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1991 Supreme(MP) 379
1992 JLJ 624
Dr. T.N. Singh, J.
Krishna Pyari Bai Dixit (Smt.) v. Gobind Mishra
M.A. No. 108 of 1991; against the order of Shri Vikas Jain, 5th Additional Judge to the Court of District Judge, Gwalior in Succession Case No.157-A of 1988; Decided on 26.8.1991.
N.K. Modi for appellant; None for respondent.
Headnote:(1) Hindu Succession Act, 1956 -- - Ss. 4 and 14 (Expl.) -overriding effect of the Act has been circumscribed by S. 4 - ‘stridhan‘ of female continues to be her absolute property according to explanation to S. 14 - Shastric law continues to be in force in respect of such property. [Para 3
(2) Hindu Law -female‘s property -- acquired by female from service which she joined during maidenhood -- it is her absolute property -succession to such property is governed by Shastric Law. Hindu law by Mulla 15th Edn. paras 135 and 145 relied on. [Para 4
(3) Succession Act, 1925 – S. 373 (3) - ‘stridhan‘ of a married Hindu female -husband neither claiming nor entitled to claim succession certificate - brother also not claiming the same -mother of the deceased is entitled to the certificate. [Para 7
(4) Hindu Marriage Act, 1955 –S. 27 -wife dying leaving ‘stridhan‘ husband cannot claim such property because that property is not joint property of the deceased wife and husband. [Para 5
(5) Succession Act, 1925 - S. 373 -succession Court finding it difficult to determine any question of law or fact -it is still required to grant certificate to the person "having prima facie the best title thereto‘ -- succession is the rule which is to be promoted, not defeated. [Para 6
¼1½ fganw mRrjkf/kdkj vf/kfu;e] 1956 && /kkjk 4 rFkk 14 ¼Li"Vhdj.k½ && vf/kfu;e dk v/;kjksgh izHkko /kkjk 4 }kjk lhekc) gS && /kkjk 4 ds Li"Vhdj.k ds vuqlkj efgyk dk *L=h/ku* mldh vkR;afrd laifÙk cuh jgrh gS && ,slh laifRr cuh jgrh gS && ,slh laifRr ds laca/k esa ‘kkfL=d fof/k fujarj izHkkoh gSA ¿ iSjk 3À
¼2½ fagnw fof/k && efgyk dh laifÙk && efgyk }kjk mlds dkSek;Z esa xzg.k dh xbZ lsok ls vftZr && og mldh vkR;afrd laifÙk gS && ,slh laifÙk dk mRrjkf/kdkj ‘kkfL=d fof/k }kjk fofu;fer gSA eqYyk —r *fganw yk* 15 oka laLjd.k] iSjk 135 rFkk 145 voyafcrA ¿ iSjk 4À
¼3½ mRrjkf/kdkj vf/kfu;e] 1925 && /kkjk 373 ¼3½ fookfgr fganw efgyk dk *L=h/ku* && ifr }kjk mRrjkf/kdkj izek.ki= ds fy, nkok ugha fd;k x;k rFkk og nkos dk gdnkj Hkh ugha && HkkbZ }kjk Hkh ml dk nkok ugha fd;k x;k && e`rd dh ekrk izek.ki= dh gdnkj gSA ¿ iSjk 7À
¼4½ fagnw fookg vf/kfu;e] 1925 && /kkjk 27 && **L=h/ku** ihNs NksM+rs gq, iRuh dh e`R;q && ifr ,slh laifÙk ds fy, nkok ugha dj ldrk D;ksafd og laifÙk e`rd iRuh rFkk ifr dh la;qDr laifÙk ugha gSA ¿ iSjk 5À
¼5½ mRrjkf/kdkj vf/kfu;e] 1925 && /kkjk 373 && fof/k vFkok rF; dk dksbZ iz‘u vo/kkfjr djus esa mRrjkf/kdkj U;k;ky; dk dfBukbZ && rc Hkh ;g visf{kr gS fd og *ml ij izFke –"V~;k loksZRre gd j[kus okys** O;fDr dks izek.ki= dks izek.ki= iznku djsa && mRrjkf/kdkj og fu;e gS tks fd laizofrZr fd;k tkuk pkfg,, foQyughaA ¿ iSjk 6À
Dr. T.N. Singh, J. -1. Respondent has been duly served. He is represented by Shri S.B. Agarwal, Advocate. However, neither on the last date nor today any steps are taken by the respondent or his counsel to defend the appeal. I have no doubt, therefore, that the respondent has lost all interest in the matter. Indeed, it is submitted that in the Court below also though the respondent filed objection, he did not enter the witness-box and indeed he did not take any other steps to pursue the objection.
2. The impugned order is dated 25.3.1991, passed in Succession Certificate Case No. 157 of 1988. The appellant as petitioner, filed an application under section 372 of the Indian Succession Act, 1925, for short 'the Act'. She claimed that she was mother of the deceased Neetabai, who, during her life time, was in the service of the State Government in the Education Department. Indeed, on record is a certificate dated 5.5.1989 of the Head Master of the school concerned, in Mungaoli, indicating that Ku. Neeta Dixit daughter of Shri Dayashankar Dixit had rendered service in the school as Upper Division Teacher between 1981 and 1985. He also certified that from her salary at the rate of Rs. 30/- per month deduction was made against Family Welfare Benefit Scheme. However, what is not disputed is that the said deceased continued in service till she died on 5.11.1988. As per para 12 of the application filed in the Court below she was serving in Government Girls Higher Secondary School at Dabra, when she died. Accordingly, prayer was made for grant of Succession Certificate to realise her dues from the State Government (Particulars of which are given in para 16 of the application as also in the prayer portion comprising of gratuity, G.P.F. and dues under the Family Welfare Benefit Scheme, etc.
3. The Court below has rejected the prayer and has dismissed the application up-holding the objection of respondent. In this connection it may be stated that the deceased, Neetabai, was married to the respondent on 25.2.1984. But, the admitted fact is that the couple lived together for only three days. It is also undisputed that respondent sued deceased Neetabai for a divorce but he could get decree for Judicial separation against her, which was passed on 8.4.1988. It is also not disputed by the respondent that he contracted a second marriage though he stated that marriage did not take place in May 1988, but some time after deceased Neetabai's death in November 1988. The court below has accordingly taken the view that under the Hindu Succession Act the mother could not claim to be prima facie best entitled to the certificate prayed because she could not claim to be deceased's legal heir. It is true, as per section 15 of the Hindu Succession Act, 1956, for short' 1956 Act', a Hindu female dying intestate leaves her property, in order of preference, "firstly" the sons, daughters and husband jointly and the mother's turn comes "thirdly". However, the trial Court failed to take notice of the legal position that over-riding effect of the' 1956 Act' was circumscribed by section 4 of the Act. Legislature has made it clear that only "with respect to any matter for which provision is made in this Act" the Shastric Law shall be deemed repealed and indeed that position is made clear by Explanation to section 14 of the 1956 Act. It is recognised that the stridhan of a Hindu female continues to be her absolute property to mean obviously that Shastric Law with respect thereto continued to be in force.
4. In the instant case the contention of Shri Modi is that the property in question would be deemed to be 'maiden's property' of deceased Neetabai under Shastric Law and in that connection he has placed reliance on para 135 of Mull a 's Hindu Law 15th Edition at page 198. Learned author has succinctly summed up the law sk1ting that the property of a maiden acquired by "mechanical arts or otherwise by her own exertions constitute her' stridhan'''. He has submitted rig
