Telangana High Court
Mylarapu Sarojana vs Mylarapu Mallamma And 4 Ors on 11 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.444 OF 2012
JUDGMENT:
Aggrieved by the order dated 21.01.2007 in O.P.No.414 of 2007 (hereinafter will be referred as impugned order) passed by the learned III Additional District Judge at Karimnagar, the respondent No.1 filed the present Civil Miscellaneous Appeal to set aside the impugned order.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned III Additional District Judge at Karimnagar.
3. The brief facts of the case are that the petitioner filed an application under Section 372 of the Indian Succession Act for issuance of succession certificate in her favour and directing respondent Nos.2 to 4 to pay the death benefits of her husband Mylarapu Rayamallu (hereinafter will be referred as 'deceased') to a tune of Rs.3,09,371/-. In the said application, it was alleged as follows:
a) The petitioner is the legally wedded wife of late Mylarapu Rayamallu, who died on 21.11.1997 while working as General Mazdoor in 8-A Incline (Mine) Godavarikhani leaving him the 2 MGP,J CMA_444_2012 petitioner as his sole legal heir and successor. The petitioner is shown as nominee of Myalarapu Rayamallu in all the relevant records of his service to receive terminal benefits after his death.
b) On the death of Myalarapu Rayamallu, the petitioner applied for payment of terminal benefits of deceased to a tune of Rs.3,09,371/- but the respondent Nos.2 to 4 refused to pay the same on the ground that the first respondent made a rival claim stating that she is the second wife of Mylarapu Rayamallu. The first respondent filed O.S.No.73 of 1999 on the file of learned Junior Civil Judge, Peddapally for declaration of her status as wife of deceased but the same was dismissed on 10.10.2000. No appeal was preferred and thereby the decree and judgment in O.S.No.73 of 1999 became final.
c) The first respondent by suppressing the above facts filed O.P.N.559 of 2000 on the file of learned District Judge, Karimnagar for grant of succession certificate and the same was allowed. On coming to know the same, the petitioner filed O.P.No.373 of 2001 before the District Court, Karimnagar praying the Court to revoke the order through which the succession certificate granted in favour of respondent No.1 and the OP was dismissed on 06.10.2004 on the file of learned I Additional District Judge, Karimnagar. Aggrieved by the same, 3 MGP,J CMA_444_2012 the petitioner preferred CMA No.4838 of 2004 before the High Court, wherein the CMA was allowed by setting aside the order passed in O.P.No.559 of 2000 and the succession certificate issued in favour of the first respondent was revoked. While adjudicating the issue, the High Court observed that the parties are liberty to move the lower Court to obtain fresh succession certificate. The petitioner is clause - I legal heir of deceased and thus, she is entitled for terminal benefits of the deceased.
d) The first respondent is the stranger to the family of the deceased. The first respondent is the wife of one Rajaiah, who died about 7 years ago i.e., in or around in the year 2000 at Godavarikhani of Ramagunda. The first respondent developed close intimacy with the family of the deceased and advantage of such intimacy, she is making false claim. The first respondent is not entitled for any claim from the death benefits of the deceased.
4. To the above said petition the respondent Nos.2 to 4 remained ex parte. However, the first respondent filed detailed counter, the brief averments of which are as under:
a) The first respondent withdrawn O.S.No.73 of 1999 as shecould not pay the process due to poverty. The petitioner 4 MGP,J CMA_444_2012 took divorce from the deceased on 16.01.1983 as per customs prevailing in their community, in the presence of elders, as she could not begot children. The petitioner married one Doddipally Mallaiah r/o. Kothagudem and residing with him at H.No.5-1-
95 at Coolie Lane, Kothagudem of Khammam District. The petitioner gave birth to children through Doddipally Mallaiah, as such the petitioner cannot be treated as class - I heir of the deceased.
b) The first respondent was given in marriage to Mardugonda Rajiah at her childhood, as such she took customary divorce as prevailed in their community. Later the first respondent married the deceased, after customary divorce deed executed by the petitioner in favour of the deceased. The deceased got entered in all his service records, the name of first respondent as his nominee.
c) The petitioner is not entitled to death benefits of deceased and the petitioner filed this case at the instance of Doddipally Mallaiah. There are no bona fides in the petition and thus, prayed to dismiss the petition.
