Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 223 (MP)

Beharilal v. Public at Large

2021-02-24

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the parties, the matter is finally heard. 1. The present Civil Revision under Section 115 of C.P.C. has been filed challenging the order dated 20th February, 2020 passed by the Second Additional District Judge, Gwalior, whereby confirming the order dated 10.07.2019 passed by Vth Civil Judge, Class-I, Gwalior in M.J.C. Succession No. 18 of 2016 filed by Smt. Kiran Sharma, respondent No. 4 herein. 2. It is alleged that the petitioner is the brother of deceased Radhe Shyam Sharma and has preferred an application under Section 372 of Indian Succession Act claiming issuance of succession certificate with respect to the properties left behind by his brother the deceased Radhe Shyam Sharma. The application filed by the petitioner was registered as MJC No. 21/2016. Another application seeking succession certificate was filed by respondent No. 4 Kiran Sharma, claiming herself to be the daughter of the deceased Radhe Shyam Sharma and she has also prayed for issuance of succession certificate. Both the applications were consolidated for analogous hearing by the learned Civil Judge and were considered and decided by a common order dated 10.07.2019. 3. It is alleged in the application filed by the revisionists that he is the brother of deceased Radhe Shyam Sharma, who has passed away while in service. He was having a daughter Kiran Sharma, who was disowned by him as without his permission she has left the house and gone somewhere. The declaration with the aforesaid fact was published in a Daily News Paper. It is argued that he is the nominee in L.I.C. policy of the deceased Radhe Shyam Sharma and also in nominee in the Account hold by deceased Radhe Shyam Sharma. He has also received the expenses towards the funeral from the department and leave encasement to the tune of Rs. 1,53,541/- vide cheque No. 009777 dated 31.10.2015. It is alleged that as late Radhe Shyam Sharma has left her daughter and made him a nominee in the documents as well as in the accounts maintained by him, in such circumstances, he is the only legal successor of late Radhe Shyam Sharma. He has also got executed a registered will in favour of the revisionists which is at Exhibit P/3. It is submitted that in such circumstances, he is entitled for succession certificate from the competent Courts for which he has applied. He has also got executed a registered will in favour of the revisionists which is at Exhibit P/3. It is submitted that in such circumstances, he is entitled for succession certificate from the competent Courts for which he has applied. As on the objection being made by respondent No. 4, the department is not releasing the other service benefits of late Radhe Shyam Sharma to the revisionists. 4. The learned trial Court has not considered the aforesaid aspects of the case and has relied upon the Section 8 of the Hindu Succession Act, 1925, and give a succession certificate to the revisionists holding that mere nomination in the documents does not entitle him to the service benefits as the legal heir of Class I is still surviving i.e. the respondent No. 4 who is the daughter of the deceased Radhe Shyam Sharma and in terms of Rule 8 of the Hindu Succession Act, 1956 which deals General Rules of succession in the case of males and provides that a property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter. (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule and as per Class I of the Schedule the daughter i.e. respondent No. 4 is a Class I and she is surviving. Therefore, no such certificate can be issued in favour of the revisionists. Accordingly, the application filed by the revisionists claiming succession certificate was rejected and on the contrary, the application filed by the respondent No. 4 claiming the succession certificate on the ground that she is the only the Class I heir surviving and was entitled for all the benefits of late Radhe Shyam Sharma. The learned trial Court has arrived at the conclusion that she is entitled for succession certificate and accordingly directed for grant of succession certificate in favour of respondent No. 4. 5. The counsel for the revisionists has further pointed out that in the statement of respondent No. 4 recorded before the trial Court, she has admitted the factum of signatures of late Radhe Shyam Sharma on the so called will. The aforesaid aspect was not considered by the trial Court. 5. The counsel for the revisionists has further pointed out that in the statement of respondent No. 4 recorded before the trial Court, she has admitted the factum of signatures of late Radhe Shyam Sharma on the so called will. The aforesaid aspect was not considered by the trial Court. Even the other aspects that Radhe Shyam Sharma has appointed him as nominee in the L.I.C. policy as well as in the bank accounts which were hold by him during his life time and his daughter was not made a nominee in those accounts. In such circumstances, no benefits should have been extended to the respondent No. 4 as she was disowned by late Radhe Shyam Sharma way back in the year 2015 itself. The order passed by the learned trial Court dated 10.07.2019 passed in MJC Succession No. 2700021/2016 was put to challenge by filing an appeal which was registered as MCA No. 1169/2019 and the learned appellate Court after going through the entire record of the trial Court and after hearing the parties has finally decided the appeal vide order dated 20th February, 2020 and has confirmed the order passed by the trial Court. Both the orders are put to challenge in the present petition. 