Shri Raj Nath vs State & Ors.
2009 Latest Caselaw 4254 Del

*      HIGH COURT OF DELHI : NEW DELHI

                     FAO No.231 of 2008

%              Judgment reserved on: 6th October, 2009

               Judgment delivered on: 22nd October, 2009

      Shri. Raj Nath,
      S/o. Late Shri. Babu Ram,
      R/o. H. No.249, Sun Light Colony-I,
      New Delhi-110014.
                                         ....Appellant

                    Through: Mr. M.S. Negi, Adv.

                   Versus

    1. State
       Govt. of NCT of Delhi.

    2. Shri Krishan Kumar,
       S/o. Late Shri Babu Ram,
       R/o. H. No.249, Sun Light Colony-I,
       New Delhi-110014.

    3. Ms. Raj Kumari,
       D/o. Late Shri Babu Ram,
       W/o. Shri Om Prakash,
       R/o. H. No.2/230, Dakshin Puri Extn.,
       New Delhi-110062.

    4. Ms. Geeta,
       D/o. Late Shri Babu Ram,
       W/o. Late Ram Kishan Hastoria,
       R/o. H. No. 6/371, Trilok Puri,
       Delhi-110091.

    5. Ms. Usha,
       D/o. Late Shri Babu Ram,




FAO 231/2008                                 Page 1 of 10
       W/o. Shri Chandan,
      R/o. H. No.496/1, Mahavir Block,
      Bhola Nath Nagar, Shahdara,
      Delhi-110032.

   6. Principal & Account Officer,
      Meera Bai Polytechnic,
      Maharani Bagh, New Delhi.

   7. Smt. Rajendra Kumari (Wife of Deceased),
      W/o. Late Raj Kumar

   8. Km. Meena (Minor) (Daughter of Deceased),
      D/o. Late Raj Kumar,
      Through her mother,
      Smt. Rajendra Kumari,

      Both R/o. H. No.249, Sun Light Colony-I,
      New Delhi-110014.                 ...Respondents

                Through: Nemo.

Coram:

HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes

V.B.Gupta, J.

Present appeal has been filed by appellant under

Section 384 of the Indian Succession Act against

judgment dated 11th April, 2008 passed by

Administrative Civil Judge in the Succession case.

Vide impugned judgment, petition filed by appellant

was dismissed.

2. Appellant filed the petition seeking debts and

securities of deceased Raj Kumar, who is stated to

have expired on 7th July, 2001. It is stated that

deceased left behind two brothers including appellant

and three sisters, who are respondents No.2 to 5.

3. The securities of deceased which are being

claimed in Succession, are his service dues from

Meerabai Polytechnic, Maharani Bagh, New Delhi,

where deceased was working as a sweeper.

4. Publication regarding filing of petition was

effected in the newspaper but none appeared from

general public to contest the case. Respondents No.2

to 5, filed „No Objections‟ in favour of appellant.

5. Trial court issued notice of the petition to the

Institute where deceased was employed. The said

Institute informed the court in writing that as per

office record of deceased, he has nominated his wife

Smt. Rajender Kumari and daughter Kumari Meena.

The department also furnished attested copy of the

nomination form which was filed by deceased in the

office, under his signatures in which Rajender Kumari

is shown as his wife and Kumari Meena is shown as his

daughter. This nomination had been filed by deceased

in July, 1989.

6. Afterwards, appellant impleaded wife and

daughter of deceased, as a party in this case and their

service was effected by publication in the newspaper,

but none appeared on their behalf and as such they

were proceeded ex-parte.

7. Notice of this appeal was issued to all the

respondents. Respondents No.2 to 5, who are the

brothers and sisters of the appellant appeared and

sought time to engage a counsel but later on none

appeared on their behalf.

8. Respondents No.7 and 8, who are the wife and

daughter of deceased, were served by publication in

the newspaper but they also did not appear. Vide

order dated 6th October, 2009, all the respondents

were proceeded ex-parte.

