitioner, who seek remedy before the court to establish his/her title or claim, whatever alleged in the plaint, the court cannot shift the burden of proof on the defendant or objector. 7. I have also perused the letter of the Joint Director of Civil Defence and Joint Commandant General of Home Guards, Meghalaya, Shillong addressed to the Superintendent of Police, East Khasi Hills District, Shillong dated 21.12.2009 at page 39 of this case record wherein, it appears that there was a bunch of doubt about the authenticity of the certificate and as the petitioners’ counsel submitted that the matter is pending before the learned Magistrate First Class, District Council, Shillong until and unless it is found that the certificate is genuine, such documents cannot be accepted for any adjudication. 8. For the reasons discussed above, I find that the impugned judgment referred above passed by the learned Judge, District Council is bad both in law and in fact. Hence, the impugned judgment and order dated 24.09.2013 passed in S/C Misc. Case No. 86 of 2010 is hereby set aside. 9. The petitioner/objector is at liberty to move a fresh application for Succession Certificate and if the court after considering all the documents finds that the petitioner is genuine to claim for Succession certificate, then to pass necessary order in accordance with law. It is also further ordered in case if petition is filed by the petitioner for Succession certificate, that to be decided by the District Council court from the date of receipt of this order within 6(six) months. 10. The matter stands disposed of.