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2015 DIGILAW 873 (GAU)

Musstt. Halima Begum v. Musstt. Nurangigini Begum

2015-07-21

N.CHAUDHURY

body2015
JUDGMENT 1. This is an appeal under Section 384 of the Indian Succession Act, 1925 challenging the judgment and order dated 30.6.2004 passed by the learned Additional Sessions Judge, Kamrup in Succession Case No. 61 of 2002. By that judgment, the learned court allowed the succession case and ordered for issuance of succession certificate in favour of the petitioner for 50% of the amount at Rs.50,000/- which fell due on account of death of Khabir Ali towards gratuity and GPF. 2. One Nurangini Begum , as petitioner submitted an application under Section 372 of the Indian Succession Act, 1925 (hereinafter referred to as ‘Act’) on 19.1.2002 before the learned District Judge at Kamrup stating that she is the first wife of late Khabir Ali whereas the sole opposite party Musstt. Halima Begum is the second wife of the deceased. Khabir Ali was a constable under the Superintendent of Police , Mangaldoi. He died on 9.5.2000 in MMC Hospital leaving behind two wives and seven children from both of them. The children of Halima Begum were shown to be minors whereas those born to Nurangini Begum were all adults. Both the daughters of Nurangini Begum were married as on the date of institution of the application. The petitioner, Nurangini Begum prayed that sum of Rs.25,000/- has become payable towards gratuity of late Khabir Ali and another sum of Rs.25,000/- is also payable under the GPF. Thus, application was filed for Rs.50,000/- in all. 3. The sole opposite party appeared and submitted written statement on 21.6.2002 stating that petitioner Nurangini Begum had been divorced by Khabir Ali on 19.11.1986 by oral Talaq in presence of witnesses and that the Talaq became complete under Section 310(1) and 311(3) of the Mohammedan Law. Only after giving Talaq to Nurangini Begum, Khabir Ali married the sole opposite party and thereupon three children were born to them. She also claimed to have been nominated by Khabir Ali in the service records for the purpose of drawal of entitlements due to his retirement and on the basis of that nomination, she had already withdrawn the amount from the office of the S.P., Darrang. 4. The learned trial court framed the following three issues upon the aforesaid pleadings of the parties: (i) Whether the petitioner Musstt. Nurangini Begum and the opposite party Musstt. Halima Begum were legally married wife of the Late Khabir Ali? 4. The learned trial court framed the following three issues upon the aforesaid pleadings of the parties: (i) Whether the petitioner Musstt. Nurangini Begum and the opposite party Musstt. Halima Begum were legally married wife of the Late Khabir Ali? (i) Whether the petitioner Musstt. Nurangini Begum had been divorced by the Late Khabir Ali during his life time? (i) Whether the petitioner is entitled to Succession Certificate as prayed for? 5. Petitioner examined as many as two witnesses including herself while opposite party examined four witnesses including herself. After consideration of the materials available on record, the learned trial court passed the impugned judgment and order holding that the opposite party could not prove Talaq of the petitioner and so she was also entitled to 50% of the debts and securities left behind by deceased Khabir Ali. This judgment and order was passed on 30.6.2004. 6. Sole opposite party Halima Begum being aggrieved at the aforesaid judgment and order passed by the learned trial court has preferred this appeal under Section 384 of the Act. This court while admitting the appeal, called for the records. I have perused the records. 7. I have heard Mr. S Biswas, learned counsel for the appellant. No one has put up appearance on behalf of the opposite party, Nurangini Begum, although name of the counsel has been shown in the Cause List. The matter came up for hearing on 13.7.2015 and for the whole week, no one has put up appearance on behalf of the parties. However, on 17.7.2015, learned counsel for the appellant appeared and prayed for time to fix the matter today for hearing. Accordingly, it has been taken up. However, the learned counsel for the respondent abstained from appearance in the appeal. 8. The learned trial court allowed the petition of Nurangini Begum to the extent of 50% property only on the ground that the plea of divorce could not be proved by the opposite party Halima Begum in accordance with law. Halima Begum produced a Talaqnama Exhibit-K and Certificate given by Kazi as Exhbit-Kha. Exhibit-K appears to be a proceeding of village ‘Vichar’ wherein assembled villagers resolved that the husband Khabir Ali gave Talak to Nurangini Begum . The learned trial court noticed that this Talaqnama Exhbit-K is not signed by Khabir Ali. Halima Begum produced a Talaqnama Exhibit-K and Certificate given by Kazi as Exhbit-Kha. Exhibit-K appears to be a proceeding of village ‘Vichar’ wherein assembled villagers resolved that the husband Khabir Ali gave Talak to Nurangini Begum . The learned trial court noticed that this Talaqnama Exhbit-K is not signed by Khabir Ali. However, local Kazi issued certificate vide Exhibit-Kha whereby it was stated that Talaqnama given by Khabir Ali has become final. I have perused Exhbit-K. It shows that it was written by one Bapdhan Ali on 19.11.1986. It is true that it does not contain signature of Nurangini Begum or Khabir Ali although the proceeding shows that local public after hearing the statements of both sides came to know that Nurangini Begum was divorced by Khabir Ali as Nurangini Begum had eloped with another man. In this connection, a police case was registered by Jahlukbari P.S. It is further mentioned in the said proceeding that Nurangini Begum promised not to make any claim against Khabir Ali. Thus , recital of Exhbit-K shows that there was bilateral proceeding by local public where both the sides placed their respective case and once a decision was taken that Khabir Ali has given Talaq to Nurangini Begum, she also promised not to make any claim against Khabir Ali. But strangely, neither Khabir Ali nor Nurangini Begum put their signature or thumb impression on this paper. Had Khabir Ali been alive it would have been easy to know as to whether such a proceeding had at all taken place on 19.11.1986. This document has been placed on record by the 3rd party Halima Begum and so burden fell heavily on her to show that such a proceeding had at all taken place. This burden could have been discharged by examining any of the persons who signed on the documents as witnesses. Even Bapdhan Ali has not been examined to prove the veracity. Exhibit-Kha has not been accepted by the trial court on the ground that the Kazi who had issued the certificate was not examined. True, the learned trial court was not called upon to decide the correctness or veracity of the divorce given by Khabir Ali to Nurangini Begum, but learned trial court was called upon to examine a prima facie case as to whether Nurangini Begum was given Talaq by her deceased husband. True, the learned trial court was not called upon to decide the correctness or veracity of the divorce given by Khabir Ali to Nurangini Begum, but learned trial court was called upon to examine a prima facie case as to whether Nurangini Begum was given Talaq by her deceased husband. Learned trial court noticed that in the absence of any deposition by any witness of the Talaq proceeding, the same was not believable. Exhbit-K is not signed by either of the party to marriage. It is nothing but a proceeding of a public meeting wherein Khabir Ali had given Talaq to Nurangini Begum. Such a fact could have. 9. However, since the parties have diligently pursued the matter for all the years, they shall be at liberty to settle their claims, if any, in competent civil court. 10. Appeal stands dismissed. No order as to cost.