Chattisgarh High Court

Reshma Khan vs Personnel Manager S.E.C.L on 12 August, 2021

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                                                                           NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                         Reserved for orders on :28/07/2021
                             Order passed on :12/08/2021
                            WP227 No. 1046 of 2018
      Reshma Khan W/o Late Jani Khan, Aged About 26 Years, R/o Bhatgaon
       Colliery, Ward No. 10, Near Maszid, Surajpur, District Surajpur
       Chhattisgarh Present Address: Kapoor Dafai, Chhota Bazar, Chirimiri,
       District Koriya Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh
                                                                   ---- Petitioner
                                     Versus
     1. Personnel Manager, S.E.C.L., Kalyani Sub-Area, Navapara Mines
        Bhatgaon, District Surajpur Chhattisgarh, District : Surajpur,
        Chhattisgarh
     2. Branch Manager, Indian Life Insurance Corporation, Branch Surajpur,
        District Surajpur, District : Surajpur, Chhattisgarh
     3. Rasida Bibi @ Ulekha, W/o Harun Khan, Aged About 55 Years, R/o
        Bhatgaon, P.S. Bhatgaon, District Surajpur Chhattisgarh., District :
        Surajpur, Chhattisgarh
     4. Safi Ahmad Khan @ Chintu, S/o Late Harun Khan, Aged About 24
        Years, R/o Bhatgaon, District Surajpur, District : Surajpur, Chhattisgarh
     5. Rafi Ahmad Khan @ Mintu, S/o Late Harun Khan, Aged About 24 Years,
        R/o Bhatgaon, District Surajpur, Chhattisgarh, District : Surajpur,
        Chhattisgarh
     6. Regional Commissioner, Provident Fund Office, Gupteshwar, Jabalpur
        (Madhya Pradesh), District : Jabalpur, Madhya Pradesh
     7. Gulshan Aara, D/o Late Harun Khan, Aged About 33 Years, Present
        Address Bartunga Colony, Bartunga Hill, Chirimiri Colliery, District
        Koriya Chhattisgarh, District : Koriya (Baikunthpur), Chhattisgarh
                                                               ---- Respondents

For Petitioner - Ms. Meena Shastri, Advocate.

For Respondent No.1 - Mr. Sudhir Kumar Bajpai, Advocate. For Respondent No.2 - Mr. Mukesh Sharma, Advocate.

For Respondent No.3, 4, 5 and 7- Mr. Surfaraj Khan, Advocate. For Respondent No.6 - Mr. R.R. Sinha, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 12-08-2021

Heard.

1. This petition has been brought challenging the order in Succession civil

appeal No.4A/2017 dated 24-09-2018 by which the appeal filed by the

petitioner was partly allowed. The order of the Court of Civil Judge Class I

Surajpur in Succession Case No.4/2011 dated 30-11-2016 was set aside and

the case was remanded to the Court below with directions.

2. The petitioner had filed a Succession Case No.4/2011, pleading that she

was married wife of deceased Jani Khan who was employee in the SECL.

Therefore, she prayed for grant of succession certificate to receive the benefits

from the department under which the deceased was employed. The private

respondents contested this application and submitted that the petitioner was

divorced by Jani Khan and on the basis of nomination in favour of the private

respondents they opposed the application for grant of succession certificate.

Learned Civil Judge Class-I Surajpur passed the order dated 30-11-2016 and

dismissed the application of the petitioner. The petitioner then preferred the

appeal before the Court of District Judge which was registered as Civil Appeal

No.4A/2017. The appellate Court has by the impugned order set aside the

order of the Civil Judge Class-I directing the Court below to frame the issue on

the pleading of divorce of the petitioner by the private respondents, make an

enquiry and pass order in accordance with law.

