A Hindu male's second wife is not entitled to a share in his family pension or death-cum-retirement gratuity if he dies intestate.

Nishita Mhatre, J. :

1. The appellants are aggrieved by the decision of the District Delegate, 3rd Court, Paschim Medinipur denying the appellant no.1, Smt. Shefali Maity the succession certificate in respect of the estate of Uttam Kumar Maity.

2. The brief facts in this case are as follows:

Uttam Kumar Maity who was employed with the B.L & L.R.O and subsequently with the S.D.L & L.R.O was married to Shefali Maity in February, 1972. They have a daughter, the appellant no.2, Manasi. According to the appellants, they were driven out of the matrimonial home in 1977 and, therefore, were required to stay with the parents of appellant no.1, Shefali. It appears that Uttam Kumar Maity later lived with Minati as husband and wife. They had a son, respondent no.2, Kallol.

3. After the death of Uttam Kumar Maity on 24th November, 2009 the appellants applied for a Succession Certificate under Section 372 of the Indian Succession Act.

4. The District Delegate has refused the Succession Certificate to Shefali, the appellant no.1, on the ground that she had no moral right to be the heir of Uttam Kumar Maity as she had not lived with him since 1977. The Succession Certificate was granted in favour of appellant no.2, Manasi to the extent of 1/4th share and 3/4th share jointly to Minati, Kallol and Gita Bali, the mother of Uttam Kumar Maity.

5. The learned Counsel appearing for the appellants submits that when there was subsisting marriage between Shefali and Uttam, there could not have been a second marriage between Uttam and Minati; at best they could have lived together as husband and wife but there could not have been any legal recognition to their relationship. The learned Counsel submits that Shefali being the wife of Uttam was entitled to a Succession Certificate whereas Minati who had been granted the Succession Certificate had no legal right to the same. He further submits that the appellant no.1, Shefali could not have been denied her right to the Succession Certificate on the specious ground that she had no moral right to be the heir of Uttam. The learned Counsel has relied on the judgment in the case of Rameshwari Devi vs. State of Bihar & Ors., AIR 2000 SC 735.

6. The learned Counsel for the respondent nos.1 to 3 submits that the District Delegate has found that the documents submitted by the appellants show that there was a marriage between Shefali and Uttam but they were of recent origin and, therefore, could not be relied upon. He submits that when Minati and Uttam had lived together as husband and wife for all practical purposes and Uttam’s mother Gita Bala had deposed that Minati is her only daughter-in-law, the question of granting a Succession Certificate in the name of Shefali does not arise. He, therefore, submitted that the decision of the District Delegate was correct. In order to fortify his submission that the impugned judgment need not be disturbed in the appeal, the learned Counsel has relied on the judgment of the Supreme Court in the case of Vidyadhari & Ors. vs. Sukhrana Bai & Ors., AIR 2008 SC 1420.

7. The District Delegate has accepted the fact that Shefali and Uttam were married. In fact, the District Delegate has observed that there was no evidence on record which could deprive Manasi, a fatherless girl, of her rights as all the certificates and documents showed that she was born to Shefali and Uttam after their marriage. Therefore, it is obvious that the District Delegate has accepted the marriage between Shefali and Uttam. That being the case, the so-called marriage between Minati and Uttam is not valid. Minati cannot be considered as an heir of Uttam. However, her son Kallol would certainly be entitled to a share in the estate of Uttam in accordance with the Hindu Succession Act.

8. In the case of Rameshwari Devi, the Supreme Court observed that when a Hindu male dies intestate, the children of the deceased employee born from the second wedlock would be entitled to share in the family pension and death-cum-