Allowed

Smt. Raj Kumari @ Asha Devi v. Smt. Meera Devi and 7 Others

Allahabad HC8 May 2019FAFO/2797/2014

Case brief

AI extract

What is this about?

The High Court upheld the appellant's appeal against a Family Court order. It set aside the trial court's suggestion that the appellant file a declaratory civil suit, holding that the specific remedy under Section 383 of the Indian Succession Act read with Order IX Rule 13 CPC must be applied. The case was remitted for fresh disposal.

What did the court decide?

Impugned order dated 13.8.2014 set aside; case remitted to lower court for fresh disposal of application under Section 383 of Indian Succession Act.

Smt. Raj Kumari @ Asha Devi Vs Smt. Meera Devi… — Succession and Inheritance | Allahabad HC (2019)

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Court No. - 40

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Case :- FIRST APPEAL FROM ORDER No. - 2797 of 2014

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Appellant :- Smt. Raj Kumari @ Asha Devi Respondent :- Smt. Meera Devi And 7 Others Counsel for Appellant :- Prabhat Kumar Singh,Deo Prakash Singh,P. Singh Counsel for Respondent :- Manoj Kumar Singh

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Hon'ble Harsh Kumar,J.

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This appeal has been filed against impugned judgment and order dated 13.8.2014 passed by Additional Civil Judge (Senior Division) Court No.13, Allahabad in Restoration Application No.44 of 2013.

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Brief facts relating to the case are that respondent No.1, Smt. Meera Devi moved an application under Section 372 of Indian Succession Act seeking Succession Certificate on death of Vijay impleading her children as O.P. Nos.1 to 5 and upon filing of "No objection" by her children application under Section 372, Indian Succession Act was allowed vide order dated 8.8.2012. On 9.10.2013 appellant moved an application under Section 383 of Indian Succession Act stating that she is widow of Vijay and was necessary party to the proceedings of case under Section 372 under Indian Succession Act in which without impleading her succession certificate dated 18.9.2012 has been issued in furtherance of exparte order dated 8.8.2012 and passed behind her back, which is liable to be revoked.

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Above application was accompanied with an application for condonation of delay and affidavit of appellant Raj Kumari herself with allegations that proceedings for obtaining succession certificate under Section 372, Indian Succession Act were collusive in which Smt. Raj Kumari, widow of deceased was not impleaded though she was necessary party and she had no knowledge of proceedings of case under Section 372, Indian Succession Act having no opportunity to file objections and that she had no knowledge of publication which was deliberately made in a newspaper "Swatantra Chetna", which has very negligible circulation in city and has absolutely no circulation in the vicinity of residence of appellant, who lives in Village Udaichandrapur, Post Ismileganj, Tahsil Soraon, District Allahabad.

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In above applications it was also prayed that if the court finds that there is any delay in moving of application, delay may be condoned and by treating application to be within time it may

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be allowed by recalling exparte order and revoking succession certificate. The application was opposed by Smt. Meera, respondent No.1, holder of succession certificate and was disposed of by trial court vide impugned order dated 13.8.2014 aggrieved with which appellant has preferred this appeal under provision of Section 384 of Indian Succession Act.

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Heard Shri Deo Prakash Singh, learned counsel for the appellant, Shri R.P. Patel, Advocate holding brief of Shri Manoj Kumar Singh, learned counsel for respondent Nos.2 & 3 and perused the record as well as lower court record. No one appeared for respondent Nos.1 and 4 to 8 despite sufficient service.

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Learned counsel for the appellant contends that impugned order is bad on facts and law; that the learned lower court acted wrongly and illegally in not setting aside exparte order passed in succession case No.172 of 2012 and in not revoking succession certificate dated 18.9.2012 issued in furtherance of an exparte order passed behind the back of appellant without impleading her while she was necessary and affected party; that there was plenty of evidence on record to show that appellant was only legally wedded wife of deceased Vijay Gaur @ Khinni Lal; that respondent No.1 Meera Devi was never married to Vijay Gaur @ Khinni Lal and respondent Nos.4 to 8 are not his children; that Meera Devi never married to Vijay and appears to have developed illicit relations with Vijay Gaur @ Khinni Lal, and during lifetime of appellant, her alleged marriage with Vijay Gaur @ khinni Lal was null & void; that Meera had no right to obtain succession certificate on death of Vijay Gaur @ Khinni Lal; that with application for recall of exparte order and revocation of succession certificate, copies of ration card, votor ID, Pass Book, Domicile Certificate, death certificate of Vijay Gaur @ Khinni Lal, family membership certificate, educational certificates of respondent No.3, son of deceased etc. as well as appointment letter of University of Allahabad dated 16.1.2012 with regard to appointment of Guddu, son of appellantdeceased, on compassionate ground on the permanent post under dying in harness rule and copy of minutes of Standing Welfare Committee for compassionate appointments in the University of Allahabad dated 11.11.2010 approving appointment of respondent No.3, Guddu S/O Vijay Gaur @ Khinni Lal, deceased, rejecting the claim of Vivek, respondent No.4, son of respondent No.1 were filed on record; that learned lower court analyzed the evidence on record in as many as 14 pages, but acted wrongly in neither allowing application nor rejecting it; that learned lower court acted wrongly by suggesting appellant to file a declaratory suit and disposing it by making an arrangement that if respondent No.1 obtains any

