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2015 DIGILAW 250 (ORI)

Ghasiani Patnaik v. Bhagbati Naik

2015-04-10

D.DASH

body2015
JUDGMENT D. Dash, J. 1. This appeal has been filed under Section 384 of the Indian-Succession Act 1925 (hereinafter called as "the Act") challenging an Order Dated 09.07.2007 passed by the Learned Civil Judge (Sr. Division), Jaypore in Instate Case No. 03 of 2005. Heard the Learned Counsel for the parties. 2. The Respondent as the Petitioner filed an application under Section of 372 of the Indian Succession Act for grant of Succession Certificate in her favour in order to receive the entitlements towards the compensation amount, pensionary benefits, death Gratuity, GPF, amounts financial benefit towards unutilized leave, GIS, EPF & other benefits due to be paid by the Government on account of the service of her late husband with the Government. It is her case that she is the legally married wife of deceased Brajabandhu & out of the said wedlock five children were born & from among them four are living i.e., a son & three daughters. Brajabandhu was serving as a Helper in JED Division Similiguda under the Executive Engineer, Jeypore Division. Having served for 35 years, he died on 21.04.2005. After the death, when the Petitioner applied for grant of legal heir Certificate before the Tahasildar, Jeypore, it was refused. She then applied before the Executive Engineer for grant of aforesaid dues. At that time she was asked to produce the Succession Certificate from the competent Court. It is also her case that during lifetime of Brajabandhu for some reason, there was separate living & she had claimed maintenance from Brajabandhu. It is stated that the (Opp. Party) is not the legally married wife of Brajabandhu & as such she has no right. 3. The Appellant as the Opp. Party appeared there & contested the proceeding. She challenged the status of the Respondent to be the legally married wife of Brajabandhu & on the other hand she asserted her to be the legally married wife of Brajabandhu & that too have given birth to a son & daughter of Brajabandhu. Thus, she claimed to be entitled to the Succession Certificate while vehemently denying the entitlement of the Respondent to the same. 4. In the proceeding, the Petitioner examined two witnesses, Opp. Party also examined three. Both sides proved some documents in support of their status which shall be referred to in due course if so felt necessary. Thus, she claimed to be entitled to the Succession Certificate while vehemently denying the entitlement of the Respondent to the same. 4. In the proceeding, the Petitioner examined two witnesses, Opp. Party also examined three. Both sides proved some documents in support of their status which shall be referred to in due course if so felt necessary. The Court below with the evidence let in by the parties has gone to decide the issue as to whether the Petitioner is the legally married wife of the Brajabandhu & entitled to get the Succession Certificate & also as to whether the Petitioner along with her children or the Opp. Party as well as her children are entitled to the same. On evaluation of evidence both oral & documentary, finding has been given that the Opp. Party is not the legally married wife of Brajabandhu. However, holding the Petitioner to be the legally married wife, Succession Certificate has been granted jointly in favour of Petitioner, all the children of Brajabandhu including those born to the Opp. Party & the mother of Brajabandhu. 5. Learned Counsel for the Appellant fairly concedes that the finding with regard to the status of the parties in this summary proceeding is not final & conclusive. He also concedes that the same will not operate as res judicata in subsequent proceeding. However, he contends that despite of the finding, the Court below ought to have granted the Succession Certificate to this Petitioner, as admittedly, she was staying with Brajabandhu as husband & wife for quite a long period till the death of Brajabandhu & children have been born, when also Brajabandhu in his service book & other related papers had given the name of the Appellant as the nominee. In support of the same, he relies on the decision in case of Vidyadhari & others Vs. Sukhrana Bai & others; AIR 2008 SC 1420 . So, he urges for necessary modification in the order relating to the grant of Succession Certificate in consonance with the ratio of the said decision. Learned Counsel for the Respondent urges with vehemence that the finding rendered by the Court below is based on just & proper appreciation of evidence in view of the challenge with regard to the status of the respective parties. Learned Counsel for the Respondent urges with vehemence that the finding rendered by the Court below is based on just & proper appreciation of evidence in view of the challenge with regard to the status of the respective parties. According to him, the Court below having found the Petitioner to be having the prima facie best title has rightly granted Succession Certificate to her & others jointly. 