Heard Smt S.A.V.Ratnam vs Nirmala4"
2022 Latest Caselaw 4124 AP

     THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                         C.M.A.No.148 of 2006

JUDGMENT:-

       Heard Smt S.A.V.Ratnam, learned counsel for the appellants

and    Sri   M.   Bala   Subramanyam,   learned   counsel   for   the

respondents.

2. The present Appeal is filed under Section 384 of Indian

Succession Act r/w Section 19 of the Family Courts Act assailing

the Order dated 31.10.2005 in S.O.P.No. 1440 of 2000 on the file

of the learned Judge, Family Court, Visakhapatnam.

3. The facts of the case are like this:- The respondent nos.1

and 2 herein filed a petition under Section 372 r/w 33 of the

Indian Succession Act for issuance of the succession certificate to

declare them as legal heirs of the deceased late Goginapudi

Venkata Ramana (hereinafter referred to as "the deceased") as

class-I legal heirs of the deceased to realize the terminal benefits

of late Goginapudi Venkata Ramana, who worked as peon-cum-

messenger vide code no. 15559 in Andhra Bank, Chodavaram

Branch.

4. The case of the 1st respondent herein is that she got married

to the deceased as per the Hindu rites and customs and they lived

happily for about three (3) years. Later, the deceased got employed

as Messenger in Andhra Bank, Yellamanachili Branch and he got

addicted to bad vices. As such the 1st respondent has left to her

parents' house. The deceased used to come occasionally to her

parents house. Though the dispute was brought before the elders

in the panchayat, it yield no result. Later, she filed M.C.No.16 of

1992 before the learned Judicial First Class Magistrate,

Narsipatnam for maintenance and also she filed another petition

for enhancement of the maintenance. Both the petitions were

allowed.

5. As per the averments in the petition filed for succession

certificate, the 1st respondent herein got married to the deceased

at Pappusettipalem Village of Golugonda Mandal, Visakhapatnam

District and he died intestate on 18.01.2000. Immediately after

the death of the deceased, the 1st respondent sent notice dated

27.10.2000 to the respondent nos.6 and 7, who were the Zonal

Officer, Andhra Bank and Branch Manager, Andhra Bank,

Chodavaram respectively for the retirement benefits. She also

issued another notice dated 16.03.2000 seeking compassionate

appointment on compassionate grounds. An application was made

to the Revenue Inspector for issuance of legal heir certificate for

the purpose of claiming terminal benefits of the deceased, the

Revenue Inspector has returned the application with an

endorsement dated 18.05.2000 stating that the appellants herein

are the legal heirs of the deceased, hence, the Revenue Inspector

directed them to obtain the Succession Certificate from the

competent Court which gave rise to file the present petition for

issuance of Succession Certificate.

6. After service of the notice, the appellants herein, who were

the respondent no.1 to 4 (hereinafter called as "the appellants") in

Succession O.P. filed their counter affidavits and contested the

matter stating that the 1st respondent herein got married to the

deceased in the year, 1989 and they got three children in their

wedlock. The deceased has given customary divorce to the 1 st

respondent and the same is mentioned in the registered Will Deed

document bearing no. 1692 of 1998 dated 19.09.1998 and the

appellants herein were given some properties though the

appellants prayed to dismiss the O.P. filed for Succession

Certificate.

7. The 3rd respondent herein is the mother of the deceased.

8. The official respondents who were arrayed as respondent

nos.4 and 5 herein have filed their counter affidavit asserting that

the 1st appellant, Goginapudi Varalaxmi was nominated to receive

all his retirement benefits and also they have issued a demand

draft in favour of the 1st appellant herein towards gratuity and

leave salary. Further, an amount of Rs.20,000/- was kept in

Kalpataruvu term deposit in the name of Sri G.S.G.V. Prasad in

KD No.49/962 and an amount of Rs.30,000/- was kept in deposit

in the name of G. Ratnaprabha in KD No.50/93 and all the three

deposits were matured by 21.10.2008 and the three deposits are

freezed in view of the pending litigation. They also further asserted

that the deceased has given divorce to Smt Varahalamma, who is

the 1st respondent herein.

9. Initially, the succession O.P. was filed before the Principal

District Court and the same was made over to the Family Court,

Visakhapatnam on administrative grounds.

10. The learned Family Court Judge, by controverting the

contents contained in the petition and the counter and re-iterating

the pleadings of the petitioners in the wake of the evidence of the

parties, framed the relevant issue, Whether the petitioners

(respondent nos.1 and 2 in the C.M.A.) are entitled for succession

certificate as prayed for ?

