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2024 DIGILAW 1046 (ALL)

Mukti Nath Giri v. State of U. P.

2024-04-12

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. This writ petition has been instituted by Mukti Nath Giri and his son Sunil Giri, praying that a writ in the nature of mandamus be issued, directing the respondents to release the entire retiral dues payable on account of the services of the Smt. Durgawati Giri, a Constable in the Police and payable to the petitioners. The retiral dues include the deceased's provident fund, group insurance, gratuity etc. They claim the aforesaid outstandings together with due interest. There is a further relief sought by the petitioners and that is to consider their claim for a compassionate appointment in accordance with rules, as Durgawati Giri died in harness. 2. The brief facts giving rise to this writ petition are these: Smt. Durgawati Giri was a Constable (Women) in the Uttar Pradesh Police. She was appointed on 1.12.1980. She died in harness on 9.7.1991. The service conditions of Smt. Durgawati Giri were governed by the U.P. Police Regulations, which, according to the petitioners, postulate that one member of the deceased's family is to be granted compassionate appointment in case of death in harness. It is also said the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (for short, 'the Dying in Harness Rules') are applicable in case of a police constable dying in harness. The petitioners say that after Smt. Durgawati Giri passed away on 9.7.1991, they received a letter dated 29.12.1993 from the Superintendent of Police, Hardoi, where the employee was posted at the time of her demise, regarding provision of pensionary benefits as well as the other due benefits, to which the petitioners are entitled in law. The Superintendent of Police required the petitioners to produce an order from the Court of competent jurisdiction, entitling them to receive pension and other dues earned by Smt. Durgawati Giri. 3. The petitioners applied for the grant of a succession certificate to the Civil Judge (Sr. Div.), Deoria under Section 372 of the Indian Succession Act, 1925 (for short, 'the Succession Act'). The petitioners' case was registered as Case No. 146 of 1999. It appears that one Rakesh Bihari Srivastava, his sons Anand and Vikas, and daughter Pragati, claimed to be Smt. Durgwati's husband and children, respectively. Div.), Deoria under Section 372 of the Indian Succession Act, 1925 (for short, 'the Succession Act'). The petitioners' case was registered as Case No. 146 of 1999. It appears that one Rakesh Bihari Srivastava, his sons Anand and Vikas, and daughter Pragati, claimed to be Smt. Durgwati's husband and children, respectively. It appears that Rakesh Bihari Srivastava had come up with a case that Durgawati had a child marriage with Mukti Nath Giri, but after attaining majority, she had secured a divorce from him. She married a second time Rakesh Bihari Srivastava and had three children born of the wedlock with Srivastava. She had made an application before the Superintendent of Police, Hardoi on 1.7.1991, informing him of her child marriage to the first petitioner, Giri and her divorce with him upon attaining majority. She also intimated the S.P. of the fact of her second marriage to Srivastava. 4. The narration of facts would be truncated if not taken note of that the respondents came up with a case that on 1.7.1991, Smt. Durgawati Giri, who was suffering from cancer at the time, made a request to the Superintendent of Police, Hardoi vide her application dated 1.7.1991 that she wants to nominate Rakesh Bihari Srivastava as her nominee in service records, and, that he alone should be paid her terminal dues in the event of her demise. It appears that Smt. Durgawati Giri died shortly after making the last mentioned application. She died on 9.7.1991. Considering the application made by the deceased constable on 1.7.1991 to the S.P., Hardoi, the Superintendent of Police, Deoria, the Station House Officer, Kotwali Hardoi and the Superintendent of Police, Hardoi sought necessary directions on 16.9.1991 from the U.P. Police Headquarters, Allahabad (now Prayagraj). The Police Headquarters, after scrutinizing the matter by a letter dated 13.9.1993, directed the Superintendent of Police, Hardoi that considering the dispute, payment of Durgawati's post retiral benefits be not made to anyone without the order of a Court of competent jurisdiction. 5. It appears that Rakesh Bihari Srivastava promptly applied for the grant of a succession certificate on 18.4.1994 to the Civil Judge, Hardoi, arraying the estate of Smt. Durgawati as the sole respondent. 