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1997 Supreme(MP) 489
1998 (1) JLJ 345
S.K. Dubey and Rajeev Gupta, JJ.
K. Shyamlal v. K.Sugna Devi and others
M.A. No. 1573 of 1996; against the order of Shri T.K. Jha, 2nd Additional
Judge to the Court of District Judge, Durg passed in Succession Case No. 53 of 1994; Decided on 8.8.1997.
H.B. Agrawal for appellant; C.L. Kotecha for respnodent No.1.
Headnote:(1) Succession Act, 1925 -- S. 373(3) -- grant of Succession certificate -- is a rule which is to be promoted and not to be defeated -- intricate question if involved -- need not be decided -- certificate to be granted to party having prima facie title for the same. 1992 JLJ 624, AIR 1957 Kerala 90, AIR 1942 Mad. 709 and AIR 1941 Cat. 663 relied on. (1991) I SCC 582, (1993) 4 SCC 392 and 1993(1) Vidhi Bhasvar 37 distinguished. [Para 9
(2) Hindu Marriage Act, 1955 -- Ss. 5(i) and 11 -- marriage in contravention of S. 5(i) -- is void from very inception -- no declaration to that effect is necessary -- widow of such marriage -- cannot claim succession certificate. AIR 1964 SC 1625 and AIR 1988 SC 644 followed. M.A. No. 685/96 relied on. . [Paras 10 & 11
(3) Succession Act, 1925 -- S. 372 -- widow of void marriage -- cannot claim succession certificate for estate of her deceased husband. AIR 1964 SC 1625 and AIR 1998 SC 644 followed. M.A. No. 685/96 relied on. [Paras 10 & 11
¼1½ mÙkjkf/kdkj vf/kfu;e] 1925 & /kkjk 373 ¼3½ &mÙkjkf/kdkj çek.ki= dk vuqnku & leFkZu fd, tkus ;ksX; fu;e gS] foQy fd, tkus ;ksX; ugha & isphnk ç‘u ;fn varxzZLr gks & fofuf‘pr fd;k tkuk vko‘;d ugha & çFken`"V;k mlds fy, gd j[kus okys i{kdkj dks vuqnr fd;k tkuk pkfg,A 1992 ts ,y ts 624] , vkb vkj 1957 dsjy 90] , vkb vkj 1942 enzkl 709 rFkk , vkb vkj 1941 dydÙkk 663 voyafcrA ¼1991½ 1 ,l lh lh 582] ¼1993½ 4 ,l lh lh 392 rFkk 1993 ¼1½ fof/k HkkLoj 37 çHksfnrA ¿iSjk 9
¼2½ fganw fookg vf/kfu;e] 1955 & /kkjk 5(i) rFkk 11&/kkjk 5(i) dk mYya?ku djrs gq, fookg & çkjaHk ls gh ‘kwU; gS & ml vk‘k; dh ?kks"k.kk vko‘;d ugha & ,sls fookg dh fo/kok & mÙkjkf/kdkj dk nkok ugha dj ldrhA , vkb vkj 1964 ,l lh 1625 rFkk , vkb vkj 1988 ,l lh 644 vuqlfjrA çdh.kZ vihy Ø-685@96 voyafcrA ¿iSjk 10 rFkk 11
¼3½ mÙkjkf/kdkj vf/kfu;e] 1925 & /kkjk 372 & ‘kwU; fookg dh fo/kok & vius e`r ifr dh laink ds fy, mÙkjkf/kdkj çek.ki= dk nkok ugha dj ldrhA , vkb vkj 1964 ,l lh 1625 rFkk , vkb vkj 1988 ,l lh 644 vuqlfjrA çdh.kZ vihy Ø-685@96 voyafcrA ¿iSjk 10
Dubey, J. -- 1. This is an appeal under section 384 of the Indian Succession Act, 1925 (for short the ‘Act') against the order dated 18.12.96, passed in Succession Case No.. 53/94 by the Second Additional District Judge, Durg.
2. The facts which are not disputed in this appeal are thus : One K. Satyanarayan was working as technician in the Bhitai Steel Plant with Personal Number 12387 and Token No. 17084. He died intestate on 22.2.92 at Bhilai. Therefore, wife of the deceased i.e. the respondent No.1 made an application under section 372 of the Act, for grant of succession certificate in respect of the debts and securities due to the deceased as detailed below :-
(i) Contributory Provident Fund Amount Rs. 1,24,230-00
(ii) Service amount Rs. 10,000-00
(iii) Gratuity Rs. 55,932-00
(iv) Fixed Deposit A/c No 208330,
Sub-Post Office, H.S.G. IIIrd Rs. 10,000-00
(v) Post Office, MPM (CTD) Espath Bhawan
SBM: CTD A/c No. 257568 Rs. 2,160-00
CTD A/c No. 250478 Rs. 2,160-00
(vi) Life cover amount Rs. 26,000-00
(vii) Share capital B.B.M. Cooperative Canteen
Account No. 197 Rs. 1,000-00
Rs. 2,31,482-00
3. The appellant objected to the grant of certificate and contended that she was married to the deceased according to the Hindu rites, on 18.2.91, at Raipur and was living with him as his legally wedded wife till his death, therefore, she is entitled to grant of certificate and not the respondent No.1, who was living separately in Andhra Pradesh since 1975.
4. Undisputably the respondent No.1 was married to the deceased in the year 1968 in Karim Nagar, Andhra Pradesh. Thereafter she stayed with her husband at Bhilai till 1975. Because of the differences between the husband and wife, the deceased started behaving cruelly with the respondent No.1. Hence, she came to her matrimonial home in the year 1975, where she instituted the proceedings under section 125, of the Code of Criminal Procedure. Judicial Magistrate First Class, Karim Nagar, vide order dated 5.2.74, ordered the deceased to pay Rs. 100/- per month as maintenance. Certified copy of the order is EX.P/1A. The deceased filed Civil Suit No. 30-A/78, for decree of divorce, in the Court of First Additional District Judge, Durg, but the same was dismissed for non-appearance on 20.6.79. Photostate copy of the order is Ex.P/2A. Thereafter, without taking divorce from the respondent No.1, the deceased married to the appellant in the year 1991.
5. The appellant also applied for grant of succession certificate in Succession Case No. 15/93 in the Court of Civil Judge, Class-I, Durg which was dismissed because of her non-appearance on 6.9.94.
6. The Succession Court after appreciating the evidence on the rival claims of the appellant and the respondent No. 1 granted the succession certificate to respondent No. 1 for the securities left by the deceased holding• that the appellant's marriage with the deceased was void under section 11 of the Hindu Marriage Act, 1955, as the second marriage was solemnized in contravention of clause (I) of section 5, of the Hindu Marriage Act. .
7. Shri H.B. Agrawal, the learned counsel for the appellant, contended that unless there is a declaration u/s 11 of the Hindu Marriage Act, the marriage solemnized cannot be considered as void, therefore, the appellant was entitled to gran of succession certificate, if not full for half of the amount as she being the widow, was the class1 heir as classified in Schedule of section 8 of the Hindu Succession Act, 1956, and as such was entitled to succeed according to provisions of the said Act. It was also submitted that the Succession Court committed an error in granting the succession certificate, when too intricate questions of law and fact were involved in the case, therefore, under sub-section (3) of section 373 of the Act, the Court ought to have left the parties to seek a declaration of their right from a competent Court. Counsel cited Maharani Kusum Kumari and anr. v
