Thursday, 15 September 2016

When children from second wife should not be granted succession certificate?

Mr. Mishra, learned counsel for the appellants, forcefully submitted that both the appellants being the sons of late Kumar Sahu through his second wife, are entitled to be declared as legal heirs and successors of deceased Kumar Sahu. In alternative it was submitted that even if the second marriage is declared void, their status is that of illegitimate sons and they are entitled to share in the property left behind by the deceased Kumar Sahu. The learned counsel for the appellants to substantiate his arguments relied on Ext. A, the legal heir certificate, issued by the Tahasildar and Ext. B, Admit Card, issued by Bihar Vidyalaya Parikshya Samiti. The learned counsel for the appellants also relied upon the statements made by P.W. 1.
6. On perusal of the deposition of P.W. 1 I find that she has categorically stated in her examination-in-chief that she was the only legally married wife of Kumar Sahu. In view of the aforesaid statement, her statements in cross-examination that "I do not know the second wife of late Kumar Sahu. The Opp. parties are born through Kumar Sahu from the side of his second wife. I cannot say if Binod Sahu and Jitendra Sahu are his sons." Cannot be accepted to be an admission and rightly the trial Court did not accept the said statement. Ext. A is the legal heir certificate granted by the Tahasildar which was issued after issuance of the certificate in favour of the petitioners vide Ext. 2. By way of clarification, the Tahasildar by his letter No. 1702 dated 16.4.1999 informed that the legal heir certificate issued in Misc. Case No. 3947/98 was correct. Admittedly, in the said Misc. case Ext. 2 was issued.
It appears, the Opp. parties have not come up with clean hands in as much as they have not filed any objection or written statement. They have neither disclosed the name of their mother nor disclosed her whereabouts, which throws a cloud of suspicion. The evidence adduced by them is also very shaky.
Orissa High Court
Binod Sahu And Anr. vs Smt. Chandrama Sahu And Ors. on 3 May, 2002
Equivalent citations: AIR 2003 Ori 11, 2002 II OLR 62