11. The contention of the 1st respondent herein is that she got

married with the deceased and she filed maintenance case and it

was never stated in the counter filed by the deceased that the

deceased divorced his 1st wife and got married to the 1st appellant

herein. She also stated that there is no such customary divorce

taken place in between the 1st respondent herein and the

deceased.

12. The contention of the 1st appellant herein is that the

deceased divorced his 1st wife, Smt Varahalamma by customary

divorce. Later, the deceased married the 1 st appellant herein and

the same is asserted in the Will.

13. After considering the evidence on both sides, the learned

Judge held that the 1st appellant herein has failed to prove the

Will which was executed by the deceased as per Section 68 of the

Indian Evidence Act, by examining atleast one attestor to the Will,

by relying on the Judgment in "Satyavathi V. P. Venkata Ratnam1"

and held that unproved Will cannot be said to be a proof of the

customary divorce. The Court further observed that unless divorce

has been categorically proved it shall be construed that the

marriage of the deceased with the 1st respondent shall be

1988 (1) ALT page 915

continued by taking the presumption under Illustration (d) to

Section 114 of the Indian Evidence Act which reads as follows:-

"Once a state of thing is shown to exist there is a

presumption of its continuance", as held by the Hon'ble

Supreme Court in "Ambica Prasad V. Ram Ikbal Rai2".

14. The learned Judge, eventually held that no divorce has

taken place in between the 1st respondent herein and the deceased

as the 1st appellant failed to prove the customary divorce between

them. It is further held that there is no such custom prevailed in

the community of the deceased and eventually granted succession

certificate in favour of the 1st and 2nd respondents herein, who are

the wife and daughter of the deceased.

15. Aggrieved by the Order dated 31.10.2005 in S.O.P.No.1440

of 2000, the present Appeal came to be filed by the appellants

herein.

16. The following issues are relevant for disposal of the present

Appeal which emanated from the record and on oral submissions

raised by the 1st appellant:

i. Whether the 1st appellant herein has ably proved that there is customary divorce prevailing in the caste ?

ii. Whether Suit for Declaration has to be filed necessarily for claiming retirement benefits of the deceased under Section 372 of the Indian Succession Act ?

iii. Whether the application for such Certificate shall be made to the District Judge under Section 372 of the Indian Succession Act ?

AIR 1966 SC 505

17. It is the further contention of the learned counsel for the

appellants that, the Court below ought to have been taken the

factum of customary divorce which is asserted in the Will.

18. Answering to the first contention, as per the settled

proposition of law, Hindu marriage can be dissolved only in

accordance with the provisions of the Hindu Marriage Act, 1955

as held by the Hon'ble Supreme Court in "Subramani V. M.

Chandralekha3", "Yamanaji H. Jadhav Vs. Nirmala4", "Swapnanjali

Sandeep Patil v. Sandeep Ananda Patil 5"

19. If customary divorce practice is claimed in caste or a

community the same needs to be clearly established and under

Section 29(2) of the Act, saves and recognizes the customary

divorce. Section 29(2) of the Hindu Marriage Act (for short, "the

Act") is quoted hereunder:-

"Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commence of this Act."

20. As per the enactment of the Hindu Marriage Act, matrimony

that which is containing rights and obligations is governed by the

provision of Section 29 of the Act. Section 29 is an exception to

the Act, which saves custom from the applicability of the Act must

be strictly established by clear and cogent pleadings and reliable

evidence. Custom therefore must be proved and established as a

fact. Even though customary divorce is permissible in one caste

2005 (9) SCC 407

2002 (2) SCC 637

2019 SCC Online SC 329

and community, in the absence of such evidence Courts are not

justified in interfering unless it has been proved.

21. The present case discloses a failure on the part of the

appellants to establish by cogent evidence, the nature and

particulars of the custom. No witness was examined by the 1st

appellant herein, to place on record any such facts and

circumstances to show that the customary divorce has taken

place. The 1st appellant has failed to lead any evidence as to

nature, mode and manner of the divorce where burden is upon

the 1st appellant under Section 101 of the Indian Evidence Act

which clearly lays down that, "the burden of proving fact always

lies on the person who asserts". The 1st appellant who asserted

that the deceased has given customary divorce to the 1 st

respondent herein has to establish the customary divorce. As a

result, the findings of fact recorded by the learned Family Court

Judge dissuades me from taking a contrary view relying on the

afore cited decisions from the finding arrived by the trial Court.

22. So, even assuming that Will need not required to be proved

for a while for the present facts of the case, the factum of

customary divorce has to be proved in accordance with law. Mere

the assertion of the customary divorce in the Will cannot be

construed as there is a customary divorce unless it is proved by

leading evidence.

23. In "Smt Sarabati Devi and another Vs. Smt. Usha Devi 6",

the Hon'ble Supreme Court has held that mere nomination does

not have the effect of conferring on the nominee, any beneficial

interest on the death of the deceased-assured. The nomination

only indicates the hand which is authorized to receive the amount.

