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2016 DIGILAW 156 (CAL)

Munia Khatun alias Munia Bibi v. Sabana Bibi

2016-02-10

DEBI PROSAD DEY

body2016
JUDGMENT : Debi Prosad Dey, J. 1. This application under Article 227 of the Constitution of India has been filed challenging the judgment passed by learned Additional District Judge, 3rd Court, Paschim Medinipore in Misc. Appeal No. 69 of 2013 dated 31st January, 2015 whereby and where under learned Additional District Judge, Paschim Medinipore has affirmed Order No. 46 dated 13.06.2013 passed by learned Court of District delegate and Civil Judge (Junior Division, First Court, Paschim Medinipore) in succession certificate Case No. 66 of 2011. The present petitioner was arrayed as opposite party no. 1 in an application under Section 372 of the Indian Succession Act. The opposite party no. 1 Smt. Sabana Bibi had filed succession certificate Case No. 56 of 2011 impleading the present petitioner as opposite party for grant of succession certificate in respect of the debts and securities left by her deceased husband Sk. Munna, who was an employee of South Eastern Railway and who died in testate on 18.02.1999 leaving behind the following legal heirs:- (a) Gulson Bibi (mother) (b) Smt. Sabana Bibi (first wife) (c) Munia Bibi (second wife) (d) Sk. Dilsat (son from the second wife) 2. Admittedly, the opposite party no. 1 is the first wife of Sk. Munna. The case of the petitioner is that Sk. Munna got married with the present petitioner for the second time and Sk. Dilsat was born out of such wedlock. The present petitioner, being impleaded as opposite party in succession certificate Case No. 56 of 2011, had appeared in that case and contested the case by filing written statement. Learned Judge however after hearing the rival contentions of both the parties was pleased to grant succession certificate in favour of opposite party no. 1 being the first wife of Sk. Munna. The present petitioner thereafter challenged the said order in Misc. Appeal No. 69 of 2013 in the Court of learned District Judge and the said case was transferred to learned Additional District Judge, 3rd Court, Paschim Medinipore. Learned Additional District Judge, 3rd Court, Paschim Medinipore however has affirmed the order passed by learned Civil Judge, Senior Division, First Court, Medinipore. Both the learned Courts have however held that marriage between the present petitioner and Sk. Munna was not valid and as such the opposite party No. 1 Smt. Sabana being the legally married wife of Sk. Learned Additional District Judge, 3rd Court, Paschim Medinipore however has affirmed the order passed by learned Civil Judge, Senior Division, First Court, Medinipore. Both the learned Courts have however held that marriage between the present petitioner and Sk. Munna was not valid and as such the opposite party No. 1 Smt. Sabana being the legally married wife of Sk. Munna is entitled to get the succession certificate in respect of debts and securities of Sk. Munna, since deceased. 3. Despite service of notices the opposite parties did not turn up to contest this application. The affidavit of service has been kept with the record. 4. Learned Advocate Mr. Mihir Das appearing on behalf of the petitioner contended that learned Courts below erroneously held about the marital status of the petitioner and thereby mis-directed itself in accepting the case of opposite party No. 1. 5. Learned Advocate Mr. Das appearing on behalf of the petitioner contended that learned Courts below failed to take notice about the birth certificate of Sk. Dilsat as well as the marriage certificate of the petitioner while granting succession certificate in favour of opposite party no. 1. 6. Mr. Mihir Das further contended that learned Courts below ought to have held that the present petitioner is the legally married wife of Sk. Munna (since deceased) and accordingly the present petitioner is entitled to get the share in respect of the properties left by Sk. Munna. 7. In support of his contention learned Advocate for the petitioner has referred the following decisions reported in:- Madan Mohan Singh & Others v. Rajni Kant & Another, AIR 2010 SC 2933 and Karedla Parthasaradhi v. Gangule Ramanamma (D) through LRs. & Others, AIR 2015 SC 891 . 8. In Madan Mohan Singh & Others v. Rajni Kant & Another, AIR 2010 SC 2933 , the Apex Court has held that the live-in relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them which the appellants failed to rebut. Long standing live-in relationship gives an impression of presumption of marriage. In Karedla Parthasaradhi v. Gangule Ramanamma (D) through LRs. & Others, AIR 2015 SC 891 , the Apex Court has held that long standing relationship for about 33 years as husband and wife would definitely raise presumption about factum of marriage between the parties. Long standing live-in relationship gives an impression of presumption of marriage. In Karedla Parthasaradhi v. Gangule Ramanamma (D) through LRs. & Others, AIR 2015 SC 891 , the Apex Court has held that long standing relationship for about 33 years as husband and wife would definitely raise presumption about factum of marriage between the parties. 9. There is absolutely no confusion with regard to the proposition of law enunciated by the Apex Court in the aforesaid decisions. In the case under reference the present petitioner said to have been married with Sk. Munna and thereby she begot a child out of her wedlock with Sk. Munna. 