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2022 DIGILAW 658 (AP)

Goginapudi Varalaxmi v. Goginapudi Varajalamma

2022-07-19

TARLADA RAJASEKHAR RAO

body2022
JUDGMENT : 1. Heard Smt S.A.V.Ratnam, learned counsel for the appellants and Sri M. Bala Subramanyam, learned counsel for the respondents. 2. The present Appeal is filed under Section 384 of Indian Succession Act r/w Section 19 of the Family Courts Act assailing the Order dated 31.10.2005 in S.O.P.No. 1440 of 2000 on the file of the learned Judge, Family Court, Visakhapatnam. 3. The facts of the case are like this:- The respondent nos.1 and 2 herein filed a petition under Section 372 r/w 33 of the Indian Succession Act for issuance of the succession certificate to declare them as legal heirs of the deceased late Goginapudi Venkata Ramana (hereinafter referred to as “the deceased”) as class-I legal heirs of the deceased to realize the terminal benefits of late Goginapudi Venkata Ramana, who worked as peon-cum-messenger vide code no. 15559 in Andhra Bank, Chodavaram Branch. 4. The case of the 1st respondent herein is that she got married to the deceased as per the Hindu rites and customs and they lived happily for about three (3) years. Later, the deceased got employed as Messenger in Andhra Bank, Yellamanachili Branch and he got addicted to bad vices. As such the 1st respondent has left to her parents’ house. The deceased used to come occasionally to her parents house. Though the dispute was brought before the elders in the panchayat, it yield no result. Later, she filed M.C.No.16 of 1992 before the learned Judicial First Class Magistrate, Narsipatnam for maintenance and also she filed another petition for enhancement of the maintenance. Both the petitions were allowed. 5. As per the averments in the petition filed for succession certificate, the 1st respondent herein got married to the deceased at Pappusettipalem Village of Golugonda Mandal, Visakhapatnam District and he died intestate on 18.01.2000. Immediately after the death of the deceased, the 1st respondent sent notice dated 27.10.2000 to the respondent nos.6 and 7, who were the Zonal Officer, Andhra Bank and Branch Manager, Andhra Bank, Chodavaram respectively for the retirement benefits. She also issued another notice dated 16.03.2000 seeking compassionate appointment on compassionate grounds. Immediately after the death of the deceased, the 1st respondent sent notice dated 27.10.2000 to the respondent nos.6 and 7, who were the Zonal Officer, Andhra Bank and Branch Manager, Andhra Bank, Chodavaram respectively for the retirement benefits. She also issued another notice dated 16.03.2000 seeking compassionate appointment on compassionate grounds. An application was made to the Revenue Inspector for issuance of legal heir certificate for the purpose of claiming terminal benefits of the deceased, the Revenue Inspector has returned the application with an endorsement dated 18.05.2000 stating that the appellants herein are the legal heirs of the deceased, hence, the Revenue Inspector directed them to obtain the Succession Certificate from the competent Court which gave rise to file the present petition for issuance of Succession Certificate. 6. After service of the notice, the appellants herein, who were the respondent no.1 to 4 (hereinafter called as “the appellants”) in Succession O.P. filed their counter affidavits and contested the matter stating that the 1st respondent herein got married to the deceased in the year, 1989 and they got three children in their wedlock. The deceased has given customary divorce to the 1st respondent and the same is mentioned in the registered Will Deed document bearing no. 1692 of 1998 dated 19.09.1998 and the appellants herein were given some properties though the appellants prayed to dismiss the O.P. filed for Succession Certificate. 7. The 3rd respondent herein is the mother of the deceased. 8. The official respondents who were arrayed as respondent nos.4 and 5 herein have filed their counter affidavit asserting that the 1st appellant, Goginapudi Varalaxmi was nominated to receive all his retirement benefits and also they have issued a demand draft in favour of the 1st appellant herein towards gratuity and leave salary. Further, an amount of Rs.20,000/- was kept in Kalpataruvu term deposit in the name of Sri G.S.G.V. Prasad in KD No.49/962 and an amount of Rs.30,000/- was kept in deposit in the name of G. Ratnaprabha in KD No.50/93 and all the three deposits were matured by 21.10.2008 and the three deposits are freezed in view of the pending litigation. They also further asserted that the deceased has given divorce to Smt Varahalamma, who is the 1st respondent herein. 9. Initially, the succession O.P. was filed before the Principal District Court and the same was made over to the Family Court, Visakhapatnam on administrative grounds. 10. They also further asserted that the deceased has given divorce to Smt Varahalamma, who is the 1st respondent herein. 9. Initially, the succession O.P. was filed before the Principal District Court and the same was made over to the Family Court, Visakhapatnam on administrative grounds. 10. The learned Family Court Judge, by controverting the contents contained in the petition and the counter and re-iterating the pleadings of the petitioners in the wake of the evidence of the parties, framed the relevant issue, Whether the petitioners (respondent nos.1 and 2 in the C.M.A.) are entitled for succession certificate as prayed for ? 11. The contention of the 1st respondent herein is that she got married with the deceased and she filed maintenance case and it was never stated in the counter filed by the deceased that the deceased divorced his 1st wife and got married to the 1st appellant herein. She also stated that there is no such customary divorce taken place in between the 1st respondent herein and the deceased. 