6. Per contra, counsel appearing for the respondent No. 4 has denied all the arguments of the revisionists and has pointed out that orders passed by the trial Court as well as the appellate Court are just and proper and does not call for any interference in the revision. There are concurrent findings of both the Courts below. The so called registered will in favour of the revisionists was not proved from the competent Courts and no probate was obtained by the revisionists. Thus, on the basis of the will which is not proved, no benefit could have been extended. The will is extended to be proved in terms of Section 372 of the Succession Act. The manner in which the will is required to be proved is clearly provided under the Succession Act. Heavy burden is upon the person claiming benefits of the will. The burden is not discharged by the revisionists. Therefore, the will was proved at any point of time. The manner in which the will is required to be proved is clearly provided under the Succession Act. Heavy burden is upon the person claiming benefits of the will. The burden is not discharged by the revisionists. Therefore, the will was proved at any point of time. Merely nominee in documents i.e. L.I.C. policy and bank accounts does not entitle to receive all the benefits of late Radhe Shyam Sharma as he is a Class II heir and once Class I heir is still surviving no benefits of late Radhe Shyam Sharma could have been extended. Therefore, the learned Court below has rightly denied for issuance of succession certificate in favour of the revisionists finding him to be a Class II heir. Prayer is made for dismissal of the revision. 7. Heard the learned counsel for the parties and perused the record. 8. The undisputed facts in the present case are that the revisionists is the brother of the deceased Radhe Shyam Sharma and respondent No. 4 is the only surviving daughter of late Radhe Shyam Sharma. The revisionists is a Class II heir and the respondent No. 4 is the Class I heir as per the Hindu Succession Act, 1956 in Schedule I and Schedule II. The registered will which has been produced by the revisionists was not proved by reading cogent evidence. He was required to obtain a probate with respect to the aforesaid will and only thereafter the matter with respect to issuance of succession certificate can be considered. Section 8 of Hindu Succession Act, 1956, deals with the General rules of succession in the case of males which is read as under:- "8. General rules of succession in the case of males:- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule. (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased". 9. (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased". 9. From the perusal of the aforesaid rules, it is apparently clear that the property of a male Hindu dying intestate shall devolve of the relatives are specified in Class I of the Schedule and if none for the relatives specified in Class I are available then Class II Schedule. The Schedule I clearly shows that respondent No. 4 being a Class I heir and Schedule II, the brother is being reflected as Class II heir. Mere mentioning of a name as a nominee in certain documents does not entitle the revisionists to claim all the service benefit as the nominee is only a person who is considered to be a custodian or the part of beneficiary of the documents in which his name appears to be a nominee. The benefits L.I.C. Policy have already been extended to the revisionists, therefore, no comments have been made as far as the L.I.C. policy is concerned by both the Courts. As far as the bank accounts are concerned, a specific objection was raised by respondent No. 4 with respect to entitlement of the revisionists on the basis of a will. Therefore, he was required to obtain a probate upon the will which is not being done in the present case. 10. Learned appellate Court in paragraph 16 of the judgment has considered the aspect that the will i.e. Exhibit P/3 was not proved by the revisionists in accordance with the proceedings on Hindu Succession Act. None of the witnesses of the will were examined in support of the will. Merely admissions with respect to signatures of the father on the will document does not amount to the will being executed in favour of the revisionists. There is a specific procedure prescribed for getting the probate and heavy burden upon the propounder of the will. In such circumstances, no benefit could have been extended to the revisionists on the basis of the will in question. There is a specific procedure prescribed for getting the probate and heavy burden upon the propounder of the will. In such circumstances, no benefit could have been extended to the revisionists on the basis of the will in question. Accordingly, the orders passed by the learned trial Court and the appellate Court are just and proper does not call for any interference in the present revision. The Civil Revision sans merits and is hereby dismissed.