6. The petitioners were not impleaded as respondents to the succession petition and the succession petition was allowed by the Civil Judge on 21.1.1995, directing the issue of a succession certificate in Srivastava's favour. 6. The petitioners were not impleaded as respondents to the succession petition and the succession petition was allowed by the Civil Judge on 21.1.1995, directing the issue of a succession certificate in Srivastava's favour. On the basis of the said order passed by the Civil Judge, a succession certificate, engrossed on stamp paper of the prescribed worth, was issued in favour of Srivastava on 31.1.1995. It is on the basis of the said succession certificate that all admissible post retiral dues, that Durgawati had earned, were paid to Srivastava, her second husband by the Finance Controller, U.P. Police Headquarters, Prayagraj. Also, a pension payment order was issued in Srivastava's favour by the Finance Controller, U.P. Headquarters, Prayagraj on 1.9.1995. 7. The petitioners applied for succession to the Civil Judge (Sr. Div.), Deoria in the year 1999, which was registered as Case No. 146 of 1999. A written statement in the said succession case was filed by the Superintendent of Police, Hardoi, a copy whereof is annexed as Annexure CA-7 to the counter-affidavit, where it is averred that all post retiral benefits have been paid to Srivastava, the deceased's second husband in accordance with the succession certificate dated 31.1.1995 issued in his favour. The petition for succession filed by the petitioners came to be allowed by the learned Civil Judge (Sr. Div.), Deoria vide order dared 20.11.2008. It is perhaps in the background of the earlier succession certificate in favour of Srivastava pleaded by the Superintendent of Police before the learned Civil Judge (Sr. Div.) that the learned Judge travelled much beyond the scope of proceedings for the grant of a succession certificate and held that there was no proof of divorce between the deceased and the first petitioner, Mukti Nath Giri. It was also remarked that in the absence of a divorce, there was no possibility of a valid second marriage with Srivastava under the law, and, particularly so for a Government servant. It was in the background of these facts that the learned Civil Judge, while allowing the succession certificate, passed an order, which reads more like a declaratory decree than an order granting a succession certificate. The order dated 20.11.2008 passed by the learned Civil Judge (Sr. Div.), Court No. 18, Deoria reads: 8. Pending admission, notice was issued on 7.11.2014. Later on, on 25.11.2014, further time was granted to the parties to exchange pleadings. The order dated 20.11.2008 passed by the learned Civil Judge (Sr. Div.), Court No. 18, Deoria reads: 8. Pending admission, notice was issued on 7.11.2014. Later on, on 25.11.2014, further time was granted to the parties to exchange pleadings. A supplementary-affidavit dated 9.11.2014 on behalf of the petitioners was filed. A counter-affidavit dated 16.2.2014 was filed on behalf the Superintendent of Police (Personnel), Headquarters, Prayagraj, to which the petitioners have filed a rejoinder-affidavit dated 24.7.2023. By an order dated 6.9.2023, Rakesh Bihari Srivastava son of Deen Dayal Srivastava, Anand and Vikas, sons of Rakesh Bihari Srivastava, besides Pragati, daughter of Rakesh Bihari Srivastava, with their complete particulars and address, were directed to be impleaded by this Court. Notice was directed to be issued to the newly added respondents. 9. A perusal of the office report dated 13.10.2023 shows that delivery of notice by registered post to the newly added respondent Nos. 5, 6, 7 and 8, to wit, Rakesh Bihari Srivastava and his children is confirmed. Service on the said respondents was, therefore, held sufficient vide order dated 13.10.2023. At the hearing, no one appeared on behalf of the said respondents or filed an affidavit. 10. It must also be noticed that by an order passed much earlier in the day, that is to say, on 13.1.2015, this Court while granting at the time, last opportunity to the respondents to file a counter-affidavit, directed them to produce the deceased's service record before the Court. Until 6.9.2023, this order had not been complied with. However, on 27.9.2023, the service records of the deceased were available to the learned Additional Chief Standing Counsel, which were directed to be retained. On 6.10.2023, these records were produced in Court and retained in a sealed cover. 