Andhra Pradesh High Court - Amravati
Unknown vs The Petitioners Have Also Not ... on 3 February, 2021
THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
&
THE HON'BLE MS JUSTICE J.UMA DEVI
CIVIL MISCELLANEOUS APPEAL No.1323 of 2018
JUDGMENT: (per Hon'ble Ms Justice J.Uma Devi)
The order, dated 16.08.2018, in S.O.P No.34 of 2017 on the
file of the Principal Senior Civil Judge, Vijayawada, is assailed by the
petitioners therein, raising a preliminary ground that when the
appellants/petitioners themselves have given the date of divorce
decree dated 31.07.2007 in O.P.No.539 of 2005 on the file of the 1st
Additional Senior Civil Judge at Ranga Reddy, the court below ought
not to have rejected their application made for issuance of
Succession Certificate, as the said information itself would indicate
that the marriage between their brother Dr.Vemuri Srirama Sastry
and his wife Smt.Parvathi is dissolved by granting a decree of
divorce. They have raised another contention that despite filing of
some documents to show that all claims between their deceased
brother and his wife are resolved and that permanent alimony is
paid by their deceased brother to his wife, the court below ought
not to have rejected their request made for issuance of Succession
Certificate simply on the ground of non-filing of certified copy of the
order in O.P.No.539 of 2005 and other relating documents etc., etc.
Apart from the aforementioned contentions, the
appellants/petitioners have raised yet another contention that when
no claim is made by any third party on the estate of their deceased
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CMA.1323 of 2018
brother, the court below ought not to have refused to grant the
relief claimed by them.
We have read the order impugned. The operative portion of
the impugned order reads as under:
"....The petitioners claim that they are the only legal heirs to
the deceased Dr.Vemuri Srirama Sastry. Even the couple had no
issues, further his wife took divorce. Their claim that they are Class-I
legal heirs. The schedule of Hindu Succession Act shows brother and
sisters are Class-II heirs and the widow is the Class-I heir. Even
according to the petitioners, the deceased Dr.Vemuri Srirama Sastry
was married but divorced. If really there was divorce, no doubt, the
petitioners being the sisters and brother of deceased Dr.Vemuri
Srirama Sastry will be entitled for estates more particularly property
claimed in the Succession petition. If really there was divorce they
should have filed the decree or order of said O.P.No.539 of 2005.
Except the death certificate of Dr.Vemuri Srirama Sastry, no other
document is filed and unless it is clear whether there was divorce
between the deceased Dr.Vemuri Srirama Sastry and his wife, the
petitioners cannot claim the right in the estate of the deceased
Dr.Vemuri Srirama Sastry. Hence petition is devoid of merits."
Since a preliminary ground is raised by the appellants
themselves in the appeal grounds that the court below has failed to
consider the document filed by them along with O.P.No.539 of 2005
which includes the Lok Adalat award and decree of divorce, we have
gone into the contents of the order impugned. The order impugned
only indicates that the appellants/petitioners have filed the death
certificate of the deceased Dr.Vemuri Srirama Sastry. Though in the
order impugned a reference is made about filing of the death
certificate of Dr.Vemuri Srirama Sastry, and it is marked as Ex.A1,
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CMA.1323 of 2018
no list of documents is appended to the order impugned. It is
understood from the grounds urged by the appellants particularly
from ground No.4 that they have mentioned the date of decree of
divorce in O.P.No.539 of 2005 on the file of the 1st Additional Senior
Civil Judge at Ranga Reddy. But as a matter of fact, copy of the
decree in O.P.No.539 of 2005 has not been filed either in this court
or in the trial court.
Raising of a simple assertion in the pleadings that the decree
of divorce is passed in O.P.No.539 of 2005 and that the marriage
between the petitioners' deceased brother and his wife has come to
an end, does not absolve them from the responsibility of discharging
the burden of proving their case, and such primary duty has not
been discharged by them to the satisfaction of the court below. It
appears that the petitioners have not placed any documentary
evidence before the court below in proof of their case, except
contending that the marriage between their deceased brother and
his wife Parvathi has come to an end by granting decree of divorce.
The petitioners have also not brought in any documentary evidence
with regard to deposits, if any, made by their deceased brother in
the respondents' bank by marking the fixed deposit receipts etc.
In that view of the matter, the order assailed cannot be held
as invalid.
Though we have not noticed any apparent error in the order
impugned, having considered the submission of the appellants'
counsel that the appellants have document to prove that the
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CMA.1323 of 2018
marriage of their deceased brother and his wife has been dissolved
by granting decree of divorce, and in so far as the claim they have
made regarding the fixed deposits made by the appellants' deceased
brother, we deem it appropriate to remit the matter back to the
court below to dispose it of as per law, by providing a reasonable
opportunity to the appellants to adduce evidence regarding the
alleged divorce between their brother and his wife.
In view of the above, the order impugned is set aside and the
appeal is allowed accordingly, remitting the matter back to the court
below, giving liberty to the appellants to adduce evidence regarding
the alleged divorce between their brother and his wife before the
court below, and that the court below taking into consideration the
same shall dispose of the S.O.P.No.34 of 2017 by passing an
appropriate order, as per law. No costs.
Pending miscellaneous petitions, if any, shall stand closed in
consequence.
______________________
U.DURGA PRASAD RAO,J
_______________
J.UMA DEVI,J
Date: 03.02.2021
Dsr