12. The contention of the 1st appellant herein is that the deceased divorced his 1st wife, Smt Varahalamma by customary divorce. Later, the deceased married the 1st appellant herein and the same is asserted in the Will. 13. After considering the evidence on both sides, the learned Judge held that the 1st appellant herein has failed to prove the Will which was executed by the deceased as per Section 68 of the Indian Evidence Act, by examining atleast one attestor to the Will, by relying on the Judgment in “Satyavathi V. P. Venkata Ratnam, 1988 (1) ALT page 915” and held that unproved Will cannot be said to be a proof of the customary divorce. The Court further observed that unless divorce has been categorically proved it shall be construed that the marriage of the deceased with the 1st respondent shall be continued by taking the presumption under Illustration (d) to Section 114 of the Indian Evidence Act which reads as follows:- “Once a state of thing is shown to exist there is a presumption of its continuance”, as held by the Hon’ble Supreme Court in “Ambica Prasad V. Ram Ikbal Rai, AIR 1966 SC 505”. 14. The learned Judge, eventually held that no divorce has taken place in between the 1st respondent herein and the deceased as the 1st appellant failed to prove the customary divorce between them. 14. The learned Judge, eventually held that no divorce has taken place in between the 1st respondent herein and the deceased as the 1st appellant failed to prove the customary divorce between them. It is further held that there is no such custom prevailed in the community of the deceased and eventually granted succession certificate in favour of the 1st and 2nd respondents herein, who are the wife and daughter of the deceased. 15. Aggrieved by the Order dated 31.10.2005 in S.O.P.No.1440 of 2000, the present Appeal came to be filed by the appellants herein. 16. The following issues are relevant for disposal of the present Appeal which emanated from the record and on oral submissions raised by the 1st appellant: i. Whether the 1st appellant herein has ably proved that there is customary divorce prevailing in the caste ? ii. Whether Suit for Declaration has to be filed necessarily for claiming retirement benefits of the deceased under Section 372 of the Indian Succession Act ? iii. Whether the application for such Certificate shall be made to the District Judge under Section 372 of the Indian Succession Act ? 17. It is the further contention of the learned counsel for the appellants that, the Court below ought to have been taken the factum of customary divorce which is asserted in the Will. 18. Answering to the first contention, as per the settled proposition of law, Hindu marriage can be dissolved only in accordance with the provisions of the Hindu Marriage Act, 1955 as held by the Hon’ble Supreme Court in “Subramani V. M. Chandralekha, 2005 (9) SCC 407 ”, “Yamanaji H. Jadhav Vs. Nirmala, 2002 (2) SCC 637 ”, “Swapnanjali Sandeep Patil v. Sandeep Ananda Patil, 2019 SCC Online SC 329” 19. If customary divorce practice is claimed in caste or a community the same needs to be clearly established and under Section 29(2) of the Act, saves and recognizes the customary divorce. Section 29(2) of the Hindu Marriage Act (for short, “the Act”) is quoted hereunder:- “Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commence of this Act.” 20. Section 29(2) of the Hindu Marriage Act (for short, “the Act”) is quoted hereunder:- “Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commence of this Act.” 20. As per the enactment of the Hindu Marriage Act, matrimony that which is containing rights and obligations is governed by the provision of Section 29 of the Act. Section 29 is an exception to the Act, which saves custom from the applicability of the Act must be strictly established by clear and cogent pleadings and reliable evidence. Custom therefore must be proved and established as a fact. Even though customary divorce is permissible in one caste and community, in the absence of such evidence Courts are not justified in interfering unless it has been proved. 21. The present case discloses a failure on the part of the appellants to establish by cogent evidence, the nature and particulars of the custom. No witness was examined by the 1st appellant herein, to place on record any such facts and circumstances to show that the customary divorce has taken place. The 1st appellant has failed to lead any evidence as to nature, mode and manner of the divorce where burden is upon the 1st appellant under Section 101 of the Indian Evidence Act which clearly lays down that, “the burden of proving fact always lies on the person who asserts”. The 1st appellant who asserted that the deceased has given customary divorce to the 1st respondent herein has to establish the customary divorce. As a result, the findings of fact recorded by the learned Family Court Judge dissuades me from taking a contrary view relying on the afore cited decisions from the finding arrived by the trial Court. 22. So, even assuming that Will need not required to be proved for a while for the present facts of the case, the factum of customary divorce has to be proved in accordance with law. Mere the assertion of the customary divorce in the Will cannot be construed as there is a customary divorce unless it is proved by leading evidence. 23. In “Smt Sarabati Devi and another Vs. Mere the assertion of the customary divorce in the Will cannot be construed as there is a customary divorce unless it is proved by leading evidence. 23. In “Smt Sarabati Devi and another Vs. Smt. Usha Devi, AIR 1984 SC 346 ”, the Hon’ble Supreme Court has held that mere nomination does not have the effect of conferring on the nominee, any beneficial interest on the death of the deceased-assured. The nomination only indicates the hand which is authorized to receive the amount. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. 