3. Learned counsel for the petitioner submits that learned appellate Court

has in a manner granted liberty to the private respondents to collect evidence

in their favour. The question of the divorce could not have been dealt and

decided in a succession case. The claim of the respondents that they are

nominee and successor of deceased Jani Khan does not give them any

entitlement over the service benefits of the deceased. They shall be regarded

only as the custodian of the same. Reliance has been placed on the judgment

of this Court in Chhotu Dewangan and another vs Smt. Urmilabai and

others, 2007 (1) C.G.L.J. 56. It is submitted that proceeding under Section 372

of the Indian Succession Act, 1925 (in short 'the Act, 1925') is summery

proceeding. For declaration of right of the nominee, a civil suit was required to

be filed. Therefore, issuance of succession certificate in favour of petitioner

should have been ordered.

Reliance has also been placed on the judgment of Hon'ble the Supreme

Court in the matter of Smt. Sarbati v. Usha Devi, AIR 1984 SC 346, in which it

was held that bare nomination in favour of a person does not confer any

beneficial interest with respect to the amount payable under life insurance

policy on the death of the insured. The amount so received can be claimed by

the heirs of the assured in accordance with law of succession.

Reliance has also been placed upon the judgment of Hon'ble the

Supreme Court in the matter of Kattukandi Edathil Krishnan and another

Vs. Kattukandi Edathil Valasan and others, (2006) 9 SCC 166 on the point

of remand of case granting opportunities to the parties to make additional

pleadings and adduce additional evidence was whether a necessity, should be

considered.

It is submitted that the impugned order is not sustainable. The petitioner

has entitlement for grant of succession certificate in her favour. Therefore, the

impugned order be set aside and the petitioner be granted succession

certificate.

4. Learned counsel for the respondents No.1 and 2 made formal objection

and it is submitted that they shall comply with the order passed by this Court.

5. Learned counsel for the respondents No.3, 4, 5 and 7 opposed the

submissions made by the petitioner counsel and submits that the proceeding

under Section 372 of the Indian Succession Act is summery proceeding. The

Court cannot determine the entitlement of a party in such a proceeding except

for the party being a successor in accordance with the provisions under the

Indian Succession Act. It is clear that the petitioner is not a nominee in the

service record of deceased Jani Khan, therefore, no error has been committed

by the Court of Civil Judge Class-I in rejecting the application of the petitioner.

The question of maintainability of this petition is also raised on the ground that

Under Section 388 of the Act, 1925 clearly provides that a civil revision shall be

maintainable against the order passed by the District Judge in appeal.

Reliance has been placed on the judgment of the Division Bench of

Calcutta High Court in the matter of Gita Das and another Vs. Sefali Lata

Das, AIR 2018 CALCUTTA 80, in which it has been held that such an order

which is passed in appeal by the District Judge is revisable under Section 388

of the Act, 1925. Therefore, the present petition filed is not maintainable which

may be dismissed.

6. In reply it is submitted by learned counsel for the petitioner that there is

no specific provision under the Act, 1925 for preferring revision against the

appellate order passed under Section 384 of the Act, 1925, therefore, the

petition under Article 227 of the Constitution of India is maintainable.

7. Heard learned counsel for the parties and perused the documents.

8. The question of maintainability of this petition has to be decided first.

Sub-section 2 and 3 of Section 388 of the Indian Succession Act, 1925 are

relevant which are as under:-

"384. Appeal.--

(1) xxxxxx xxxxxx (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908). (3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final."

9. According to the provision mentioned herein the District Judge has

exercised the power of appellate authority. Therefore, according to Sub-section

3 of Section 388 of the Act, 1925, the order passed by District Judge was

subject to provision as to reference or revision before the High Court.

Subsequent to which, the order would be regarded as final. This provision

clearly provides for filing of revision petition. The reliance of the petitioner in

Chhotu Dewangan and another vs Smt. Urmilabai and others (supra) is

also a decision on civil revision, before the High Court. As for the reason that

there is statutory remedy available to the petitioner by way of filing a revision

petition against the impugned order, this petition under Article 227 of the

Constitution of India cannot be regarded as maintainable. Hence, this petition is

dismissed and disposed off on the ground that it is not maintainable under