11. It must be noticed here that when the original records were produced before this Court on 6.10.2023, while going through these, this Court noticed that there was on record a marriage certificate dated 8.4.1987, issued by the Registrar (Special Marriages), Hardoi under the Special Marriage Act, 1954, showing that the deceased Smt. Durgawati and respondent Rakesh Bihari Srivastava had got their marriage registered under the Special Marriage, 1954 on 8.4.1987 and the certificate would be effective from the said date. This Court directed the xerox copy of the certificate to be forwarded by the Registrar General to the Registrar (Special Marriages), Hardoi through the Collector, Hardoi, with a direction that a report be made by 11.10.2023, if the said certificate had been issued under the Act, last mentioned. 12. There is on record a report signed by the Special Marriage Officer/Sub-Divisional Magistrate, Sadar, Hardoi dated 9.10.2023 and a further report by the Additional District Magistrate, Finance and Revenue, District Hardoi, countersigned by the District Magistrate, Hardoi, also dated 9.10.2023, to the effect that upon examination of the records in the office of the Special Marriage Officer, Special Marriage Act, there were no records available, on the basis of which, the certificate issued to Srivastava and the late Smt. Durgawati can be verified. In short, the said marriage certificate has not been verified for want of records with the Special Marriage Officer concerned, discharging duties of the Registrar under the Special Marriage Act at Hardoi. 13. The parties having exchanged affidavits and all these proceedings over, when the matter came up on 13.10.2023, it was formally admitted to hearing, which proceeded forthwith. Judgment was reserved. 14. Heard Mr. Kedarnath Pandey, learned Counsel for the petitioners and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel appearing on behalf of respondent Nos. 1 to 4. 15. This Court has considered the rival submissions advanced by learned Counsel for the parties and also perused the record, the character and service roll, together with the other original records produced by the respondents. In the original character and service roll, that is to say, the late Durgawati's service book, which is a document of the time that she entered service or shortly thereafter, when the service book was constructed, the name of the late Durgawati's husband recorded is Mukti Nath Giri. The later application dated 1.7.1991 made by the late Durgawati Giri', days before her demise, shows that she attempted at that stage to alter her service records and introduce Srivastava's name as her husband, whom she claimed to have married, divorcing the first petitioner. No change to her service record, however, was made. This was the reason that both the first petitioner Mukti Nath Giri and Rakesh Bihari Srivastava, together with the children born of the deceased, were asked to secure a succession certificate in their favour. 16. No change to her service record, however, was made. This was the reason that both the first petitioner Mukti Nath Giri and Rakesh Bihari Srivastava, together with the children born of the deceased, were asked to secure a succession certificate in their favour. 16. Normally, the respondents ought to have gone by the service records, which mentioned for the deceased's husband, the first petitioner. Possibly, confronted with respondent Nos. 5, 6, 7 and 8's claim that was buttressed by the deceased's own application, the respondent Authorities directed parties to secure a succession certificate. Now, it is true that the first petitioner did apply with much delay for the issue of a succession certificate, whereas Srivastava, the fifth respondent, applied promptly. That by itself does not matter much so far as the rights of parties are concerned, except that if these rights are to be worked out and benefits paid in a manner different than that done by the respondent Authorities, the execution of the order would go through a hassled course. It would then be required to be seen as to how the rights of parties would be worked out, and, particularly, who would work out these rights and ensure their realization. So far, it is the fifth respondent who has walked away with all the benefits on the strength of the succession certificate that was issued on 31.1.1995. 17. It is particularly relevant to remark here that the succession certificate which Srivastava secured, a fact noticed earlier as well, was a certificate that was obtained by applying to the Civil Judge, Deoria without impleading the first petitioner as a party. When the first petitioner applied much later for the grant of a succession certificate, Srivastava was impleaded and heard. The Civil Judge (Sr. Div.), Deoria, who passed the judgment and order dated 20.11.2008 in Succession Case No. 146 of 1999, framed as many as five issues, which read (translated into English from Hindi): “(1) Whether the applicant is the deceased constable Durgawati Devi's husband? (2) Whether the applicant is entitled to receive dues of the deceased lady constable Durgawati Devi in the sum of Rs. 59,696/- together with 10% annual interest? (3) Whether this Court has jurisdiction to try the petition? (4) Whether the petition is time barred? (5) To what relief is the applicant entitled?” 