1 SA365/09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

SECOND APPEAL NO. 365 OF 2009

Sardarbee w/o Abdul Razzak Shaikh, Aged 68 years, Occupation

Household, Resident of Datta Nagar, Nilanga, Taluka Nilanga,

District Latur

Appellant

V E R S U S

Najmunnisa w/o Abdul Razzak Shaikh, Aged 65 years, Occupation

Household, Resident of Osmanabad, At present CISF Quarters,

Vashi (New), Mumbai

Respondent

Smt. A.N. Ansari, Advocate for the appellant

Shri S.A.G. Qureshi, Advocate for the respondent

CORAM : A.V. NIRGUDE, J.

DATED : 22^nd August, 2011

ORAL JUDGMENT

1.

Heard.

2.

At the time of admission of this appeal, following substantial

questions of law was noticed :

i.

Whether the suit as filed is maintainable in law

when alternate efficacious remedy is provided for

revocation/cancellation of the Succession Certificate

under the Indian Succession Act ?

ii.

Whether the Civil Court has right to cancel

Succession Certificate partially as prayed ?

3.

The facts leading to this litigation, in short, can be stated as

under :

One Abdul Razzak was an employee of Panchayat Samiti,

Osmanabad. In due course, he attained the superannuation and was

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getting the pension. Before he retired, he had made a declaration that in

case of his death, respondent should get his family pension being his

wife. Abdul Razzak died in the year 2002, and soon thereafter, as per his

nomination, respondent started getting pension. It is also common

ground that way back in 1953, Abdul Razzak had married the appellant

Sardarbee, and this couple begot as many as three daughters. In 2006,

appellant Sardarbee moved an application under Section 372 of the

Indian Succession Act, 1925, before the learned Civil Judge, Junior

Division, Nilanga, District Latur. She even made the respondent party to

such litigation. She obtained succession certificate on 15^th April, 2006

showing that she, the respondent and others were the legal heirs of

Abdul Razzak. On the basis of this certificate, the appellant made her

claim of pension. However, she did not succeed in getting pension on

the basis of the succession certificate.

2.

On the other hand, the respondent filed the present suit on 4^th

August, 2006, for cancellation of succession certificate. Her case in the

plaint was as under :

Admitting that the appellant Sardarbee was Abdul Razzak’s wife,

she claimed that Abdul Razzak, in 1968, divorced Sardarbee, and

thereafter lawfully married her. She also stated that she too begot

children out of the wedlock. The appellant opposed the suit with a story

that there occurred no divorce in between herself and Abdul Razzak and

that the respondent never married lawfully with Abdul Razzak. There

were two questions of fact between the parties; viz, whether Abdul

Razzak lawfully divorced the appellant?, and secondly, whether Abdul

Razzak lawfully married the respondent? The Courts below held on facts

that Abdul Razzak had lawfully divorced the appellant and had lawfully

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married the respondent. When the appeal was admitted, as indicated

above, the questions of fact were kept outside the scope of this appeal

and the only question that is required to be decided is, whether the suit

was maintainable?

3.

I have narrated above the contents of the plaint and the main

prayer made in it is “the succession certificate dated 15^th April, 2006

issued in favour of the appellant be cancelled and be declared as null

and void”.

4.

In a suit of this nature, the respondent ought to have sough