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2022 DIGILAW 490 (JK)

Mst. Sara Begum v. State of J. & K.

2022-09-13

M.A.CHOWDHARY

body2022
JUDGMENT : 1. Appellant Mst. Sara moved an application for issuance of Succession Certificate before District Court Baramulla, claiming that she being real and legal heir of her deceased husband Abdul Aziz Bhat S/O Lassi Bhat R/O Buchoo Distrtict Baramulla is entitled to certificate under Succession Certificate in respect of Rs. 24,000/- as pension of 8 months w.e.f. February 2008 to September 2008 under PP No. 37174-C at J&K Bank Tarzoo, Sopore left behind by deceased. She had not impleaded any other person as party except the general public and in pursuance to public notice nobody appeared to resist the claim of the petitioner and on recording the evidence of her witnesses the District Court Barmulla, vide order/judgment dated 8.11.2008 passed in file No. 85/S granted the succession certificate in her favour. 2. Respondents 5 to 8 moved an application for revocation of the Succession Certificate issued by District Court in favour of appellant Mst. Sara on the grounds that respondent Raja Begum was wife of the deceased whereas other respondents are his children and alleged that the appellant had fraudulently obtained the certificate which is liable to be cancelled and it was further prayed to revoke the said certificate and a fresh certificate was prayed to be issued in their favour and the amount received by the appellant herein be also refunded by her. It was alleged by them that the appellant Mst. Sara who was married to the deceased had been divorced some 16 years before the death of the deceased and she had been paid all whatever was due to her at the time of divorce. It is further pleaded that the deceased had six wives namely 1. Mst. Jumli, 2. Mst. Bega 3. Mst. Haseena 4. Mst. Rathi 5. Mst. Sara and 6. Mst. Raja Begum, out of whom Mst. Rathi and Mst. Haseena have died issueless; whereas Mst. Sara who also had no issue was divorced . Mst. Bega had one son namely Gh. Hassan Bhat from the deceased and she too had been divorced; whereas Mst. Jumli who had passed away had four children namely 1. Mohd. Sultan Bhat 2. Ali Mohammad Bhat 3. Mst. Zaina and 4. Mst. Sara. Haseena have died issueless; whereas Mst. Sara who also had no issue was divorced . Mst. Bega had one son namely Gh. Hassan Bhat from the deceased and she too had been divorced; whereas Mst. Jumli who had passed away had four children namely 1. Mohd. Sultan Bhat 2. Ali Mohammad Bhat 3. Mst. Zaina and 4. Mst. Sara. It was also alleged that the appellant while filing application for grant of Succession Certificate had not arrayed any of the family members or near relatives of the deceased as party which was requirement under Sub clause (c) of clause (1) of Section 6 of the Succession Certificates Act. They also alleged that public notice was published in an unpopular daily newspaper “Roshini” which had a very limited circulation in the valley and that the appellant Mst. Sara by misrepresenting in the court received the monthly family pension from District Treasury Baramulla. 3. After recording the evidence and hearing both the parties the learned District Judge Baramulla vide judgment dated 04.12.2013 passed in file Succession Revocation No. 163/2009, ordered revocation of the Succession Certificate issued in favour of the appellant and it was directed to recover the said amount from the appellant and disburse among the respondents 5 to 8 herein as per following shares : i/ Petitioner No. 4 (Widow) shall get 1/8th share out of total amount of Rs. 24000/- i.e. Rs.3000/- ii/ Petitioner No. 2 (Son) shall get two shares out of remaining amount of Rs. 21000/- i.e. Rs. 14000/- iii/ Petitioner No. 3 (dauther) shall get one share out of remaining amount of Rs. 21000/- i.e. Rs. 7000/-. It was further directed that the DDO of the concerned Department shall forward the case for grant of family pension in favour of the persons entitled under the rules governing the same and that this certificate is granted purely for the collection of amount in question. 4. Aggrieved of order/judgment dated 04.12.2013 ( hereinafter called impugned order) the appellant has challenged the same on various grounds that she was widow of deceased Ab. 4. Aggrieved of order/judgment dated 04.12.2013 ( hereinafter called impugned order) the appellant has challenged the same on various grounds that she was widow of deceased Ab. Aziz Bhat and that no issue had borne out of the wedlock; that she was holding a ration card to take ration from CA&PD Department; that will deed had been executed in her favour by the deceased on 3.11.2003 that after the death of the deceased the appellant being the sole legal heir shall be entitled to the GPF from the Department of Sericulture bearing Account No. 57522 and had also stated that she shall be the owner of the land which had been described in the will deed; that she had been rightly granted Succession Certificate issued by the District Court concerned vide order dated 8.11.2008 and that she had received pension from the Bank; that the private respondents 5 to 8 had malafidely approached the District Court for revocation of Succession Certificate and vide impugned order, the official respondents were directed for stopping the pension of the appellant vide No. PP37174. It was alleged that the respondent No. 8 had been divorced by the deceased (husband of the appellant) way back in the year 1991 and the District Court had not appreciated the evidence and documents produced by the appellant. It was finally prayed that the impugned revocation order dated 04.12.2013 be quashed directing the respondents to release the pensionary benefits of the deceased in favour of the appellant and also directed the respondents to stop the pensionary benefits of the private respondents. 