The amount, however, can be claimed by the heirs of the assured

in accordance with the law of succession governing them.

24. The second contention of the appellant is that, Section 372

of the Indian Succession Act has no application and the 1st

respondent ought to have filed a Suit for Declaration is

maintainable under Section 372 of the Indian Succession Act. In

order to answer the said contention this Court relies on the

Judgment of the Hon'ble Supreme Court in "Madhavi Amma

Bhavani Amma V. Kunj Kutti Pillai Meenakshi Pillai 7", wherein,

after considering the provisions of Sections. 372, 373, 387 and

381 of the Indian Succession Act, the Hon'ble Court held that:-

"So, this certificate merely affords full indemnity to the debtor for the payments he makes to the person holding such certificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certificate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subseqently interse between the claimants. The use of words "good faith" in Section 381 reinforces that decision in these proceedings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may in future better claimant but that would not affect the indemnification of the debtor. Thus

AIR 1984 SC 346

2000 (6) SCC 301

we find accumulatively because of the grant of Succession Certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subsequent proceeding it may be held it to belong to other claimant, including the contesting parties".

[Emphasis Supplied]

25. The very purpose of issuing of the certificate is to absolve the

debtor to pay the debts or the securities as specified in the

certificate to the holder of the certificate and conclusively

concludes that his part of obligation of such payment is construed

to be in good faith and it not debars the aggrieved person to be

questioned in subsequent suit under Section 387 of the Indian

Succession Act, when the succession certificate issued under

Section 372 of the Indian Succession Act.

26. Learned counsel for the appellant relied on the Judgment of

the Madras High Court in "D. Gopi Vs. Nil" in C.R.P.No.378 of

2021 in 17.03.2021. In the present C.R.P., the petitioner herein

has sought for compassionate appointment by producing a legal

heir certificate. But the authorities have directed the petitioner

therein to obtain the Succession Certificate. The petitioner filed

Succession O.P. before the jurisdictional Court without any

documents. Hence, the jurisdictional Court has directed to re-

submit the petition by filing appropriate documents. Aggrieved by

the said Order, the petitioner filed the above C.R.P. before the

High Court of Madras, where, the High Court has dismissed the

C.R.P. confirming the Order passed by the Court below and no law

was laid in the said C.R.P. Hence, it is no way helpful to the

present case.

27. The third contention raised by the appellant herein is that

an application before the Family Court Judge is not maintainable

and application under Section 372 of the Indian Succession Act

has to be invariably file before the District Judge. The Order

impugned in this Appeal, passed by the Family Court Judge, is

not having jurisdiction as per Section 372 of Indian Succession

Act. Hence, prayed to set aside the order. Under Clause (2) of

Section 388 of the Indian Succession Act, "any inferior Court so

invested shall, within the local limits of its jurisdiction, have

concurrent jurisdiction with the District Judge in the exercise of

all the powers conferred by this part upon the District Judge, and

the provisions of this part relating to the District Judge shall

apply to such an inferior Court as if it were a District Judge". As

per the said provision, any inferior Court shall be construed as if

it were a District Judge. Where in this case, the learned District

Judge has made over the case to the Family Court Judge on the

administrative grounds. Hence, the contention that the Family

Court Judge has no jurisdiction has no force. In view of the above

Section, any inferior Court is having jurisdiction to grant

Succession Certificate under Section 372 of the Indian Succession

Act.

28. Having completed all the modal formalities and taking into

consideration the entire evidence brought on record in the right

perspective, the Court below recorded the finding of the fact that

the appellants herein have not proved the Will in accordance with

Section 68 of the Indian Evidence Act and the customary divorce

which prevailed in their caste and the divorce was granted by the

deceased to his 1st wife by the customary divorce.

29. Eventually, the appellants failed to discharge the burden to

prove that the custom prevailed in their caste and the 1st

respondent was given divorce by the deceased in the customary

law and miserably failed and did not produce any cogent and

convincing evidence in this relevant connection.

30. The appellants herein have also not adduced any evidence to

show that the appellant got married with the deceased Venkat

Ramana and they lived together as man and wife any period of

consideration time and the respondent nos.2 to 4 were born to

them in their wedlock.

31. After considering the evidence and after deep consideration

of the entire matter, there is no merit in the instant case in this

context.

32. Accordingly, the Civil Miscellaneous Appeal is dismissed

confirming the Order dated 31.10.2005 in S.O.P. No.1440 of 2000.

There shall be no order as to costs.

Miscellaneous Petitions pending, if any, shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO

Date: 19-07-2022 EPS

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

C.M.A.No.148 of 2006

Date: 19-07-2022

EPS