10. Learned Advocate Mr. Das appearing on behalf of the petitioner solely contended about the marital status of the petitioner and could not point out any illegalities in the order as well as judgment passed by learned Courts below. 11. The learned trial Court was perfectly justified in granting succession certificate in favour of opposite party No. 1, being first legally married wife of Sk. Munna, since deceased. The name of the petitioner also does not appear in the service book of Sk. Munna, since deceased. The name of first wife Sabina Bibi was duly incorporated in the service book of Sk. Munna and having regard to the preferential claim of Smt. Sabana Bibi, learned trial Court granted succession certificate in favour of Sabana Bibi and thereby has given the authority to Sabana Bibi to collect the debts and securities on behalf of Sk. Munna since deceased. 12. The entitlement of such debts and securities of Sk. Munna has not been determined by learned trial Court. The said order has been passed in order to facilitate the disbursement of the service benefits of Sk. Munna since deceased in favour of Smt. Sabana Bibi. 13. The object of granting succession certificate is to facilitate the collection of debts and securities and not to enable the parties to litigate questions of disputed title in respect of the debts and securities. 14. Secondly, the scope of inquiry in a proceeding for granting succession certificate is limited and while conducting such inquiry the Court has had no jurisdiction to determine the complicated questions of law with regard to the title or rights of the parties. 14. Secondly, the scope of inquiry in a proceeding for granting succession certificate is limited and while conducting such inquiry the Court has had no jurisdiction to determine the complicated questions of law with regard to the title or rights of the parties. The succession certificate is being issued by the Court only to facilitate the collection of debts and securities of the deceased, who died in testate. Our High Court in a decision reported in Musst. Jigri Begum & Another v. Syed Ali Nawab, 5 CWN 494, has clearly laid down the principle of law in this regard, which may be reproduced as follows:- "There must be an enquiry before a certificate is granted under the Succession Certificate Act, but the enquiry is to be summary one, and when a Judge has legal evidence before him on which he comes to a proper conclusion, the proceedings cannot be set aside because they seem not to have been of a very protracted nature. Such a decision does not in any way bar the rights of the parties nor does it establish the right of the party to the debt to collect which the certificate is granted." 15. Secondly, while granting certificate the Court concerned has had no authority to determine the marital status of the parties to the proceeding. However, even if the marital status of the petitioner has been decided by the Courts incidentally/co-laterally while deciding the fate of the succession certificate, such decision would not operate as a bar for establishing such right before the competent Court of law in a subsequent proceeding. Section 387 of the Indian Succession Act 1925 may be reproduced below for proper appreciation. "No decision under this part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or, security or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto." 16. It is therefore apparent from Section 387 of the Indian Succession Act that even if there be any decision with regard to the marital status of the petitioner in a proceeding for obtaining succession certificate, the said decision would not operate as res-judicata in a subsequent proceeding. Secondly, the petitioner shall have the liberty to establish her marital status as well as her claim with regard to the debts and securities left behind by her husband in a subsequent proceeding before Civil Court. The Apex Court has also explained the purpose and object of Section 372 of Indian Succession Act in a decision reported in Madhvi Amma Bhawani Amma & Others v. Kunjikutty Pillai Meenakshi Pillai & Others, AIR 2000 SC 2301 . 17. The grant of succession certificate does not conclusively decide the rights of the parties but the rights of the parties may be finally adjudicated by a competent Court of law and while doing so, the decision arrived at in the proceeding of succession certificate, would not operate as res-judicata in the subsequent proceeding. The Apex Court has also reiterated the said principle of law in another decision reported in Joginder Pal v. Indian Red Cross Society, AIR 2000 SC 3279 . 18. It is therefore crystal clear that the petitioner has got the liberty to establish her marital status or to claim the share of the properties of Sk. Munna since deceased in a subsequent civil suit. 19. The petitioner has however failed to show any illegality in the order and judgment passed by learned trial court as well as by learned appellate Court. I do hold that learned Courts below did not commit any illegality while passing the orders under challenge and the instant petition being devoid of merit, is liable to be dismissed. 20. The application is thus rejected. 21. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.