18. It is the findings of the Judge on Issues Nos. 59,696/- together with 10% annual interest? (3) Whether this Court has jurisdiction to try the petition? (4) Whether the petition is time barred? (5) To what relief is the applicant entitled?” 18. It is the findings of the Judge on Issues Nos. 1 and 2 that alone would be of some relevance. We say, of some relevance, because the respondent Authorities have unnecessarily complicated matters. It was their duty to have paid off post retiral dues on account of the late Smt. Durgawati Devi's services to her nominee, that is to say, the first petitioner, whose name is recorded in the service book. The reason is that a nominee does not take the sum of money beneficially. He takes it subject to the lawful claim of any other heir of the deceased, who may prove it by suit. Likewise, the succession certificate too, issued under Section 372 of the Succession Act, does create any beneficial interest to or in the movable property, which it authorizes the holder of the certificate to collect or realize from a third party. The holder of a succession certificate also is no better than a nominee. He holds the movables of the deceased, on behalf of the lawful heirs, who may have a beneficial interest in the said property, may be a share alongwith the holder of the succession certificate, or to his exclusion altogether. It is, therefore, a uniform provision in service rules that where a deceased has made a nomination in favour of a person, who is prima facie entitled, say the deceased's spouse, the death-cum-retirement benefits are to be paid to the nominee. If, therefore, the respondent Authorities encountered a claim between two parties, both claiming to be the deceased's spouse, they should have asked the rival claimants to get a declaratory decree through a duly constituted suit. A succession certificate would do no more than what a nomination does. 19. So far as the effect of a nomination is concerned, the principle is enunciated by the Supreme Court in Shipra Sengupta v. Mridul Sengupta and others, (2009) 10 SCC 680 , in the following words: “17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in the present case, the deceased died on 8-11-1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one-half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same. 18. In view of the clear legal position, it is made abundantly clear that the amount under any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with the law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case the amounts so received are to be distributed according to the Hindu Succession Act, 1956.” 20. The position regarding the holder of a succession certificate has been elucidated in a Bench decision of the Calcutta High Court in Sandhya Banerjee v. Shyama Banerjee and another, 2010 SCC Online Cal 1355. In Sandhya Banerjee (supra), Bhaskar Bhattacharya, J. (as the learned Chief Justice then was), speaking for the Bench, held: “10. It is now settled law that a proceeding for grant of succession certificate is a summary one and it does not confer any title to the amount in favour of the certificate holder. Any finding recorded by a Court in such a proceeding as regards the relationship of the applicant or the objector with the deceased does not become binding in any subsequent suit for title. At the same time, simply because some disputed questions of fact are involved, a Court dealing with an application under Section 272 should not refuse to grant certificate on that ground alone as the debt due to the deceased may for not grant of certificate become barred or the ultimate heirs may be deprived of the interest on the amount of dues for delay in recovering the amount of debt. 11. 11. The position of a certificate holder has been succinctly described the Supreme Court in a recent decision in the case of State of Chhatisgarh v. Dhirajo Kumar Sengar, AIR 2009 SC 2568 : 2009 (13) SCC 600 , in the following way: “A succession certificate can be granted in favour of any person. It may be granted to an heir or a nominee. By reason of grant of such certificate, a person in whose favour succession certificate is granted becomes a trustee to distribute the amount payable by the deceased to his heirs and legal representatives. He does not derive any right thereunder. The succession certificate merely enabled him to collect the dues of the deceased. No status was conferred on him thereby. It did not prove any relationship between the deceased and the applicant.” 