9. It is contended by learned counsel for appellant

that appellant has made statement on oath that

deceased was unmarried and had no issue. There is no

rebuttal to the statement. It is also contended that

nomination form of deceased was not countersigned by

the principal. Thus, nomination form was neither

authenticated nor countersigned and as such it creates

suspicion. Moreover, if deceased was married, till date

the said LRs have not approached the employer for

their legal dues nor have approached the court for any

succession certificate.

10. Since there is no class „I‟ Legal Representative of

the deceased, appellant being class „II‟ Legal

Representative and other Legal Representatives have

no objection in his favour, appellant is entitled to

receive dues lying with the Government.

11. In entire petition for grant of succession

certificate, appellant nowhere stated that deceased

was unmarried. In cross-examination, he stated that he

cannot admit or deny that deceased has nominated

namely Rajender Kumari as wife and Kumari Meena as

daughter and he also cannot admit and deny document

mark „A‟ which is nomination form.

12. Respondent-Government Department in its

written statement has stated that wife and daughter of

deceased Raj Kumar are only Legal Representative, as

per records available in the Department. The

deceased has nominated his wife and daughter in the

GPF form as available in the Department. Copy of the

nomination has been annexed with reply which has

been marked as „A‟. It is further stated that

nomination form of GPF has been duly signed by the

deceased.

13. In rejoinder filed by appellant, he nowhere

controverted these averments made by the

Department, that Rajender Kumari and Kumari Meena

are not the wife and daughter of the deceased.

Rejoinder is also silent about marital status of the

deceased.

14. Only plea taken by appellant is that nomination is

not authenticated, since it is not countersigned by the

principal. There is no rebuttal to this fact, that

nomination mark „A‟ is not signed by deceased Raj

Kumar. There is no law according to which nomination

form is required to be countersigned.

15. As per form of nomination, mark „A‟, Rajender

Kumari has been shown as wife of the deceased

whereas, Kumari Meena has been shown as daughter.

This nomination form was executed in the year 1989.

There could be no purpose for the Government

Department to fabricate this nomination form as they

have got no personal interest in this case. Admittedly,

appellant is class „II‟ Legal Representative as per the

Succession Act.

16. Section 9 of Hindu Succession Act, 1956, which is

relevant for disposal of this case reads as under;

"9. Order of succession among heirs in the Schedule- Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession."

17. Trial court in this regard observed;

"As discussed above, it is apparently clear that the deceased in his office disclosed that he was married to Smt. Rajender Kumari and that he had a daughter namely Kumari Meena. The deceased made them nominee in his office.

Sec.8 & 9 of Indian Succession Act provides that the assets of a male hindu who dies intestate shall devolve upon class-I legal heirs as mentioned in schedule of Hindu Succession Act. It further provides that class-I legal heir takes simultaneously and to the exclusion of other legal heirs in lower

category as mentioned in the Hindu Succession Act.

Admittedly, petitioner and respondent No.2 to 5 are brothers and sisters of deceased and they do not fall in class-I category. Till the time class-I heirs are alive, class-II heirs cannot claim any succession. Although, in this case wife and daughter of deceased are ex-parte, but till the time class-I legal heirs are alive only they are entitled to the succession of deceased exclusively. Although they are ex-parte but it cannot give rise to a presumption that class-I legal heirs have No Objection to the grant of succession in favour of the petitioner. These two class-I legal heirs could not be served in absence of their latest address. They have been served by way of publication as substituted service. It is not the case of the petitioner that they are not alive. Till the time class-I legal heirs are alive, petitioner falling in class-II category cannot claim any succession."

18. The nomination form Mark „A‟ is a sufficient proof

to show that deceased did have a wife and daughter

and the said nomination form has been duly signed by

the deceased, as early as in the year 189. There is no

allegation on behalf of appellant that this nomination

form is forged or fabricated.

19. In view of the clear and legal factual position, the

appellant is only class-II Legal Representative. Since

class-I Legal Representatives of the deceased, namely

his wife and daughter are there, appellant is not

entitled to inherit the estate of deceased. Thus, no

ambiguity can be found in the impugned judgment

passed by the trial court. The present appeal is not

maintainable and same is hereby dismissed.

20. No order as to costs.

21. Trial court record be sent back.

22nd October, 2009                     V.B.GUPTA, J.
rb