Wednesday, 3 August 2016

When succession certificate will be granted to mother of wife in preference to her husband?

 In the instant case what is clear is that as a stranger the respondent came in deceased's life and stayed so; as a way-farer, he came to violate her maidenhood by a fleeting association of three days only and he asserted purportedly his husband's right by suing her for legal separation. He could not have, therefore, raised legimately any objection to grant of succession certificate to deceased's mother who, for all intent and purposes could be treated as having "prima facie best title" to her daughter's property sanctioned by Shastric Hindu Law, saved by Section 4 of the Hindu Succession Act. He had not discharged his immutable marital obligation of setting up a matrimonial home with the deceased and was not, therefore, entitled to exercise any right lawfully exercisable by "husband". By his own conduct by obtaining the decree of judicial separation he had surrendered his right to cohabit with deceased Neetabai and that resulted in his other concomitent rights being legally suspended. Having made his choice to separate from the deceased, he had also made the choice to give up the legal benefits accruing from the relationship which he had got suspended legally.For all the reasons aforesaid the impugned order is set aside. The Succession Certificate as prayed shall be granted to the appellant-petitioner. 
Madhya Pradesh High Court
Smt. Krishna Pyari Bai Dixit vs Gobind Mishra on 26 August, 1991
Equivalent citations: AIR 1992 MP 145

Bench: T Singh

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, therefor, 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 indeted he did not take any other steps to pursue the objection. -
2. The impugned order is dt. 25-3-1991 passed in Succession Certificate case No. 157 of 1988. The appellant as petitioner filed an application under Section 372 of the 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 dt. 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 upholding 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 that marriage did not take place in May 1988, but some time after deceased Neetabai's death in Nov. 1988. The Court below has accordingly taken the view that under the Hindu Succession Actthe mother could not claim to be prima facie best entitled to the certificate prayed because she could not claim to be deceased's 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" for 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 overriding 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 Mody 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 Mulla's Hindu Law 15th Edition at page 198. Learned author has succinctly summed up the law stating that the property of a maiden acquired by "mechanical arts or otherwise by her own exertions constitute her 'stridhan'". He has submitted rightly indeed that the character of the property did not change during coverture because deceased Neetabai's right to hold the post was created during her maidenhood and she continued to hold that post without that right being affected in any manner by her marriage. In other words, to that property the provisions of Section 15 of 1956 Act would not apply but succession to that property would be regu lated by Shastric Law. In that connection he placed reliance on para 145, ibid (Page 201) and to the statement of law of learned author, that a maiden's property according to all schools passes in order of preference first to uterine brother, then to her mother and thereafter to father and others. In the instant case, the brother having not preferred any claim the mother should have been, according to. me, granted' the succession-certificate under'Section 373(3) of the Act, for reasons to follow.
5. Having given my anxious consideration to the contentions pressed by Shri Modi I have found the same to be unanswerable. Indeed, the position on facts which is very clear is that the husband has not been granted succession-certificate and he has not prayed for the same. It is not necessary, therefore, to determine if the husband, even if he had prayed, could not have been granted the certificate because of his remarriage during the prohibited period, as contended. Already I have noted above the factual contention of appellant-applicant that the remarriage took pace in May 1988 when deceased Neetabai was alive and when there was a decree for judicial separtion and not of a divorce. In this context what is also necessary to be stated, is that even if a decree of divorce had been passed in terms of Section 27 of the Hindu Marriage Act, 1955, no order could have been passed by the Divorce-Court in regard to property in question because the said property could not be claimed as joint property of the husband and wife.
6. What also bears emphasis, in the facts and circumstances of the case, is abdication of jurisdiction of the Court below with respect to its power contemplated under the provisions ofSection 373 of the Act: even if the judge finds it difficult to determine any question of law or fact finding the same too intricate and difficult for determination, he is still required to grant a certificate to the applicant "if he appears to be a person having prima facie the best title thereto." I had, on many occasions, in a number of cases, pointed out to the subordinate courts their failure in regard to due and proper exercise of the jurisdiction contemplated under Section 373(3) of the Act. Law abhors escheat; it also abhors vacuum. Succession is the rule and that is to be promoted; not defeated. The provisions of Section 373(3) are to be read, construed and enforced in that light.
7. In the instant case what is clear is that as a stranger the respondent came in deceased's life and stayed so; as a way-farer, he came to violate her maidenhood by a fleeting association of three days only and he asserted purportedly his husband's right by suing her for legal separation. He could not have, therefore, raised legimately any objection to grant of succession certificate to deceased's mother who, for all intent and purposes could be treated as having "prima facie best title" to her daughter's property sanctioned by Shastric Hindu Law, saved by Section 4 of the Hindu Succession Act. He had not discharged his immutable marital obligation of setting up a matrimonial home with the deceased and was not, therefore, entitled to exercise any right lawfully exercisable by "husband". By his own conduct by obtaining the decree of judicial separation he had surrendered his right to cohabit with deceased Neetabai and that resulted in his other concomitent rights being legally suspended. Having made his choice to separate from the deceased, he had also made the choice to give up the legal benefits accruing from the relationship which he had got suspended legally.
8. For all the reasons aforesaid the impugned order is set aside. The Succession Certificate as prayed shall be granted to the appellant-petitioner. No costs.
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