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2014 DIGILAW 163 (MEG)

Riing Lyngdoh Marshillong v. Icy Dora Swear

2014-07-01

PRAFULLA C.PANT

body2014
Judgment Prafulla C. Pant, J. 1. Heard. 2. By means of this petition filed under Rule 6 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 read with Section 227 of the Constitution of India, the present petitioner has challenged the order dated 30.07.2010, passed by the Additional Judge, Additional District Council Court, Shillong in Succession Certificate Misc. Case No. 92 of 2007, whereby, said Court has issued Succession Certificate in favour of the present respondent (Icy Dora Swear) as regards to the debt and security of Mordikai Lyngdoh Marshillong. 3. Heard learned counsel for the parties and perused the paper on records. 4. Brief facts of the case are that Mordikai Lyngdoh Marshillong was a peon working with Clinic Health Centre of North Eastern Hills University (NEHU), Shillong. It is also not disputed that Mordikai Lyngdoh Marshillong died on 10.07.2007 at North Eastern Indira Gandhi Regional Institute of Health and Medical Sciences (NEIGRIHMS), Shillong. It is also not disputed that present petitioner Riing Lyngdoh Marshillong is the mother of Mordikai Lyngdoh Marshillong. The dispute relates to the fact whether the present respondent Icy Dora Swear (who filed Succession case) as the widow of the deceased (Mordikai Lyngdoh Marshillong) was married to him or not. It appears that after the death of above mentioned employee (Mordikai Lyngdoh Marshillong) he left behind him his post retiral dues like leave encashment of Rs. 40,000/- Gratuity of Rs. 1,34,000/- apart from payment due from Life Insurance Corporation amounting to Rs. 1,50,000/-. Smti Icy Dora Swear filed Succession Certificate Misc. Case No. 92 of 2007 before the District Council court for issuance of Succession Certificate, claiming herself to be the widow of the deceased (Mordikai Lyngdoh Marshillong). 5. The present petitioner who was respondent in the said case (mother of the deceased) contested the Succession case and denied that her son Mordikai Lyngdoh Marshillong was married to the applicant Icy Dora Swear. On the basis of the pleadings of the parties, the trial court framed as many as five issues and recorded the oral evidence apart from taking documentary evidence on record. On behalf of the applicant Icy Dora Swear (present respondent) she got herself examined as PW1, and in support of her statement she got examined PW2(U Augustin Syndor), PW3 (Smti Metilda Marwein) and PW (Smti Delis Nongsiej). 6. On behalf of the applicant Icy Dora Swear (present respondent) she got herself examined as PW1, and in support of her statement she got examined PW2(U Augustin Syndor), PW3 (Smti Metilda Marwein) and PW (Smti Delis Nongsiej). 6. PW 1(Icy Dora Swear) stated that she got married to Mordikai Lyngdoh Marshillong in January 2002 and a female child was born out of the wedlock on 10th June, 2003 at Ganesh Das Hospital, Shillong. In support of her statement, she filed Ext. 3 Birth Certificate issued on 11.03.2008 by Dr. RL Sohkhlet, Medical & Health Officer, Registrar of Birth & Death, Shillong Municipal Board, Shillong. Ext. 4 is the document filed on behalf of the applicant Icy Dora Swear to show that she was the only one who was allowed to see the deceased when he was in Intensive Care Unit of NEIGRIHMS. PW 3 (Smti Metilda Marwein) is the sister-in-law of the present respondent Icy Dora Swear who has corroborated not only the factum of marriage of her sister with the deceased but also birth of the daughter in the year 2003 in Ganesh Das Hospital, Shillong. PW4 (Smti Delis Nongsiej) who was a neighbour as further corroborated the statement of the applicant Icy Dora Swear (present respondent) on the above fact. 7. Learned counsel for the present petitioner submitted that PW 3 (Smti Metilda Marwein) and PW4 (Smti Delis Nongsiej) are interested witnesses and the trial court has erred in law in believing their statements. However, this Court is of the view that in the matters of the marriage and birth of the child it is only the near, dear and neighbour who are the natural witnesses of such fact. As such, the trial court has rightly believed their testimony. Though DW1 (Khlik Lyngdoh Marshillong) has denied the factum of marriage of her son with Icy Dora Swear, but her statement read with her sister DW2 (Riing Lyngdoh Marshillong) statement and that of DW3 (Augustine Marwein) is not sufficient to rebut evidence adduced on behalf of Icy Dora Swear before the trial court. It is pertinent to mention here that DW2 (Riing Lyngdoh Marshillong) in her cross-examination told the court that she has not aware of the fact that marriage between Mordikai Lyngdoh Marshillong and Icy Dora Swear was also approved by village Headman Mawlai Kynton Massar. It is pertinent to mention here that DW2 (Riing Lyngdoh Marshillong) in her cross-examination told the court that she has not aware of the fact that marriage between Mordikai Lyngdoh Marshillong and Icy Dora Swear was also approved by village Headman Mawlai Kynton Massar. DW 3 (Augustine Marwein) in her cross-examination stated that she did not know if Mordikai Lyngdoh Marshillong used to live with his wife in Mawlai Kynton Massar. It is not the case of the present petitioner that Mordikai Lyngdoh Marshillong was married to anyone else. 8. Having reassessed the evidence on record and considering particularly, the documentary evidence Ext. 2, Ext. 3, Ext. 4 and Ext. 5 which corroborated the case of the present respondent, this Court does not find any illegality in the impugned order. It is relevant to mention here that even Durbar Shnong has also issued certificate in favour of the present respondent before the trial court, corroborating her marriage with the deceased. 9. For the reasons as discussed above, this Court find no force in this petition. Accordingly, this petition (CR(P) No. 60 of 2010) is hereby dismissed. No order as to costs.