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2016 DIGILAW 1018 (ORI)

Koili Behera v. Kumari Hemaprava Behera

2016-11-02

D.DASH

body2016
JUDGMENT : In this writ application, the petitioner seeks for quashment of order dated 23.09.2010 passed by the learned District Judge, Balasore in Misc. Appeal No. 69 of 2005. 2. Facts essential for the purpose may be stated hereunder:- The opp. party nos. 1 and 2 in this proceeding as the petitioners had filed an application under section 372 of the Indian Succession Act for grant of Succession Certificate in respect of the debts and securities of their father late Alekha Prasad Behera. The present petitioner has been arraigned as opp. party no. 3 in the said proceeding. The petition being dismissed, they had carried an appeal under Section 388 (2) of the Act before the learned District Judge, Balasore. The appeal having been allowed and the respondent nos. 1 and 2 have been favoured with the grant of Succession Certificate as prayed for, respondent no. 3 therein who was opp. party no. 3 in the trial court has now filed this writ application. 3. This petitioner is the first wife of Alekha Prasad Behera and the opp. party nos. 1 and 2 are the daughter and son of Alekha through second wife namely Malatilata. The application for grant of Succession Certificate has been filed by the opp. party nos. 1 and 2 for the purpose of receiving the family pension and other pensionary benefits in relation to the service of late Alekha Behera who died as a pensioner. The petitioners state that each of them are entitled to 1/3rd over that family pension and other pensionary benefits and the opp. party no. 3 has the entitlement over 1/3rd. It is said that the prayer for granting the Succession Certificate in respect of the family pension and other pensionary benefits in relation to the service of Alekha who died as a pensioner, has been made taking those as the debts and securities of Alekha. 4. (A) Learned counsel for the petitioner contends that Succession Certificate can only be granted in respect of the debt and security of the deceased and not for receipt of family pension and other service benefits which are neither debt nor security. 4. (A) Learned counsel for the petitioner contends that Succession Certificate can only be granted in respect of the debt and security of the deceased and not for receipt of family pension and other service benefits which are neither debt nor security. The point has already been answered by the Division Bench of this Court in case of Smt. Sudha Das and others vs. Collector, Rayagada and others; 2009 (I) OLR 44 that the children born through the first wife as well as the children born through second wife are entitled to get family pension, gratuity, provident fund etc. in equal share in accordance with the provisions of Family pension Rules which would be determined by the employer. This has been rendered referring to and relying upon the ratio and decisions in case of Rameshwari Devi vs. State of Bhiar and others; (2000) 2 SCC 431 : AIR 2000 SC 735 and Vidhyadhari and others vs. Sukhrana Bai and others; 105 (2008) CLT 833 (SC). The contention as raised thus fails. (B) It is next contended that Malatilata was neither the legally married wife nor the kept/concubine of Alekha and Alekha had no relationship with Malatilata and the opp. party nos. 1 and 2 are not born to Malatilata through Alekha. The finding recorded by the lower appellate court on those factual aspects according to him is unsustainable in the eye of law and against the weight of evidence. The proceeding for grant of Succession Certificate is summary in nature as provided in section 373 (1) (b) of the Act when the scope of the proceeding is to decide the right to the Certificate. Even as provided in sub-section 3 of section 373 of the Act, the court being not in a position to decide the right to the certificate being faced with questions of law or fact appearing to be too intricate and difficult for determination in a summary proceeding, the proceeding for grant of Succession Certificate can very well be culminated even by granting the Succession Certificate to the applicant if he appears to be a person having prima facie the best title thereto. All these above factual findings which are being attacked in this writ application are the outcome of a summary proceeding wherein court is not called upon to conclusively go to decide the status of the parties but merely decides the right to the Certificate and that even when cannot be decided with certainty, the law provides its grant to the person even having prima facie, the best title thereto. This is to meet urgent necessity that as without that some others may take undue advantage of causing loss to the persons entitled to succeed. Furthermore, it has not been pointed out with reference to the evidence that any such material evidence on those scores either to have been overlooked which if would have been taken into consideration the finding might have been otherwise or that any such inadmissible evidence has weighed in the mind of the Court in recording the said finding so as to say the finding to be suffering from the vice of perversity. The contention as above thus stands repelled. (C) It is contended that the order passed by the learned District Judge is without jurisdiction as the appeal only lies to this Court from an order in the proceeding under section 372 of the Act. The answer to the above has to be provided in the negative in view of the provision of sub-section 388 of the Act read with notification of the Govt. in the Department of Law dated 14.11.1961. 5. For the aforesaid discussion, all the contentions raised on behalf of the petitioner fail to receive acceptance. Therefore, this Court concludes that neither the order of grant of Succession Certificate is without jurisdiction nor by such order there has occasioned grave injustice or failure of justice, making it vulnerable to interference in exercise of power under Article 227 of the Constitution. The writ petition is, accordingly, dismissed. No order as to cost.