5. The official respondents 1 to 4 are represented by Govt. Advocate whereas private respondents 5 to 8 vide interim order dated 04.06.2014 had been proceeded ex-parte as they did not appear despite deemed service of notice served through postal service. 6. Heard and considered. 7. Learned counsel for the appellant, vehemently, argued that the appellant had been rightly granted Succession Certificate in the year 2008 and the private respondents have misrepresented before the District Court and the Court below misdirected itself and wrongly appreciated the evidence and revoked the certificate granted in favour of the appellant earlier. He has argued that the appellant had no issue out of the wedlock with the deceased husband and she had been living with the husband till his death and had not been divorced as held by the court below. He has argued that the appellant had no issue out of the wedlock with the deceased husband and she had been living with the husband till his death and had not been divorced as held by the court below. He also argued that the appellant was entitled not only to the amount reflected in the certificate granted in her favour but also to receive family pension of the deceased and prayed that the impugned judgment be set aside and the certificate granted to her in the year 2008 be revived. 8. Ms. Rekha Wangnoo, GA learned counsel for the official respondents argued that the dispute is inter-se the appellant and the private respondents as such the official respondents have no role in terms of the certificate issued in their favour by the competent court of law and prayed that the appropriate order be passed which shall be complied with by the official respondents. 9. During the pendency of this appeal the respondent No. 8 died and the learned counsel for the appellant had stated that there was no other legal heirs of her except respondents 5 to 7 who are already on record. The court vide order dated 30.6.2022 directed Registry to delete the respondent no. 8 from the array of respondents. 10. The deceased Ab. Aziz Bhat was working in Sericulture Department and after his retirement the issue of family pension arose. The appellant had in the first instance succeeded to obtain the Succession Certificate to the extent of Rs. 24,000/- as pension arrears for the Period Feb. 2008 to Sept. 2008 only. However, this Succession Certificate was sought to be revoked by the private respondents including another wife of the deceased, two sons and a daughter. During the proceedings for revocation of certificate the private respondents besides one of them namely Mohd. Ayub Bhat examined, Gh. Ahmed Parra, Ali Mohd. Bhat, Gh. Mohd. Baba and Gh. Ahmad Dar as their witnesses whereas appellant had examined on her behalf Gh. Ahmad Parra and Gh. Nabi. After appreciating rival evidence in support of claim and counter claim, the District Court came to the conclusion that the appellant had suppressed while praying for the issuance of succession certificate, the fact that the deceased Ab. Aziz was survived by his children, the petitioners 1 to 3 and widow Raja Begum petitioner no. Ahmad Parra and Gh. Nabi. After appreciating rival evidence in support of claim and counter claim, the District Court came to the conclusion that the appellant had suppressed while praying for the issuance of succession certificate, the fact that the deceased Ab. Aziz was survived by his children, the petitioners 1 to 3 and widow Raja Begum petitioner no. 4 therein and on this count the Succession Certificate in her favour was held liable to be revoked/recalled. The court also came to the conclusion that the appellant had been divorced by the deceased much prior to his death and she had no issue out of the wedlock. The appellant at the time of initial application before the District Court had moved the same knowing well that there were other legal heirs of the deceased and had not arrayed them as parties to her petition, therefore, the District Court rightly revoked the certificate having been obtained on suppression of the important facts with regard to the legal heirs of the deceased. This court does not find any fault with the impugned order in terms whereof the certificate dated 8.11.2008 granted in favour of the appellant vide impugned judgment dated 04.12.2013, so as to warrant any interference by this Court in Appeal. 11. The parties having ticklish nature of the legal heirs, there being seven wives of the deceased and as per the pleading even Mohd. Sultan Bhat, Ali Mohd. Bhat , Zaina and Sara were also his legal heirs having been borne out from one wife namely Mst. Jumli; whereas one Gh. Hassan Bhat was also his son borne out from womb of another wife Mst.Bega. Neither the appellant at the time of her application impleaded them as parties nor did private respondents at the time of seeking revocation of the certificate granted in favour of the appellant impleaded those persons. It would have been in the interest of justice that the parties would have filed civil suit to determine the rights inter-se. However, in view of the summary nature of the proceedings under the Succession Certificate Act the Ld. District Judge, Baramulla had decided the matter in right perspective and has not committed any error which may call for interference from this court in this appeal. 12. The appeal is found without any merit and substance and is accordingly dismissed. Impugned order is upheld. District Judge, Baramulla had decided the matter in right perspective and has not committed any error which may call for interference from this court in this appeal. 12. The appeal is found without any merit and substance and is accordingly dismissed. Impugned order is upheld. Trial court record is ordered to be sent down forthwith, alongwith a copy of this judgment.