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1998 Supreme(MP) 426
High Court Of Madhya Pradesh
S. P. SRIVASTAVA, A. S. TRIPATHI
VIRENDRA SINGH PAL - Appellant
Versus
KASHIBAI - Respondents
L. P. A. 180 Of 1997
Decided On : 05/12/1998
Important Points
Subject
Succession law - Succession Certificate
Act Referred
HINDU MARRIAGE ACT : S.5(2)
SUCCESSION ACT : S.63
TRANSFER OF PROPERTY ACT : S.5
Headnote
SUCCESSION CERTIFICATE - INDIAN SUCCESSION ACT, 1925 - SECTIONS 372, 63, 8 - SCHEDULE I, CLASS I - MARRIAGE - PRESUMPTION - LEGITIMACY - WILL - ATTESTATION - INTERPRETATION - COURT ANALYSIS AND CONCLUSION - The court held that the presumption of marriage from cohabitation for a long period is not available where it is not possible to have a legal marriage. The court also held that the attestation of a will must be done after the execution of the will and that the signature of the testator must be on the will before it can be attested.
Fact of the Case:
The appellant, Virendra Singh Pal, filed an application under Section 372 of the Indian Succession Act for a succession certificate in respect of the provident fund, gratuity, and insurance amount to which his deceased father, Narain Singh Pal, was entitled. The application was contested by Smt. Kashibai, who claimed to be the wife of Narain Singh Pal and the mother of his three children, Ku. Meena, Ganesh, and Ku. Uma. Kashibai also claimed that Narain Singh Pal had executed a will in her favor and in favor of his son, Ganesh.
Finding of the Court:
The trial court found that Kashibai was the wife of Narain Singh Pal and that Ku. Meena, Ganesh, and Ku. Uma were his children. The trial court also found that the will in question had been duly executed. The single judge of the High Court upheld the findings of the trial court.
Issues: 1. Whether Kashibai was the wife of Narain Singh Pal. 2. Whether the will in question had been duly executed. 3. Who were the heirs of Narain Singh Pal.
Ratio Decidendi: 1. The court held that the evidence on record established that Kashibai was the wife of Narain Singh Pal. The court found that Kashibai and Narain Singh Pal had lived together as husband and wife for a long period of time and had three children together. The court also found that Kashibai was regarded and recognized by friends and relatives as the wife of Narain Singh Pal. 2. The court held that the will in question had not been duly executed. The court found that the attesting witnesses had signed the will before Narain Singh Pal had affixed his thumb mark thereon. The court held that this was not an attestation in the eye of the law. 3. The court held that Virendra Singh Pal, Kashibai, Ku. Meena, Ganesh, and Ku. Uma were all heirs of Narain Singh Pal. The court found that they all fell within the category of heirs of Class I of Schedule I to the Hindu Succession Act and were entitled to succeed the interest of Narain Singh Pal, the deceased, simultaneously with equal shares.
Final Decision: The court allowed the appeal in part. The court directed the trial court to issue a succession certificate clearly indicating Kashibai, Virendrasingh Pal, Ku. Meena, Ganesh, and Ku. Uma, as succession in interest of deceased Narainsingh Pal with equal shares entitled to the amount in dispute accordingly.
A.M.Naik, P.N.GUPTA
( 1 ) FEELING aggrieved by the order dismissing his appeal directed against the rejection of the application filed by the appellant under Section 372 of the Indian Succession Act for obtaining a Succession Certificate, he has now come up in this Letters Patent Appeal seeking redress praying for the reversal of the impugned order.
( 2 ) WE have heard the learned counsel for the appellant as well as the learned counsel repre-senting the contesting respondents and have also carefully perused the record.
( 3 ) THE facts in brief, shorn of details and necessary for disposal of this appeal lie in narrow compass. Narain Singh Pal, who was employed as a Chowkidar in a Government Office, died in harness on 13-6-1995. He had married Smt. Hirobai and had a son Virendra Singh Pal, Smt. Hirobai, however, died long back. On the death of Narain Singh Pal, Virendra Singh moved an application dated 1-7-1995 under Section 372 of the Indian Succession Act praying that a Succession Certificate be issued in his favour in respect of the Provident fund, gratuity and insurance amount to which Narainsingh Pal was entitled. In the aforesaid application it was alleged that apart from Virendra Singh there was no other heir or legal representative of deceased Narainsingh Pal, as his mother expired long ago and out of the legtimate issues of Narainsingh Pal, the applicant Virendrasingh Pal was the only person entitled to succeed him as there was no prefessential heir.
( 4 ) THE aforesaid application was contested by Smt. Kashibai and her two minor daughters and a minor son. She alleged that it was true that Narainsingh Pal, the deceased, had initially married Smt. Hirobai and out of this wedlock a son, Virendra Singh Pal, had been born, but after the death of Smt. Hirobai, Narainsingh Pal had married the objector, Kashibai, and out of the second marriage Ku. Meena, daughter age 14 years, Ganesh Pal, son aged 10 years and Ku. Uma, daughter aged 4 years, had been born. Kashibai also claimed that she had been nominated by deceased, Narainsingh Pal, to receive the monetary benefits relating to the Provident fund, gratuity and insurance in respect of which a succession certificate was being claimed by Virendrasingh Pal. Kashibai also asserted that deceased Narainsingh Pal had executed a will in her favour as well as in favour of his son, Ganesh Pal, on 9th Feb. 1995 and in view of the stipulations contained in the aforesaid Will Virendrasingh Pal stood clearly disherited and had no right, title and interest in the amounts in dispute.
( 5 ) IN support of his case Virendrasingh Pal examined besides himself Rambharose Pal as a witness. Kashibai, the objector, in support of her case examined besides herself Satya Narain Sharma as a witness. She also produced the original Will, claimed to have been executed by deceased Narainsingh.
( 6 ) IN his deposition Virendrasingh Pal asserted that his father Narainsingh Pal had never married Kashibai. He, however, admitted that the deceased had nominated her to receive the amount in dispute. He further asserted that Narainsingh Pal had not executed any will as claimed. However, the fact that Narainsingh Pal was living with Kashibai was not disputed. He expressed his total ignorance as to whether Ku. Munni, Ganesh and Uma were born in the house in which Narainsingh Pal resided along with Kashibai.
( 7 ) THE trial Court found that the evidence led by Kashibai in support of her case about her having been married with Narainsingh Pal and that Ku. Munni, Ganesh and Ku. Uma had been born out of that wedlock was worthy of credit and reliable. The trial Court, therefore, found it to have been established that Kashibai was the wife of the deceased Narainsingh Pal and Ku. Munni, Ganesh and Ku. Uma were his daughters and son. The trial Court also found the will in question to have been duly executed.
( 8 ) ON the aforesaid findings disbelieving the case set up by Virendrasingh Pal about his being the only successor i