24. The second contention of the appellant is that, Section 372 of the Indian Succession Act has no application and the 1st respondent ought to have filed a Suit for Declaration is maintainable under Section 372 of the Indian Succession Act. In order to answer the said contention this Court relies on the Judgment of the Hon’ble Supreme Court in “Madhavi Amma Bhavani Amma V. Kunj Kutti Pillai Meenakshi Pillai, 2000 (6) SCC 301 ”, wherein, after considering the provisions of Sections. 372, 373, 387 and 381 of the Indian Succession Act, the Hon’ble Court held that:- “So, this certificate merely affords full indemnity to the debtor for the payments he makes to the person holding such certificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certificate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subseqently interse between the claimants. The use of words "good faith" in Section 381 reinforces that decision in these proceedings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may in future better claimant but that would not affect the indemnification of the debtor. The use of words "good faith" in Section 381 reinforces that decision in these proceedings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may in future better claimant but that would not affect the indemnification of the debtor. Thus we find accumulatively because of the grant of Succession Certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subsequent proceeding it may be held it to belong to other claimant, including the contesting parties”. [Emphasis Supplied] 25. The very purpose of issuing of the certificate is to absolve the debtor to pay the debts or the securities as specified in the certificate to the holder of the certificate and conclusively concludes that his part of obligation of such payment is construed to be in good faith and it not debars the aggrieved person to be questioned in subsequent suit under Section 387 of the Indian Succession Act, when the succession certificate issued under Section 372 of the Indian Succession Act. 26. Learned counsel for the appellant relied on the Judgment of the Madras High Court in “D. Gopi Vs. Nil” in C.R.P.No.378 of 2021 in 17.03.2021. In the present C.R.P., the petitioner herein has sought for compassionate appointment by producing a legal heir certificate. But the authorities have directed the petitioner therein to obtain the Succession Certificate. The petitioner filed Succession O.P. before the jurisdictional Court without any documents. Hence, the jurisdictional Court has directed to resubmit the petition by filing appropriate documents. Aggrieved by the said Order, the petitioner filed the above C.R.P. before the High Court of Madras, where, the High Court has dismissed the C.R.P. confirming the Order passed by the Court below and no law was laid in the said C.R.P. Hence, it is no way helpful to the present case. 27. Aggrieved by the said Order, the petitioner filed the above C.R.P. before the High Court of Madras, where, the High Court has dismissed the C.R.P. confirming the Order passed by the Court below and no law was laid in the said C.R.P. Hence, it is no way helpful to the present case. 27. The third contention raised by the appellant herein is that an application before the Family Court Judge is not maintainable and application under Section 372 of the Indian Succession Act has to be invariably file before the District Judge. The Order impugned in this Appeal, passed by the Family Court Judge, is not having jurisdiction as per Section 372 of Indian Succession Act. Hence, prayed to set aside the order. Under Clause (2) of Section 388 of the Indian Succession Act, “any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this part upon the District Judge, and the provisions of this part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge”. As per the said provision, any inferior Court shall be construed as if it were a District Judge. Where in this case, the learned District Judge has made over the case to the Family Court Judge on the administrative grounds. Hence, the contention that the Family Court Judge has no jurisdiction has no force. In view of the above Section, any inferior Court is having jurisdiction to grant Succession Certificate under Section 372 of the Indian Succession Act. 28. Having completed all the modal formalities and taking into consideration the entire evidence brought on record in the right perspective, the Court below recorded the finding of the fact that the appellants herein have not proved the Will in accordance with Section 68 of the Indian Evidence Act and the customary divorce which prevailed in their caste and the divorce was granted by the deceased to his 1st wife by the customary divorce. 29. Eventually, the appellants failed to discharge the burden to prove that the custom prevailed in their caste and the 1st respondent was given divorce by the deceased in the customary law and miserably failed and did not produce any cogent and convincing evidence in this relevant connection. 30. 29. Eventually, the appellants failed to discharge the burden to prove that the custom prevailed in their caste and the 1st respondent was given divorce by the deceased in the customary law and miserably failed and did not produce any cogent and convincing evidence in this relevant connection. 30. The appellants herein have also not adduced any evidence to show that the appellant got married with the deceased Venkat Ramana and they lived together as man and wife any period of consideration time and the respondent nos.2 to 4 were born to them in their wedlock. 31. After considering the evidence and after deep consideration of the entire matter, there is no merit in the instant case in this context. 32. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the Order dated 31.10.2005 in S.O.P. No.1440 of 2000. There shall be no order as to costs. Miscellaneous Petitions pending, if any, shall stand closed.