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2014 DIGILAW 897 (JHR)

Basanti Devi v. Dilip Bhagat

2014-08-26

D.N.UPADHYAY

body2014
ORDER This appeal has been preferred against the judgment dated 30.11.2007 passed by 1st Additional District Judge, Latehar in connection with Succession Case No. 13 of 2001. 2. The facts in brief is that appellant Basanti Devi claimed herself to be the legally wedded wife of late Rameshwar Bhagat. On her behalf and on behalf of her children, appellant no. 2 and 3 she had filed Succession Case No. 13 of 2001 in the court of 1st Additional District Judge, Latehar for grant of succession certificate in respect of the estate i.e., retiral benefit to be paid by the government of Jharkhand to Rameshwar Bhagat (deceased). 3. It is contended that Rameshwar Bhagat was a government employee working in Malaria department and he superannuated from his service on 31.01.2002, but before receiving retiral benefits he died on 24.02.2001. Since the deceased died intestate, an application for grant of succession certificate was filed by the appellants vide Succession Case No. 13. of 2001. During pendency of the proceeding the respondents put their appearance and raised objection against grant of succession certificate. Respondent no. 3 Most. Sita Devi had claimed herself to be the first wife of late Rameshwar Bhagat and from the wedlock she has been blessed with 6 children who are parties to this appeal. The objection was raised on the ground that the appellant Basanti Devi is not a legally wedded wife and she is not entitled for the estate left by the deceased. It was brought on record that the respondents have preferred Succession Case No. 2 of 2002 before the Sub Judge 1st, Purnea for grant of succession certificate in respect of the estate left by the deceased Rameshwar Bhagat. In due course it was further brought on record that said Succession Case No. 2 of 2002 has been decided on 03.03.2003 and succession certificate in favour of the respondents has been directed to be issued in respect of the estate of the deceased amounting to Rs. 2,55,000/4. In due course it was further brought on record that said Succession Case No. 2 of 2002 has been decided on 03.03.2003 and succession certificate in favour of the respondents has been directed to be issued in respect of the estate of the deceased amounting to Rs. 2,55,000/4. The learned 1st Additional District Judge, Latehar in the impugned judgment has referred Section 383 and 385 of the Indian Succession Act and further given opportunity to appellants to file petition under Section 383 of the Indian Succession Act before the competent court having jurisdiction for revocation of the aforesaid certificate which was directed to be issued by the learned Sub-Judge 1st, Purnea in connection with Succession Case No. 2 of 2002 and for that three months' time was given to them. 5. It appears that the appellant instead of preferring an application under Section 383 of the Indian Succession Act, preferred this appeal before this Hon'ble Court. 6. The appellants have assailed the impugned judgment on the ground that succession certificate presented by the appellants was earlier in time and they have made sons of deceased Rameshwar Bhagat party to this application. It is contended after knowing the pendency of Succession Certificate No. 13 of 2001, the respondents had cleverly presented another application for grant of succession certificate before the Sub-Judge 1, Purnea, which was not required to be proceeded with. It is further pointed out that the appellants were not made party in that succession case filed by the respondents at Purnea. Last but not the least, it is submitted that the respondents are poor villagers and they are not in a position to go and contest the proceeding at Purnea or file any petition before the Patna High Court. The learned counsel has fairly conceded in his submission to the extent that assuming appellant no. 1 is not legally wedded wife, even then appellant nos. 2 and 3 who are children born out of the said marriage, are legally entitled to get their share in the property left by late Rameshwar Bhagat. 7. The learned counsel appearing for the respondents vehemently opposed the prayer and submitted that no second succession certificate can be granted and the appellants were given liberty to file petition under Section 383 of the Indian Succession Act for revocation of the certificate granted, if they feel themselves aggrieved. 7. The learned counsel appearing for the respondents vehemently opposed the prayer and submitted that no second succession certificate can be granted and the appellants were given liberty to file petition under Section 383 of the Indian Succession Act for revocation of the certificate granted, if they feel themselves aggrieved. There is no merit in this appeal and the learned 1st Additional District Judge has rightly passed the impugned order. 8. I have gone through the provisions contained under Section 383 and 385 of the Indian Succession Act, 1925. It appears that the learned 1st Additional District Judge, Latehar has rightly considered the provisions and given opportunity to the appellants to move the court having jurisdiction and file a petition under Section 383 of the Indian Succession Act. 9. Since the appellants did not prefer any application before the Hon'ble Supreme Court with a prayer to amalgamate both the cases to be tried and disposed of by one and the same court, both the cases proceeded before the court concerned. Since the succession case filed by the appellant stood disposed of before the disposal of Succession Case No. 13 of 2001, there was only remedy left with the appellants to file petition under Section 383 of the Indian Succession Act which they did not do and therefore, in this appeal they cannot get any favourable order. 10. There is no merit in this appeal and accordingly this Miscellaneous Appeal is dismissed.