5. Before the trial Court, PWs 1 to 3 were examined and Exs.A1 to A4 were marked on behalf of the petitioners and 5 MGP,J CMA_444_2012 whereas on behalf of respondents, RWs 1 to 4 were examined and Exs. B1 to B18 were marked. The learned III Additional District Judge at Karimnagar after considering the evidence on record, both oral and documentary, has allowed the petition granting succession certificate in favour of petitioner.
6. Dissatisfied by the impugned order, the respondent No.1 filed the present Civil Miscellaneous Appeal to set aside the impugned order.
7. Heard both sides and perused the record including the grounds of appeal.
8. The first and foremost contention of the learned counsel for the respondent No.1 is that the petitioner is not entitled for succession certificate since she took divorce from the deceased on 16.01.1983 itself and married one Doddipaly Mallaiah r/o.H.No.5-1-95, Kothagudem of Khammam District. In support of her contention, the respondent No.1 relied upon Ex.B1 copy of customary divorce on stamp paper of Rs.3/- and also the evidence of RWs 3 and 4. Ex.B1 was specifically denied by the petitioner and it is to be observed that both the spouses must be aware of the divorce proceedings and their signatures are very much necessary on any divorce. The learned III 6 MGP,J CMA_444_2012 Additional District Judge at Karimnagar in the impugned order at page No.10 and paragraph No.17 has clearly stated that even according to the customs prevailing in the community, a customary divorce must be signed by both the spouses but in Ex.B1 there is no signature of deceased.
9. Moreover, since the petitioner is an illiterate, her thumb impression has to be subscribed on the alleged customary divorce under Ex.B1. But surprisingly, in Ex.B1 the name of the petitioner was written as if she is a literate. Further, a mere name as "Mallamma" was written and her surname was also not mentioned. RW3 in his evidence admitted that he does not know the contents of Ex.B1 and also as to whether it was issued by the court or not. RW4 is the caste elder, who belongs to Chadrapur of Maharashtra State and he admitted in his cross examination that he can read and writ Hindi but he cannot read or write Telugu. RW4 admitted that Ex.B1 was in Telugu. Thus, both the witnesses do not know about the contents of Ex.B1. Even otherwise, it is to be seen that the petitioner and deceased belong to Rajaka Community and there is no practice of customary divorce in such community. Furthermore, RW4 admitted that he knew that the parties belonging to washer-man caste profession belong to Hindu 7 MGP,J CMA_444_2012 religion and they cannot take customary divorce; it is not permitted under law; they have to obtain divorce from Court of law; he also informed the parties about the law. Thus, the every evidence adduced on behalf of respondent No.1 clearly discloses that there is no question of customary divorce in the washer-man/dhobi/rajaka community and that none of the witnesses examined on behalf of respondent No.1 are aware about the contents of Ex.B1. Even the learned III Additional District Judge at Karimnagar also observed in the impugned order that customary divorce deed among the rajaka community is against law.
10. As per the evidence of RW4 the contents of Ex.B1 were read over by Chakali Mallaiah and Chakali Somaiah, who are alleged to be the attestors of said document. But strangely the attestors were not examined on behalf of respondent No.1 to prove Ex.B1/Ex.B18. Due to non examination of attestors of Ex.B1/Ex.B18, more particularly when the RWs 3 and 4 are not aware of the contents of Ex.B1/Ex.B18 and since there is no other evidence to substantiate that Ex.B1/Ex.B18 is genuine and valid, this Court cannot consider the said document to come to a conclusion that the deceased and petitioner got divorced.
8 MGP,J CMA_444_2012
11. The other contention of the learned counsel for the respondent No.1 is that Exs.A2 to A4 are not sufficient documents to prove her claim. Ex.A2 is the order in CMA No.4838 of 2004 preferred by the petitioner aggrieved by the succession certificate issued in favour of the respondent No.1 in O.P.No.559 of 2000 and by allowing the petition filed by the petitioner in O.P.No.373 of 2001. Ex.A3 is the order of the Assistant Labour Commissioner, Mancherial, wherein it was declared that the petitioner, who is the wife of deceased as nominee as per Form F under sub section (1) of the Section 6 of the Act and thereby entitled to gratuity amount payable to the deceased. These documents amply establish that the petitioner is the legal heir of deceased. Apart from the above documentary evidence, the petitioner got examined her paternal aunt and co- worker of deceased as PWs 2 and 3, whose evidence was corroborating with the evidence of petitioner as PW1. Though PWs 1 to 3 were cross examined, nothing was elicited to discard their evidence. Even otherwise, the respondent No.1 herself admitted that the petitioner is the wife of deceased and that their marriage was dissolved by customary evidence, however, respondent No.1 could not establish the genuineness of Ex.B1 to substantiate that the marriage between petitioner and deceased was dissolved by customer divorce. Furthermore, the 9 MGP,J CMA_444_2012 respondent No.1 did not adduce any evidence in support of her contention that she got divorced her first husband (Mardugonda Rajiah) prior to her alleged second marriage with the deceased.