21. The learned Civil Judge, in trying the succession case, has no doubt examined evidence, where he opined that the first petitioner, by his documentary and oral evidence, has proved his marriage to Durgawati. It has further been held that respondent No. 5, Srivastava, whatever documentary evidence he has produced, are not documentary or oral testimony about the deceased's marriage to him. It has also been held by the learned Civil Judge that for a Government employee to marry a second time, without ending her marriage by divorce, is legally impermissible. She was never divorced and, therefore, Srivastava is not entitled to receive the post retiral benefits due on account of Smt. Durgawati's services. 22. It has also been observed by the learned Civil Judge that Srivastava's case about Durgawati divorcing her first husband, to wit, the first petitioner before a second marriage to him, is an issue to be proved by Srivastava. It is then observed by the learned Judge that no evidence to prove the factum of divorce has been adduced. The circumstance has also been taken into considered that in the service records, Srivastava's name was not entered as Durgawati's second husband. It has also been held that Srivastava has not been able to prove that he was the lawfully wedded husband of Durgawati. To the contrary, on an appreciation of evidence produced on behalf of the first petitioner, Mukti Nath Giri, it has been held that the deceased and the first petitioner were married and also that there was no divorce between them. To the contrary, on an appreciation of evidence produced on behalf of the first petitioner, Mukti Nath Giri, it has been held that the deceased and the first petitioner were married and also that there was no divorce between them. It has also been held that it is the first petitioner, who is entitled to all death-cum-retirement benefits due to Durgawati. 23. It must be observed by this Court that the learned Civil Judge, in rendering his findings, has very meticulously considered all evidence on record. In fact, analysis of evidence is so keen that if the learned Judge had before him a suit that he was trying on the same issues, he would have perhaps done no more than what he has done. It is quite another matter that the order that the learned Judge has passed in the succession application, may be beyond the scope of his jurisdiction, particularly with regard to the direction to consider the first petitioner, Mukti Nath Giri for compassionate appointment. He certainly would have no jurisdiction to issue that kind of a direction. There is another aspect of the matter, even if the part of the order that the learned Civil Judge made, regarding the direction to grant compassionate appointment etc., which is clearly ultra vires, is ignored. Would the other part, by which he has directed Srivastava and his children to pay the sum of Rs. 59,696/- and all other death-cum-retirement benefits, including provident fund, gratuity, group insurance etc. to the first petitioner, be valid? We do not think so. 24. An objection was raised before the learned Civil Judge hearing the succession case that the respondent Authorities, who held the death-cum-retirement benefits due to the late Durgawati, having already paid those dues to Srivastava and his children, respondent Nos. 5, 6, 7 and 8 in compliance with the order passed in the earlier succession case, no relief could be granted in the petition now brought before the Civil Judge by the petitioners. This objection was, we think, well founded and the Judge hearing the succession petition erred in not sustaining it. It must be remarked that the relief sought in the succession petition on behalf of the petitioners is indeed of a kind that is not at all permissible in a succession petition under Section 372 of the Succession Act. This objection was, we think, well founded and the Judge hearing the succession petition erred in not sustaining it. It must be remarked that the relief sought in the succession petition on behalf of the petitioners is indeed of a kind that is not at all permissible in a succession petition under Section 372 of the Succession Act. The relief clause in the succession petition that the petitioners moved read (translated into English from Hindi): “Relief: (I) By a decree of declaration in favour of the petitioner and the respondents, it be declared that the petitioner is a deceased woman constable Durgawati Devi's husband and that respondent Nos. 6 to 9 have no connection or relationship to the deceased Durgawati Dvi. (II) Consequentially, by a decree in the petitioner's favour and against the respondents, a mandatory injunction be granted