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benefit under impugned succession certificate, she will submit an undertaking before the court that it will be subject to decision of suggested declaratory suit; that newspaper Swatantra Chetna has no circulation even within city what is to say of its circulation in Village Udaichandrapur where the appellant resides and so the appellant could not have got any knowledge of proceedings of succession case by way of publication or otherwise; that appellant is necessary party to proceedings and after recalling and setting aside order order dated 8.8.2012 and revoking succession certificate dated 18.9.2012, the appellant may be afforded opportunity of filing objection and adducing evidence, before afresh disposal of petition under Section 378 of Indian Succession Act on merits, by trial court.

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Learned counsel for respondent Nos.2 & 3, who are children of appellant, have no objection, to appeal filed by her mother.

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Upon hearing parties counsel and perusal of record as well as lower court record I find that in the impugned order learned lower court has discussed the evidence on record in detail and has passed impugned order on finding substance in the contention of appellant of her being legally wedded wife of deceased and respondent Nos.2 & 3 being her legitimate children from deceased, but the learned lower court acted wrongly in not allowing the application and in not setting aside order dated 8.8.2012 as well as in not revoking succession certificate dated 18.9.2012. Learned lower court has also acted wrongly in holding requirement for filing of civil suit for declaration by appellant granting her liberty to file such suit. There can be no reason for court to suggest a party for filing civil suit for declaration for getting it revoked the succession certificate issued under provisions of Section 372 under part X of Indian Succession Act while Section 383 of same part X, Indian Succession Act contains specific provisions for revocation of such certificate.

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It is pertinent to mention that application moved by appellant under Section 383 of Indian Succession Act with prayer for setting aside exparte proceedings of issuance of succession certificate, without her knowledge and behind her back and is virtually on application under Section 383 of Indian Succession Act read with Order IX Rule 13 of Civil Procedure Code. There are rival claims of Meera as well as appellant Smt. Raj Kumari with plenty of documentary evidence in support of claims of each of them and allegations and counter allegations against each other denying the marital status of other. In the circumstances from the documentary evidence on record viz. extract of khatauni with entry of name of appellant over

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agricultural land of Vijay Gaur @ Khinni Lal, ration card and voter list, appointment letter regarding appointment of respondent No.2, Guddu on compassionate ground under dying in harness rules on death of Vijay Gaur @ Khinni Lal in Allahabad University etc. regarding claim of son of respondent No.1, it is crystal clear that Smt. Raj Kumari, appellant had a strong claim of her being widow and respondent Nos.2 & 3, being children of Vijay Gaur, deceased and she was necessary party to the proceedings under Section 372 of Indian Succession Act and respondent No.1 deliberately and maliciously with malafide intention got succession case decided without impleading her. It is also clear that without impleading Smt. Raj Kumari and giving her opportunity of hearing, question of issuance of succession certificate may not have been finally and effectively adjudicated.

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The learned lower court had no jurisdiction to suggest appellant to seek her remedy by filing civil suit for declaration and by making such suggestion in clear disregard to legislative provisions of Section 383 of Indian Succession Act, it has exercised a jurisdiction not vested in it under law.

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Upon moving of application under Section 383 of Indian Succession Act r/w Order IX Rule 13 C.P.C. by appellant Raj Kumari, the learned lower court was required to determine (i) if she was necessary party to be heard before issuance of succession certificate and (ii) whether knowledge of proceedings of case under Section 372 of Indian Succession Act could be imputed on her and in case of coming to a positive finding on issue no.(i) and negative finding on issue no. (ii) it ought to have allowed application and by setting aside exparte order and revocation of certificate ought to have restored case under Section 372 of Indian Succession Act for its afresh disposal after hearing both parties. By not deciding application of appellant on above points the learned lower court failed to exercise a jurisdiction vested in it under law as well as in exercising a jurisdiction not vested in it under law as observed earlier.

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The impugned judgment and order is absolutely wrong and incorrect and if allowed to stand will occasion in failure of justice and irreparable injury to appellant. The impugned order is liable to be set aside and appeal is liable to be allowed.

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Appeal is allowed and impugned order dated 13.8.2014 is set aside. The restoration case is remitted back to the court below for afresh expeditious disposal of application under Section 383 of Indian Succession Act read with Order IX Rule 13, C.P.C. in accordance with law after affording reasonable opportunity of

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hearing to both the parties.

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Let lower court record be sent back to court below along with copy of this judgment for expeditious disposal of Misc. Case/Restoration Application No.44 of 2013 in accordance with law, if possible within three months.

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Order Date :- 8.5.2019 T. Sinha

Smt. Raj Kumari @ Asha Devi v. Smt. Meera Devi and 7 Others

Case brief

What is this about?

What did the court decide?

Smt. Raj Kumari @ Asha Devi v. Smt. Meera Devi and 7 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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