6. The Court below has held the Petitioner to be the legally married wife of Brajabandhu, while holding in the negative as regards the status of this Opp. Party as claimed by her to be the legally married wife. But as it appears, the Court below committed grave error having not kept in mind, the most important fact that Brajabandhu being 'Gonda' by caste is a member of Scheduled Tribe & as such the provision of Hindu Marriage Act which prohibits the bigamy are not applicable to them. The law on the point has already been well settled that these members of the Scheduled Tribe being not governed by the provision of Hindu Marriage Act in case of second marriage even during subsistence of the first marriage, the second marriage is not void & also no prosecution for bigamy under Section 494 IPC lies. Therefore, without entering into the arena of judging the sustainability of the finding of the Court below as regards first marriage etc, the same is bound to be held to be legally unsustainable. Furthermore, the evidence is there that the Opp. Party had stayed for long with Brajabandhu as husband & wife; children of Brajabandhu have been born during the period wherein the Service Book of Brajabandhu Ext. D, as well as other connected documents, the Opp. Party's name finds place as the nominee. In view of all these, the lower Court's finding with regard to status of the Opp. Party is held to be unsustainable. Thus, this Court while agreeing with the finding of the Court below that the Petitioner is the first wife further holds the status of the Opp. Party also as the other wife & as such both are the co-widows of deceased Brajabandhu. 7. In case of Vidhyadhari & other (supra), one Sukhrana Bai was the first wife of the deceased, who again married Vidhyadhari who begotten two sons & daughters through the deceased. Sukhrana was having no children. Party also as the other wife & as such both are the co-widows of deceased Brajabandhu. 7. In case of Vidhyadhari & other (supra), one Sukhrana Bai was the first wife of the deceased, who again married Vidhyadhari who begotten two sons & daughters through the deceased. Sukhrana was having no children. The deceased had nominated Vidhyadhari for receiving service benefits etc. & she also received the sum (as it is so in the present case that the Opp. Party has received the amount for performing all obsequies ceremony). The Trial Court having held that the first wife had divorced granted the Succession Certificate in favour of the second wife. The High Court held the divorce to be a myth & then directed that the Succession Certificate be granted in favour of the Sukhrana Bai, the first wife. The Hon'ble Apex Court even holding Sukhrana Bai to be the legally married wife did choose to grant the Succession Certificate in favour of the Vidhyadhari who was the nominee of the deceased & mother of his children, of course safeguarding the interest of the Sukhrana Bai by further order in that regard. In that case it has been held:- "the law is clear on this issue that nominee like Vidhyadhari, who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Act & there is nothing in the Section to prevent such a nominee from claiming the Certificate on the basis of nomination. The High Court should have realised that Vidhyadhari is not only a nominee but also was mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen whose names were also found in Form - A which was a declaration of Sheetaldeen during her life time (as in the affidavits in the present case produced with the Service Book)". 8. In the back drop of above, so far as the case in hand is concerned the Opp. Party's entitlement to get the Succession Certificate rather stands in a much higher footing with her status also as the legally married wife at par with the Petitioner. 9. For the aforesaid discussion & reason, the order of grant of Succession Certificate as passed cannot be allowed to stand & calls for necessary modification. In view of above, it is hereby ordered that the Opp. 9. For the aforesaid discussion & reason, the order of grant of Succession Certificate as passed cannot be allowed to stand & calls for necessary modification. In view of above, it is hereby ordered that the Opp. Party (Appellant) is entitled to get the Succession Certificate as claimed in the petition. However, this Court must balance the equities as the Opp. Party (Appellant) is also one of the legal heirs with the children of, Brajabandhu along with the Petitioner (Respondent) & children born to her. The parties being members of Scheduled Tribe Community are not governed by the provisions of Hindu Succession Act, & as per the traditional Hindu Law, they have succeeded to the estate of deceased, Brajabandhu as under:- Petitioner (Respondent) 1/6 th Share Opp. Party (Appellant) 1/6 th Share Son Binod (through Respondent) 1/3 rd Share Son Manoj (through Appellant) 1/3 rd Share In view of above, the Succession Certificate is granted to Opp. Party (Appellant) with the rider that she would protect the interest of all the above named & pay them the sum received in accordance with above share noting. As the nominee, she would be holding the shares of others in trust & would be responsible to pay the same to them as aforesaid. It is also directed that for the purpose, she would execute an indemnity bond with one surety to the extent of shares of others for onward payment upon receipt of the sum to the satisfaction of the Court. 10. It should not be understood that this Court is in any way deciding the status of the parties & their shares over the estate of the deceased, Brajabandhu finally which the parties may if they so like prosecute their own remedy for establishment of their status, shares etc independently of this proceeding wherein these prima facie findings as above would have nothing to weigh in the mind of Court nor would stand on the way of a decision therein as per law. Accordingly, the appeal is allowed as aforesaid. In the facts & circumstances of this case, here will be no order as to costs.