directing respondent Nos. 6 to 9 (respondent Nos. 5 to 8 here), ordering them to pay the petitioner dues on account of Durgawati Devi's provident fund, gratuity and insurance, totaling a sum of Rs. 59,696/- within a period of time to be specified by the Court together with 18% annual interest. A further direction was sought that in the event respondent Nos. 6 to 9 to the succession petition, being in default, liberty be given to the petitioner to recover the said sum through execution. (III) By a decree permanent injunction, respondent Nos. 1 to 5 (to the succession petition) be perpetually restrained from not granting compassionate appointment to anyone except the first petitioner, nor threaten to appoint any such person on compassionate appointment?” 25. Neither such kind of reliefs could ever be sought in a petition for grant of a succession certificate under Section 372 of the Succession Act, nor could these be granted. As already observed, a succession certificate is limited in its office to grant a third party a valid discharge as against the various heirs of a deceased, on whose behalf, the third party holds movable property or money. Since a succession certificate does not, of itself, create any beneficial interest in the holder of the certificate, except the right to collect from a third party goods or money of the deceased, a fortiori the Court seized of a succession certificate, cannot decide a lis inter se the heirs about their beneficial interest in the goods, money or other valuables left behind by the deceased. The succession petition that the petitioners, therefore, filed was completely ill-advised. The reliefs claimed there were absolutely beyond the scope of a petition under Section 372 of the Succession Act and the order passed by the learned Civil Judge was also beyond his jurisdiction in the proceedings that he had before him. In whatever manner, the fifth respondent had managed to collect death-cum-retirement benefits and realized pension from the respondent Authorities on account of services rendered by the deceased, the only remedy the first petitioner would have, was a duly constituted suit for declaration, accounts or whatever was advised. It certainly could not be a petition for succession. 26. It is no doubt true that the first petitioner has some equities in his favour by virtue of being the deceased's nominee recorded in the service book, but on the foot of this, to whatever relief the first petitioner would be entitled, is now long lost. It could be granted promptly to him after the deceased passed away and before her funds were paid in compliance of the order made on the succession petition brought by the fifth respondent, Srivastava. Now, long after Srivastava has received the money under a succession certificate granted to him by the Civil Judge, the sole remedy that the petitioners would have is to establish their case before a Court of competent civil jurisdiction through a duly constituted suit for whatever relief advised. The issues that arise between parties, the stage of nomination in service records being acted upon being long over, would involve establishment of the parties' beneficial interest. It would have to be established by the first petitioner in a duly constituted suit that he was lawfully married to the deceased; that the two were never divorced; that respondent Nos. 6, 7 and 8, said to be the deceased's children begotten of Srivastava, were not children of the deceased, so as to disentitle them to any share whatsoever in the death-cum-retirement benefits due on account of the late Durgawati's services. 27. In the conspectus of these facts, it is not possible for this Court, within the limitations of our jurisdiction under Article 226 of the Constitution, to go into and determine these issues, much disputed on facts, so as to grant any relief to the petitioners. 27. In the conspectus of these facts, it is not possible for this Court, within the limitations of our jurisdiction under Article 226 of the Constitution, to go into and determine these issues, much disputed on facts, so as to grant any relief to the petitioners. It will nevertheless be open to the petitioners, subject to the law of limitation, which includes the law providing for excluding time spent in proceeding in Court bona fide without jurisdiction, to institute a suit for appropriate relief before a Court of competent civil jurisdiction against respondent Nos. 5, 6, 7 and 8 in order to establish their right and seek relief that they claim. 28. Subject to the above remarks, this Court does not find it to be a fit case, where any relief can be granted to the petitioners. 29. This petition fails and is, accordingly, dismissed. 30. There shall be no order as to costs.