12. In this regard, the learned III Additional District Judge at Karimnagar relied upon a decision of the Honourable Apex Court in Subramani and others v. M. Chandralekha 1, wherein it was observed that in the absence of pleadings that marriage between the husband and wife could be dissolved in their community under custom and in the absence of any satisfactory evidence let into prove the custom prevalent in the community or the procedure to be followed for dissolving the marriage, it cannot be held that marriage between the respondent and her husband stood dissolved by executing the marriage dissolution deed Ex.B1 is in conformity with the custom applicable to divorce in the community which the parties belong. The above said decision is squarely applicable to the facts of the case on hand.
13. The other contention of the learned counsel for the respondent No.1 is that the documentary evidence under Exs.B2 to B14 and also the proceedings of the Labour Commissioner clearly shows that the respondent No.1 alone is 1 AIR 2005 Supreme Court 485 10 MGP,J CMA_444_2012 entitled for succession certificate. When the respondent No.1 herself admitted that the petitioner is the wife of the deceased and since the respondent No.1 failed to establish Ex.B1/Ex.B18, respondent No.1 cannot be considered as class - I heir of the deceased. Moreover, the respondent No.1 did not adduce any documentary evidence like wedding card or any other material to establish that she got married the deceased after the alleged customary divorce between the petitioner and deceased. The oral evidence of RWs 3 and 4 is not in corroboration with the evidence of respondent No.1 as RW1. Admittedly, the succession certificate granted in favour of respondent No.1 in O.P.No.559 of 2000 was set aside by the order dated 06.04.2005 of this Court in CMA No.4838 of 2004, which was preferred by the petitioner and in the said order Court observed as under:
"13. In view of the same, once it is established that the appellant/petitioner is the legally wedded wife of the deceased and the 1st respondent failed to prove the valid marriage between herself and the deceased except living with the deceased as wife, necessarily she has to implead the petitioner/1st wife and the deceased's late mother, who are entitled to succeed the estate of the deceased subject to proof of divorce between the appellant and the deceased, in the proceedings initiated for succession. Any succession certificate obtained without inpleading the legal heirs knowingly that both of them are made rival claims before the Controlling Authority under Payment of Gratuity Act will amount to obtaining the certificate fraudulently by concealment of some material facts."
14. As seen from the above, the petitioner was not impleaded in O.P.No.559 of 2000 and moreover the respondent No.1 failed 11 MGP,J CMA_444_2012 to establish her marriage with the deceased and respondent No.1 is entitled for succession certificate subject to proof of divorce between the petitioner and the deceased. But the respondent No.1 failed to establish divorce between the petitioner and deceased and also failed to establish her marriage with the deceased. Even if the contention of the respondent No.1 that she married the deceased, a second marriage contracted by a Hindu during the subsistence of first marriage is, null and void as per section 11 read with clause (i) of Section 5 of Hindu Marriage Act. In Yamanaji H. Jadhav. V. Nirmala 2 the Apex Court observed that as per the Hindu Law administered by courts in India, divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized by custom; public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law; thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public 2 2002 (2) SCC 637 12 MGP,J CMA_444_2012 policy. In such circumstances, the respondent No.1 is expected to plead and establish that there is a custom of obtaining customary divorce in their community and about the procedure of obtaining such customary divorce. Since the respondent No.1 failed to succeed in the above said two aspects and as the petitioner succeeded in disproving Ex.B1/Ex.B18, the respondent No.1 is not entitled for any relief.
15. In view of the above facts and circumstances, this Court is of the considered opinion that the learned III Additional District Judge at Karimnagar has passed the impugned order after considering all the aspects and arrived to a right conclusion. Hence, the impugned order does not require any interference of this Court and thereby the Civil Miscellaneous Appeal is liable to be dismissed.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 11.01.2024 AS