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2021 DIGILAW 390 (CAL)

Shiv Charan Majhi v. Radha Bai

2021-09-09

HARISH TANDON, SHIVAKANT PRASAD

body2021
JUDGMENT : H Arish Tandon, J. 1. The applicants are the brothers of the deceased and have filed the instant appeal assailing the order No.20 dated 29th April, 2021 passed by the Civil Judge (Senior Division)/District Delegate, Andaman and Nicobar Islands in M.J. Case No.6 of 2018 by which the succession certificate was granted in favour of one Radha Bai. The aforesaid applicant, Radha Bai applied for succession certificate as widow of one late Sachindra Manjhi who died on 15th January, 2013 in respect of his service benefits as he was employed in the office of the Executive Engineer, Electricity Department, Middle Andaman. The aforesaid application was taken out under section 372 of the Indian Succession Act and apart from the special notice, general notice was also published in the newspapers widely circulated in the islands. The proceeding thereafter was taken up ex parte and on the basis of the materials produced before the learned Court the succession certificate was granted in her favour. 2. The present application is taken out by the brothers of the said deceased solely on the ground that the said Radha Bai was not a legally wedded wife of the deceased as he had surviving wife residing in the mainland. In other words, it is sought to be contended that the deceased married a lady who is residing in the mainland and such marriage was not severed by a decree of divorce. The application for leave to file appeal under section 384 of the said Act has been taken out solely on such ground. 3. At the time of admitting the appeal a point arose whether the present appellants have locus standi to maintain an appeal or in other words they are the persons aggrieved by an order granting succession certificate in favour of the said Radha Bai. 4. Mr.KMB Jayapal, learned advocate appearing for the applicants submits that section 372 of the Act requires the disclosure of the family or near relatives of the deceased and their respective residences and the applicants being the brothers of the deceased are the family and near relatives of the deceased, their names ought to have been disclosed therein and having not disclosed so the succession certificate is required to be revoked and/or cancelled and the applicants have right to maintain the appeal as persons aggrieved. 5. 5. It is no doubt true that section 372 of the Act requires requisite particulars to be disclosed in an application for certificate made before the District Judge and one of such condition under clause (c) of sub- section (1) of the aforesaid section requires disclosure of the family or other near relatives of the deceased or their respective residences. 6. The seminal question which has cropped up in the instant application for leave to appeal is whether the brothers of the deceased can maintain an appeal against the grant of succession certificate if they are not Class-I heirs. The aforesaid observation is made for the simple reason that the applicants have disclosed that the deceased has a subsisting wife who is admittedly a class-I heir. It is no doubt true that the applicants are the class-II heirs and can inherit the estate of the Hindu male provided he does not leave class-I heirs. The law is well settled that if the deceased has a class-I heir it necessarily excludes the heirs of other class. Whether the expression ‘family or other near relatives’ appearing in section 372 of the Act includes any person who is in relation or a part of the family if he is neither class-I or class-II heirs to succeed the estate of the Hindu male. 7. Section 33 (a) of the Act exposes who could be lineal descendants whereas section 25 defines ‘lineal consanguinity”. The aforesaid provision in somewhat similar circumstances came up for consideration before the Supreme Court in the case of Joseph Easwaran Wapshare and others Vs. Shirley Katheleen Wheeler, reported in (2019) 5 SCC 58 , wherein it is held:- “13. It will be noticed that the respondent describes herself as the wife of the late A.J. Wheeler and daughter only of the late Beatrice Wapshare. Edward Wapshare’s name is conspicuous by its absence, making it clear that she was, by no means, a lineal descendant of Edward Wapshare and therefore, has nothing whatsoever to do with the Wapshare family, Apart from this, since Gorden Wapshare died intestate, the will being set up in the application for probate having abated, Section 33(a) makes it clear that the intestate’s property goes only to his widow and his lineal descendants. The appellant is today the only living lineal descendant, together with his two sons of Gorden Wapshare. The appellant is today the only living lineal descendant, together with his two sons of Gorden Wapshare. This would again make it clear that, in any event, the respondent would have no interest whatsoever either as a member of the Wapshare family or as a lineal descendant in setting aside the succession certificate so granted as she is neither a family member nor a lineal descendant as has been held hereinabove. It may only be added that the High Court was correct in setting aside Sub-Judge’s order on his finding on res judicata, but that was not the end of the matter. The High Court ought to have gone into the other two grounds, which found favour with the Sub-Judge, which it did not do.” 8. The present applicants are not class-I heirs and the learned District Delegate after considering the materials produced before it held that the said Radha Bai is legally wedded wife and therefore is entitled to a succession certificate. Even if the case of the applicants is taken to be true, they do not come within the purview of class-I heirs as the deceased had a subsisting wife who can claim as class-I heirs. The said lady has not come forward challenging the grant of succession certificate and there is no material forthcoming that the applicant of the succession certificate is not a legally wedded wife of the deceased. Thus the applicants, being not the class-I heirs and do not fulfill the conditions enshrined under section 372 of the Act, cannot be regarded as persons aggrieved to challenge the order granting succession certificate. 9. The leave to appeal can be granted to a third party provided he is aggrieved by an order and not to any person espousing the cause of another. Even if the succession certificate is revoked it does not vest the estate of the deceased into the applicants in view of their own stand that the deceased has another subsisting wife. 10. The application for leave to appeal is rejected. Consequent thereupon the appeal fails and all the connected applications are hereby dismissed. SHIVAKANT PRASAD, J.- I agree.