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IN THE HIGH COURT OF GAUHATI
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
N. CHAUDHURY, J.
Zubeda Ahmed – Appellant
Versus
Fazlia Begum – Respondent
Intest Case No. 8 of 2006
Decided On : 7.5.2015
Assam Services (Pension) Rules, 1969 - Rule 137 and 141 - Section 370 - Indian Succession Act, 1925 - Sections 272 and 384 - Jurisdiction to grant certificate - Petitioner prayed that succession certificate be issued to her in respect of said property opposite party and others appeared and submitted a written objection contesting claim of petitioner - Even second marriage of Late with was also denied of said written objection - In written objection it was claimed that was the only legally married wife of late and that opposite parties are sons and daughters born out of said wedlock - Held, Court to a judgment rendered by this court in case of. State of Assam wherein this court had already held that second wife of a Muslim is not entitled to family pension because of provision of pension rules - Thus on consideration of totality of it emerges that benefit of family pension is neither a security within meaning of section 370 of Indian Succession Act nor is a second wife during subsistence of first marriage of government employee is entitled to benefit of family pension - These relevant aspects of matters were not considered by District Judge while granting succession certificate jointly judgment is apparently contrary to law holding the field and accordingly same deserves to be set aside - Appeal stands allowed.
1. This appeal under Section 384 of the Indian Succession Act, 1925 (hereinafter referred to as Act) is directed against the judgment and order dated 18.6.2005 passed by the learned District Judge, Nalbari in Title Suit No. 7 of 2005 granting succession certificate in favour of the petitioner and the respondent No. 1.
2. The second wife of late Abdul Kashem Ahmed filed application under Section 272 the Indian Succession Act, 1925 before the learned District Judge at Nalbari leading to registration of case being Misc. Succession Case No. 63 of 2003. In that application, applicant stated that her husband was a handloom officer in the Handloom & Textiles Department of Assam and retired from the same position on superannuation. He was earning Rs. 6500/- per month. After his retirement, he died on 2.2.2003 leaving behind the applicant and the respondent No. 1 Mustt. Jubeda Ahmed, two surviving wives and as many as ten sons and daughters. Names and address of all these legal heirs were mentioned at para-5 of the application and the same are quoted below:
“5. That, at the time of death the deceased left the following heirs including the petitioner.
1. Musstt. Jubeda Ahmed, wife (1st) W/O L.A.Q Ahmed, aged 65 yrs.
2. Mustt. Daiji Ahmed, D/O L.A.Q Ahmed, aged 45 yrs.
3. Mustt. Rezina Ahmed, D/O L.A.Q Ahmed, aged 40 yrs.
4. Md. Illias Ahmed, S/O L.A.Q Ahmed, aged 37 yrs.
5. Mustt. Razi Begum, D/O L.A.Q Ahmed, aged 34 yrs.
6. Md. Idrish Ali, S/O L.A.Q Ahmed, aged 32 yrs.
7. Mustt. Tanuza Begum, D/O L.A.Q Ahmed, aged 29 yrs (married).
All are residing at Japarigog (Krishnanagar) Guwahati, Kamrup (Assam)
8. Mustt. Fazila Begum, send W/O Late Abdul Kashem Ahmed, aged 55 years.
9. Mustt. Babita Begum, D/O Late Abdul Kashem Ahmed, aged 30 years.
10. Mustt. Zasmin Khatun, D/O Late Abdul Kashem Ahmed, aged 27 years
11. Mustt. Runa Lyla Khatun, D/O Late Abdul Kashem Ahmed, aged 24 years
12. Hanif Ahmed, S/O Late Abdul Kashem Ahmed, aged 20 years
13. Nihar Ahmed, S/O Late Abdul Kashem Ahmed, aged 17years
All are residing at Vill.Bonpura, P.S. Mukalmua, Dist. Nalbari (Assam).”
3. The properties left behind by the Late Abdul Kashem Ahmed was described in the Schedule to the application and it contains only monthly pension of Rs. 6500/- per month. The schedule is quoted below:
“Schedule : Monthly pension @ Rs. 6500/- per annum from T.O. Dispur vide PPO No. DIS/48602.”
4. The petitioner prayed that succession certificate be issued to her in respect of the said property. The opposite party Jubeda Ahmed and others appeared and submitted a written objection contesting the claim of the petitioner. Even the second marriage of Late Abdul Kashem Ahmed with Fazila Begum was also denied in para-5 of the said written objection. In para-7 of the written objection, it was claimed that Jubeda Ahmed was the only legally married wife of Late Abdul Kashem Ahmed and that opposite parties No. 3, 4, 5, 6 and 7 are the sons and daughters born out of the said wedlock. With these averments on facts the opposite parties prayed that the application be dismissed.
5. Upon perusal of the rival contention of the parties, the learned trial court framed as many as five issues:
(1) Whether the case is maintainable?
(2) Whether there is cause of action?
(3) Whether the petitioner is legally married wife of the deceased?
(4) Whether petitioner was the 2nd wife of late Abdul Kashem Ahmed?
(5) What other relief/reliefs the parties are entitled to ?
6. Petitioner examined herself as PW-1, one Noor Ahmed as PW-2 and one Sumartya Van as PW-3. Opposite party No. 1 on the other hand examined herself as DW-1 and one Ramjan Ali as DW-2. All these witnesses were duly cross- examined by the respective counterpart.
7. Upon consideration of the materials available on record, the learned trial court decided issues No. 1 and 2 in the affirmative holding that the application was maintainable and that there was cause of action for the same. Coming to issues No. 3 and 4, the finding of fact arri
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