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2008 Supreme(MP) 102
2008(3) JLJ 196
(SUPREME COURT)
S.B. Sinha and V.S. Sirpurkar, JJ.
Vidhyadhari and others v. Sukhrana Bai and others
Civil Appeal No.575 of 2008 : against the orders of High Court of M.P., Jabapur, passed in Miscellaneous Appeals No.33 and 43 of 1998;
Decided on 22.1.2008.
Sushri Anuradha Mutatkar and Prakash Shrivastava for appellants;
Sushri Sunita Sharma, Sushri Sudha Pal and Rameshwar Prasad Goyal
for respondents.
Headnote:(1) Succession Act, 1925 -- S.372 -- second wife applying for succession certificate as nominee -- name of her children also disclosed -- second wife will not be entitled to pension but children would be so entitled.
Held: Admittedly, Sukhrana Bai was the first wife of Sheetaldeen, while during the subsistence of this marriage, Sheetaldeen got married with Vidhyadhari, [Para 3
There can be no dispute that Vidhyadhari had never pleaded any divorce, much less customary divorce between Sukhrana Bai and Sheetaldeen. There were no pleadings and hence no issue arose on that count. [Para 11
That Vidhyadhari was a nominee is not disputed by anyone and is, therefore proved. Vidhyadhari had claimed the succession certificate mentioning therein the names of four children whose status as legitimate children of Sheetaldeen could not and cannot be disputed. [Para 12
Even if a Government servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. (2000)2 SCC 431 relied on. [Paras 13
(2) Succession Act, 1925 -- S.372 -- succession certificate -- second wife is entitled to claim pensionary benefits of her husband for her children on the basis of nomination -- legitimate wife is also entitled to her share to balance the equities. [Para 14
(3) Hindu Law -- customary divorce -- cannot be presumed without pleading and proof of custom. AIR 1998 M.P. 114 referred to. [Para 8
(4) Hindu Law -- divorce -- Shudra Community -- wife deserting her husband -- no effect made by husband to take her back as his wife -divorce is presumed under the law. AIR 1997 SC 10 relied on. [Para 7
(5) Hindu Law -- divorce -- prevailing custom of divorce by written deed -- deed written -- divorce completed. (2002)2 SCC 637 relied on. [Para 11
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 372 && f}rh; iRuh }kjk ukefunsZf‘krh ds :i esa mÙkjkf/kdkj izek.ki= ds fy, vkosnu && mldh larkuksa ds uke Hkh izdV fd, x, && f}rh; iRuh isU‘ku dh gdnkj ugha gksxh ijarq larkusa gdnkj gksaxhA
vfHkfu/kkZfjr % Lohd`rr%] lq[kjkuk ckbZ ‘khrynhu dh izFke iRuh Fkh tcfd bl fookg ds vfLrRo ds nkSjku ‘khrynhu dk fookg fo|k/kjh ls gks x;kA ¿ iSjk 3
blesa fookn ugha gks ldrk fd :f<+d fookg&foPNsn rks nwj dh ckr gS] fo|k/kjh us lq[kjkuk ckbZ vkSj ‘khrynhu ds e/; dHkh fdlh fookg&foPNsn dk vfHkokd~ ugha fd;k] dksbZ vfHkokd~ ugha Fkk blfy, bl fcanq ij dksbZ fook|d mn~Hkwr ugha gqvkA ¿ iSjk 11
fo|k/kjh ukefunsZf‘krh Fkh] bl ij fdlh us dksbZ fookn ugha fd;k gS blfy, ;g lkfcr gks x;k gSA fo|k/kjh us mÙkjkf/kdkj izek.ki= dk nkok mlesa pkj larkuksa ds ukeksa dk mYys[k djrs gq, fd;k Fkk ftudh ‘khrynhu dh /keZt larkuksa ds :i esa izkfLFkfr ij fookn u fd;k tk ldrk Fkk] u fd;k x;k gSA ¿ iSjk 12
fdlh ljdkjh lsod us vius izFke fookg ds vfLrRo ds nkSjku f}rh; fookg dj fy;k gks rc Hkh ,sls f}rh; fookg ls tUeh larkusa /keZt gksaxh Hkys&gh og f}rh; fookg Lo;a ‘kwU; gksxkA vr% U;k;ky; }kjk vfHkfu/kkZfjr fd;k x;k fd ,slh larku isU‘ku dh gdnkj gksxh ijarq f}rh; iRuh ughaA ¼2002½2 ,l lh lh 431 voyafcrA ¿ iSjk 13
¼2½ mÙkjkf/kdkj vf/kfu;e] 1925 && /kkjk 372 && mÙkjkf/kdkj izek.ki= && f}rh; iRuh ukefunsZ‘ku ds vk/kkj ij viuh larkuksa ds fy, vius ifr ds isU‘ku Qk;nksa dk nkok djus dh gdnkj gS && oS/k iRuh Hkh] lkE;k larqfyr djus ds fy,] va‘k dh gdnkj gSA ¿ iSjk 4
¼3½ fganw fof/k && :f<+d fookg&foPNsn && :f<+ ds vfHkopu vkSj lcwr ds fcuk mi/kkj.kk ugha dh tk ldrhA , vkb vkj 1998 e-iz- 114 fufnZ"VA ¿ iSjk 8
¼4½ fganw fof/k && fookg&foPNsn && ‘kwnz leqnk; && iRuh }kjk ifr dk vfHkR;kx && ifr }kjk mls viuh iRuh ds :i esa okil ys tkus dk dksbZ iz;Ru ugha && fof/k ds v/khu fookg&foPNsn dh mi/kkj.kk dh tk,xhA , vkb vkj 1997 ,l lh 10 voyafcrA ¿ iSjk 7
¼5½ fganw fof/k && fookg&foPNsn && fyf[kr foys[k }kjk fookg&foPNsn dh :f<+ vfHkHkkoh && foys[k fy[kk x;k && fookg&foPNsn gks x;kA ¼2002½2 ,l lh lh 637 voyafcrA ¿ iSjk 11
Sirpurkar, J. -- 1. Leave granted.
