* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 22.11.2011
+ C.R.P. 75/2010
SMT. SUDAMA DEVI ...........Petitioner
Through: Mr. Rajiv Duggal, Advocate.
Versus
SMT. MALTI DEVI & ANR. ..........Respondents
Through: Mr. Parmod Kumar Singhal,
Advocate for R-1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. The order impugned before this court is the order dated 22.04.2004 which had endorsed the finding of the Civil Judge dated 22.10.2001 in proceedings under Section 372 of the Indian Succession Act (ISA).
2. Record shows that Smt. Sudama Devi had filed a petition under Section 372 of the ISA for grant of Succession Certificate in respect of debts and securities of her deceased husband-Ram CRP No. 75/2010 Page 1 of 6 Narain who claimed herself to the widow of the deceased; contention was that the deceased had left behind his service benefits i.e. gratuity, pension, G.P.F. and insurance etc. with his employer i.e. Indian Agricultural Research Institute(IARI), Pusa, New Delhi. Further contention was that the deceased had left behind four sons and one daughter. Notice had been served upon the sons and the daughter; they had filed their no objection for grant of succession certificate in favour of the petitioner. Objections were filed by one Malti Devi who claimed herself to be the first wife and widow of the deceased; contention being that Sudama Devi was not his legally wedded wife; further contention being that Sudama Devi had in fact given up her rights for claiming service benefits i.e. pension/gratuity vide her affidavit dated 16.05.1991 which had been furnished before the IARI. Contention of the objector was that the deceased Ram Narain and Malti Devi had lived as husband and wife and her name had also been entered in her ration card. Besides her ration card, Ex. OW1/2 was the document exhibited by her which is of the year 1980 wherein Ram Narain even in his Department i.e. before his employer had given the name of Malti Devi as his nominee and described her as his wife; this document is an admitted document; Ex. OW1/1 is the affidavit dated 16.05.1991 given by Sudama Devi CRP No. 75/2010 Page 2 of 6 wherein she had given up her claim for pension/gratuity or any other service benefits with the office of IARI relating to Ram Narain. This document is also undisputed. This documentary evidence alongwith oral testimony led before the Trial Court had weighed in the mind of the court taking the balance in favour of Malti Devi. The Trial Court had directed that the succession certificate should be issued to Malti Devi; claim of Sudama Devi for grant of succession certificate had been rejected.
3. This order was endorsed First Appellate Court vide the impugned judgment dated 22.04.2004.
4. Vehement contention of the learned counsel for the petitioner is that there are glaring discrepancies in the testimony of Malti Devi and in fact in her cross-examination she had admitted that Ram Narain was married to Sudama Devi; further Sudama Devi had denied the suggestion that Ram Narain was married with Malti Devi. Submission being that this evidence has not been appreciated in the correct perspective by the two courts below. Further contention of the learned counsel for the petitioner is that he has filed an application under Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') before this court wherein he wishes to adduce certain additional evidence; additional evidence being about the date of birth of the children of CRP No. 75/2010 Page 3 of 6 Sudama Devi and Ram Narainn which show that the first child born out of their wedlock was in the year 1952 which document would show that Sudama Devi was in fact the wife of Ram Narain; to the same effect is a document of the year 1966 i.e. the electoral roll of District Darbanga which would show that Sudama Devi is the wife of Ram Narain; these documents are as noted (surpa) are of the year 1952-1966; present petition had been filed under Section 372 of the ISA by the petitioner Sudama Devi in the year 11.10.1993; these documents were admittedly in existence at that time. Counsel for the petitioner further urges that this application be treated as an application under Order 41 Rule 27 of the Code; even reading it as an application under the aforenoted provision of law, the ingredients of Order 41 Rule 27 of the Code necessarily stipulate that for an additional evidence to be led at the appellate stage, the applicant party must show that in spite of due diligence the said documents could not be produced; there is not a single whisper of this in the present application which has been filed under Section 151 of the Code; this application is without any merit; it is rejected.
5. The documentary evidence led and appreciated by the two courts below does not suffer from any infirmity. Evidence led before the two courts below has been weighed rightly in the scale CRP No. 75/2010 Page 4 of 6 of balance and both the two fact finding courts in fact have correctly held that it was Malti Devi who was the wife and widow of Ram Narain; Sudama Devi also having given up her right for claiming service benefits i.e. pension/gratuity and other service benefits in view of her unchallenged affidavit; it does not now lie in her mouth to claim the succession for the said effects in her favour
6. Impugned judgment on no count suffers from any infirmity.
7. The Apex Court in AIR 1988 SC 1845 titled as Ratbir Kaur and Anr. Vs. M/s. S. Chokosiry and Co. has held that the powers of revisional court are circumscribed where there are two concurrent findings of the court below in support of evidence on record and in such a case revisional court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted and supported the one reached by the courts below. The evidence of the two courts below was on a correct appreciation of the oral and documentary evidence and calls for no interference.
8. Reliance placed by the learned counsel for the petitioner upon the judgment reported in AIR 2000 SC 735 titled as Rameshwari Devi vs. State of Bihar & Ors. is misplaced; this judgment has only recognized the statutory provisions under CRP No. 75/2010 Page 5 of 6 Section 16 of the Hindu Marriage Act which states children of a void marriage are legitimate; in case a hindu male had died intestate and the property left by him was to be divided between children of the first and the second wife equally. In the instant case, the children of the so called second wife i.e. Sudama Devi are not in the picture; it is Sudama Devi who has filed the present petition and is contesting this petition. The said facts are totally distinct and have no application.
9. Petition is without any merit; it is dismissed.
INDERMEET KAUR, J NOVEMBER 22, 2011 rb CRP No. 75/2010 Page 6 of 6