Chattisgarh High Court
Amarika Bai vs Amrit Bai on 7 July, 2021
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HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 20 of 2017
1. Amerika Bai W/o Dhram Das Khatri, Aged about 55 years R/o Village
Litiya, Tahsil Dhamdha, District Durg (C.G.).
2. Santosh Kumar S/o Late Dharamdas Khatri, aged about 33 years R/o
Village Litiya, Tahsil- Dhamdha, District Durg (C.G.).
3. Ku. Anant D/o Late Dharamdas Khatri, aged about 23 years R/oVillage
Litiya, Present address Village Nagpura, Tahsil & District Durg (C.G.)
---- Applicants
Versus
1. Amrit Bai W/o Dharamdas Khatri, Aged about 50 years R/o Village
Litiya, Present address Gadadih, Tahsil Dhamdha, District Durg (C.G.)
2. Block Education Officer, Dhamdha, Tahsil & District Durg (C.G.).
3. Smt. Geetabai W/o Kanhaiya, aged about 42 years R/o Village Sondh
Tahsil Berala, District Durg (C.G.).
---- Respondent
_____________________________________________________________
For Applicant s : Mr. Ravi Maheshwari, Advocate
For Non-applicant No.1 : Mr. R.K. Gomasta, Advocate
For Non-applicant No.2 : Mr. Alok Nigam, Govt. Advocate
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Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order On Board
07/07/2021
Heard.
1. This revision has been filed against the order dated 11/01/2017
passed by 6th Additional District Judge, Durg in Misc. Civil Appeal No.
A-29/2016.
2. Respondent No.1 filed an application under Section 372 of the Indian
Succession Act, 1925 praying for issuance of succession certificate in
her favour on account of death of her husband Dharamdas (henceforth
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'the Deceased'). The applicants were made party in that application
and it was pleaded that applicant No. 1 was not legally wedded wife of
the Deceased. This application was contested by the
applicants/respondents. The learned Court below passed the final
order on 23/07/2016 directing for issuance of succession certificate in
favour of respondent No.1 and the applicants jointly.
3. This order dated 23/07/2016 was challenged in the court of 6 th
Additional District Judge, Durg in Misc. Civil Appeal No. A-29/2016.
The appeal was partly allowed, in which it was held that applicant No.
1 is not legally wedded wife of the Deceased. The issuance of
succession certificate was also modified in which applicant No. 1 was
not granted any relief.
4. It is submitted by the counsel for the applicants that the Deceased had
previously married with someone, that was dissolved by a divorce.
Then he married with respondent No.1 in customary manner by
making her wear bangles. No child was born to respondent No.1.
Although it is claimed by respondent No. 1, that applicant No. 1 and
the Deceased never married each other, but the facts remains that
applicant No. 1 was always recognized as wife of the Deceased. The
document submitted before the Court below, shows that the Deceased
had nominated applicant No.1 for General/Contributory Provident
Fund. It is also submitted that respondent No. 1 in her statement
before the Court below admitted in cross-examination that applicant
No. 1 is wife of the Deceased. Therefore, the applicants had
entitlement to be declared as successor of the Deceased. The learned
Court below committed error in passing the impugned order, which
may be corrected by this Court in exercise of the power conferred
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under Article 227 of the Constitution of India.
5. Counsel for respondent No. 1 opposes the submissions and submits
that it is only respondent No. 1 who is legitimate wife of the Deceased.
There is no proof that applicant No. 1 and the Deceased ever married.
The learned Appellate Court has not committed any error in holding
that applicant No. 1 has no entitlement to be declared as successor of
the Deceased. On the other hand, applicant No. 2 who is son of
applicant No.1 and the Deceased, has been benefited with
compassionate appointment on account of death of the Deceased who
was a government servant. Relying on the judgment of M.P. High Court
in the case of Prabhat Kumar Gupta v. Smt. Meena Gupta, reported
in 1992 Vol- 1, M.P. Weekly Notes page 105, it is submitted that the
power of revisional Court under Section 388 (3) is not wide enough to
interfere with the finding of the facts properly arrived by the two courts
below. Therefore, this Court cannot interfere with the finding of the
Appellate Court. Hence, this revision is without any merit which may
be dismissed.
6. In reply, it is submitted by the counsel for the applicants that there is no
evidence present that respondent No.1 is legally wedded wife of the
Deceased. Applicant no. 1 has equal entitlement over the retiral
benefits of the Deceased, therefore, this petition be allowed.
7. Considered on the submissions.
8. Section 388(3) of the Indian Succession Act, 1925 provides that the
order of District Judge is subject to revision by the High Court. The
power of revision which is exercised by the High Court is clearly under
Section 115 of the Code of Civil Procedure. At the instance, the High
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Court may exercise the power of revision, if it finds the subordinate
Court have exercised a jurisdiction not vested in it by law, which is not
the case here; the Court below has failed to exercise its jurisdiction so
vested, which is also not the case here; and the Court below must
have acted in the exercise of its jurisdiction illegal or with material
irregularity, then the High Court may interfere by the revisionary power.
It is a case in which the finding has been given by the Appellate Court
on the basis of appreciation of facts, which was brought by the parties
though evidence. The law is clear that during the subsistence of a
marriage any of the spouse cannot remarry. The case of applicant No.
1 is of subsequent marriage. Thus, I am of the view that the finding of
the fact cannot be/should not be interfered in exercise of revisionary
power.
9. Consequently, this revision appears to be without any substance which
is dismissed.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
rahul