2. A common judgment of the High Court of Madhya Pradesh at Jabalpur, disposing of two miscellaneous appeals is in challenge before us. The appeals were filed by one Smt. Sukhrana Bai claiming herself to be the widow of one Sheetaldeen. Sheetaldeen was working as a CCM Helper in Mines P.K.1 of the Western Coalfields at Pathakheda and died on 9.5.1993 while in service. Two separate applications came to be filed under section 372 of the Succession Act for obtaining succession certificate with respect to the movable properties of deceased Sheetaldeen, one of them was filed by Vidhyadhari registered as Succession Case No.3 of 1996 while the other came to be filed by Sukhrana Bai which was registered as Succession Case No. 10 of 1995. Both the cases were joined and tried together by the trial Court which allowed the application filed by Vidhyadhari (SC No.3 of 1996) and dismissed the one filed by Sukhrana Bai (SC No.10 of 1995). Sukhrana Bai, therefore, filed two miscellaneous appeals being MA No.33 of 1998 and MA No.43 of i 998 which came to be allowed by the High Court in favour of Sukhrana Bai. Vidhyadhari, therefore, is before us in this appeal. Before we proceed with the matter, a factual background would be necessary.
3. Admittedly, Sukhrana Bai was the first wife of Sheetaldeen, while during the subsistence of this marriage, Sheetaldeen got married with Vidhyadhari. Two sons and two daughters were born to Vidhyadhari, they being Smt. Savitri, Naresh @ Ramesh, Ms. Chanda @ Durga and Baliram, while Sukhrana Bai does not have any children.
4. Vidhyadhari in her application before the trial Court (SC No.3 of 1996), besides herself, disclosed the names of her children as the legal heirs of Sheetaldeen. It was also revealed that deceased Sheetaldeen had nominated her for receiving amounts under the provident fund, family pension scheme and coal mines deposits life scheme. She also disclosed that she has received a sum of Rs.45,036/- towards gratuity amount of the deceased from the employer of Sheetaldeen i.e. Western Coalfields Ltd. She, therefore, claimed the succession certificate on the basis of her nominations besides her marriage with Sheetaldeen.
5. As stated above, both the succession cases came to be consolidated and tried together. In SC No. 10 of 1995, filed by Sukhrana Bai, Vidhyadhari raised an objection that Sukhrana Bai was not the heir of deceased Sheetaldeen and though Sheetaldeen initially nominated Sukhrana Bai to receive the dues after his death as per Form A, subsequently he cancelled that nomination and filed in a second Form A in which he had nominated Smt. Vidhyadhari and in description of his family members he had indicated her to be the wife, one Naresh as his son and Ms. Chanda @ Durga as his daughter. It was also pointed out that Sukhrana Bai had not claimed any dues from the office of Sheetaldeen. WCL, which is a party, contended that the non-applicant had no knowledge about the valid marriage between the deceased and Sukhrana Bai and it was also admitted that Sheetaldeen had nominated Vidhyadhari to receive the total amount and had registered her as his nominee. Following issues came to be framed by the trial Court:
(1) Whether the legal widow of the deceased Sheetaldeen is the applicant Smt. Sukhrana of Case No. 10 of 1995 or Vidhyadhari of Case No.3 of 1996?
(2) Whether Smt. Savitri, Naresh alias Ramesh, Ms. Chanda alias Durga and Baliram, as mentioned in the application of Case No.3 of 1996 are the children of applicant Vidhyadhari, sired by deceased Sheetaldeen?
(3) If yes, whether they are the heirs of deceased Sheetaldeen?
(4) For receiving the amount due to deceased Sheetaldeen, issuance of succession certificate in whose favour would be just and proper?
(5) Relief and expenses?
6. Both oral and documentary evidence was led by both the parties. Sukhrana Bai examined herself as AW1 along with three other witnesses, namely, Kanhaiyalal (AW2), Ram Prasad (AW3) and Shi
