Sarita Wd/O Hargovind Chauwhan vs Chetan S/O Hargovind Chauwhan And ...
2007 Latest Caselaw 464 Bom

JUDGMENT

V.A. Naik, J.

1. By an order dated 4-4-2007, this Court had issued notice to the respondents and had also put them to notice that the matter would be heard finally and disposed of at the stage of admission, as the question involved in this first appeal is a short one.

2. The facts giving rise to the controversy in this first appeal are briefly stated as under:

The respondents are the minor children of one Shri Hargovind Chauwhan, who was allegedly murdered by the appellant and three others. The Succession Case bearing No. 13 of 2003 was filed by the respondent Nos. 1 and 2 through their next friend and Grandmother for grant of succession certificate. The State had registered an offence against the appellant-wife and three others for murdering her husband Hargovind, on 12-6-2002 at General Hospital, Bhandara. It is not in dispute that the Criminal prosecution for offences under Sections 452, 326 and 307 read with Section 34 of the Indian Penal Code was pending against the appellant and other co-accused before the Sessions Court at the time of filing of the Succession case. In view of pendency of the Criminal prosecution, it was stated on behalf of the respondents in the application for grant of succession certificate that the appellant-wife of Hargovind Chauwhan, who was also their mother, was disqualified from seeking succession certificate, in view of the provisions of Section 25 of the Hindu Succession Act. The Civil Judge, Senior Division, Bhandara, by judgment and order dated 1-10-2005 granted succession certificate in the name of the applicants i.e. Chetan and Priyanka and held that Sarita wd/o Hargovind Chauwhan was not entitled to grant of succession certificate, in view of the provisions of Section 25 of the Hindu Succession Act. The Court relied on the decisions reported in 1981 Mh.L.J. 659 : AIR 1982 Bombay 68 and AIR 1993 Allahabad 143 to record the finding that the widow was not entitled to grant of succession certificate as she had committed the murder of her husband. The judgment and order passed by the trial Court on 1-10-2005 is challenged in the instant first appeal.

3. Shri Muley, the learned Counsel for the appellant submitted that after passing of the impugned order dated 1-10-2005, by the judgment dated 21-12-2005 the Criminal Court has acquitted the appellant and other accused. Since, the Court found that there was no evidence worth the name to bring home the charge under Sections 452, 307 read with Section 34 of the Indian Penal Code against the accused Nos. 1, 2 and 3. It is necessary to mention that the appellant was accused No. 2 in the Criminal Prosecution. According to the learned Counsel for the appellant, in view of the clear acquittal of the appellant, it cannot be said that the appellant was not entitled to seek succession certificate in view of the provisions of Section 25 of the Hindu Succession Act. The counsel for the appellant relied on a decision reported in AIR 1977 Delhi 97 to substantiate the aforesaid submission.

4. Shri O.W. Gupta, learned Counsel for the respondents supported the judgment and order passed by the trial court. It is submitted on behalf of the respondents that on the date of passing of the order the appellant was not acquitted by the Criminal Court and therefore, the trial Court was clearly justified in holding that the appellant was not entitled to grant of succession certificate. The counsel for the respondents, however, did not dispute that the appellant was acquitted by the Criminal Court by the judgment dated 21-12-2005.

5. I have perused the record and also the judgment passed by the trial Court and after considering the submissions made on behalf of the parties, I feel that the following points arise for determination in this first appeal.

(i) Whether in the facts and circumstances of the case, the appellant-wife was disqualified from inheriting property of her deceased husband?

(ii) Whether the trial Court was justified in granting succession certificate only in favour of the respondents?

6. After considering the issues involved in the matter, it is necessary to consider the relevant provisions of Hindu Succession Act. Section 25 of the Hindu Succession Act : Murderer disqualified - A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered.

In the instant case, it is not in dispute that deceased-Hargovind Chauwhan was murdered on 12-6-2002 at General Hospital, Bhandara. It is also not in dispute that the criminal prosecution was launched by the State against the appellant, and others, under Sections 452, 326 and 307 read with Section 34 of the Indian Penal Code. At the relevant time, when the Civil Judge, Sr. Dn, decided the application under Section 372 of the Indian Succession Act, the criminal prosecution launched against the appellant and others was pending before the Criminal Court. After passing of the impugned order dated 1-10-2005, by a judgment dated 21-12-2005 the Additional Sessions Judge, Bhandara, acquitted the appellant as there was no evidence whatsoever to bring home the charge against the appellant under Sections 452, 307 read with Section 34 of the Indian Penal Code.

7. In view of the clear acquittal of the appellant, it cannot be said that the appellant is a person, who has committed a murder or has abetted the commission of murder of deceased Hargovind Chauwhan and was, therefore, disentitled or disqualified to succeed to the property of Hargovind under the provisions of Section 25 of the Hindu Succession Act. Since, the judgment of clear acquittal is passed in favour of the appellant, by no stretch of imagination it could be said that the appellant has committed the murder of Hargovind or abetted the commission of his murder. The appellant would, therefore, not be disqualified under the provisions of Section 25 of the Hindu Succession Act, from succeeding to the estate of her deceased husband. The judgment relied upon by the appellant and reported in AIR 1977 Delhi 97 squarely applies to the facts of this case.

8. For the reasons aforesaid, the impugned judgment passed by the Civil Judge, Senior Division, Bhandara, on 1-10-2005 is hereby modified by applying the provisions of Section 8 and 10 of the Hindu Succession Act 1956. The appellant and respondent Nos. 1 and 2 being class 1 heirs, would be entitled to seek equal share in the property left behind by deceased-Hargovind. The succession certificate be therefore, issued in the names of the appellant and respondent Nos. 1 and 2. The appellant and respondent Nos. 1 and 2 would be entitled to 1/3rd share each. Since, the parties were vehemently contesting the matter against each other in spite of their close relationship, it would be necessary in the interest of justice to issue the succession certificate in the name of respondent Nos. 1 and 2 through their guardian/next friend Smt. Chandrabhagabai and in the name of the appellant. It is needless to mention that in case, the parties have withdrawn certain amounts which are incorporated in the succession certificate, the shares of the parties would be adjusted after considering the withdrawals, if any.

9. The first appeal is allowed on the terms stated in the earlier paragraph. In the facts of the case, there would be no order as to costs.