Bench: A Naidu
1. This is an appeal filed under Section 384 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'), inter alia, challenging the order passed by the Civil Judge, Senior Division, Angul under Section 372 of the Act in Succession Misc. Case No. 14 of 1998.
2. Bereft of all unnecessary details, the short facts which are necessary for effectual adjudication of the inter se disputes are as follows :
The widow and two daughters of late Kumar Sahu filed a petition under Section 372 of the Act praying for issuance of the Succession Certificate. It was specifically averred in the petition that after death of Kumar Sahu, they were the only persons who were entitle to succeed to the properties left behind as well as the money left by late Kumar Sahu in the State Bank of India.
In response to the public notice, the two appellants, filed a petition under Order 1, Rule 10 C.P.C. praying to implead them as parties. It was asserted that they were the sons of late Kumar Sahu through his second wife. The said petition was allowed and they were impleaded as Opp. parties.
The claim of the appellants was strongly repudiated by the widow and two daughters on the ground that under the provisions Df the Hindu Law, second marriage during the life time of the first wife was void. It was emphatically submitted that neither the name of the second wife nor her whereabouts were disclosed by the appellants. According to them both the appellants were imposters and not the sons of late Kumar Sahu.
To substantiate their case, Chandrama Sahu, widow, examined herself as P.W. 1 and exhibited four documents. At the other hand, the present appellant No. 1 examined himself as O.P.W. 1 and exhibited two documents. It is apt to mention here that after being impleaded as Opp. parties, the appellants chose not to file any objection or written statement.
3. The trial Court after vivid discussion of the evidence both, oral and documentary, came to a categorical finding that the legal heir certificate Ext. 2 granted by the Tahasildar in favour of the petitioners-respondents, was correct and genuine. The trial court rejected the certificate Ext. A issued in favour of the appellants on the ground that the same was issued later and also contradicted Ext. 2 which was issued earlier. The submissions advanced on behalf of the Opp. parties that P.W. 1 in her cross-examination admitted that the Opp. parties were born through the second wife of Kumar Sahu, was disbelieved in view of the statement made by her in her deposition i.e. "I cannot say if Binod Sahu and Jitendra Sahu are his sons."
Be that as it may, on a cumulative assessment of the documents and the oral evidence, the learned Civil Judge, Sr. Division, Angul declared the petitioners (respondents) as the legal heirs and successors of late Kumar Sahu and held that they were entitled to the property left by deceased Kumar Sahu. The trial court further directed for issuance of succession certificate jointly in the names of all the respondents to collect deposits and the interest accrued thereon from the State Bank of India. Said order, as stated above, is impugned in this appeal.
4. In course of hearing, it is submitted that during the pendency of the Appeal, Chandrama Sahu, respondent No. 1 expired. However, in view of the fact that the only two other legal heirs (2 daughters) are already record, there is no need for substitution and the Appeal is heard on the consent of the parties.
5. Mr. Mishra, learned counsel for the appellants, forcefully submitted that both the appellants being the sons of late Kumar Sahu through his second wife, are entitled to be declared as legal heirs and successors of deceased Kumar Sahu. In alternative it was submitted that even if the second marriage is declared void, their status is that of illegitimate sons and they are entitled to share in the property left behind by the deceased Kumar Sahu. The learned counsel for the appellants to substantiate his arguments relied on Ext. A, the legal heir certificate, issued by the Tahasildar and Ext. B, Admit Card, issued by Bihar Vidyalaya Parikshya Samiti. The learned counsel for the appellants also relied upon the statements made by P.W. 1.
6. On perusal of the deposition of P.W. 1 I find that she has categorically stated in her examination-in-chief that she was the only legally married wife of Kumar Sahu. In view of the aforesaid statement, her statements in cross-examination that "I do not know the second wife of late Kumar Sahu. The Opp. parties are born through Kumar Sahu from the side of his second wife. I cannot say if Binod Sahu and Jitendra Sahu are his sons." Cannot be accepted to be an admission and rightly the trial Court did not accept the said statement. Ext. A is the legal heir certificate granted by the Tahasildar which was issued after issuance of the certificate in favour of the petitioners vide Ext. 2. By way of clarification, the Tahasildar by his letter No. 1702 dated 16.4.1999 informed that the legal heir certificate issued in Misc. Case No. 3947/98 was correct. Admittedly, in the said Misc. case Ext. 2 was issued.
It appears, the Opp. parties have not come up with clean hands in as much as they have not filed any objection or written statement. They have neither disclosed the name of their mother nor disclosed her whereabouts, which throws a cloud of suspicion. The evidence adduced by them is also very shaky.
The inquiry in a proceeding initiated under the Indian Succession Act, 1925 is summary in nature and the court can dispose of the petition without determining the law or facts which seem to it to be too intricate and difficult for determination. The Court can grant succession certificate to the person who appears to have prima facie the best title thereto. While investigating into an application under the Indian Succession Act, the Court need not determine definitely and finally as to who has the best right to the estate of the deceased. All that is required to be done is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent the same being time-barred and on the other hand, to afford protection to the properties from being misused. The grant of a succession certificate, to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se. The Succession Certificate is not a final adjudication of the question as to who is the next heir and as such entitled to the estate of the deceased. The succession certificate is an authority to realise the amount payable to the deceased. The certificate holder, however, has to dispose of the amount so realised in accordance with the rights of the persons who are entitled to it.
Part-X of the Indian Succession Act comprising of Sections 372 to 384 deals with issuance of Succession Certificates. The sections require that the question arising under this Part should be determined by summary proceeding. By summary proceeding, it is meant that court should decide the question by a short inquiry leading upto and resulting in a rapid decision. The nature of this inquiry must depend on circumstances of each case. Thus, where the court feels that the question involved is not capable of decision in summary proceeding under the Indian Succession Act, it can leave the parties to establish their rights in a regular suit. Section 387 of the Act also enables the unsuccessful party to file a suit. (See AIR 1998 MP 114). The proceeding for grant of succession certificate being summary in nature, the finding arrived at in the said proceeding cannot operate as res judicata in subsequent litigation. (AIR 1988 Kerala 265).
7. In view of the clear position of law, after going through the impugned order and other Materials, I do not find any infirmity or irregularity in the order so as to invite any interference. I feel the ends of justice and equity would be better served if this Appeal is dismissed giving liberty to the appellants who claim to be the sons of late Kumar Sahu to establish their rights in properly constituted Civil Suit. It is further made clear that the observations, if any, made in this order, shall not in any way influence the civil court to decide the issue.
With the observations aforesaid, the Appeal stands dismissed. Parties to bear their own costs.
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