Smt. Sudama Devi vs Smt. Malti Devi & Anr.
2011 Latest Caselaw 5633 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 22.11.2011

+      C.R.P. 75/2010

SMT. SUDAMA DEVI                          ...........Petitioner
                         Through:    Mr. Rajiv Duggal, Advocate.

                   Versus

SMT. MALTI DEVI & ANR.                    ..........Respondents
                   Through:          Mr. Parmod Kumar Singhal,
                                     Advocate for R-1.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?             Yes

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

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

22.04.2004 which had endorsed the finding of the Civil Judge

dated 22.10.2001 in proceedings under Section 372 of the Indian

Succession Act (ISA).

2. Record shows that Smt. Sudama Devi had filed a petition

under Section 372 of the ISA for grant of Succession Certificate in

respect of debts and securities of her deceased husband-Ram

Narain who claimed herself to the widow of the deceased;

contention was that the deceased had left behind his service

benefits i.e. gratuity, pension, G.P.F. and insurance etc. with his

employer i.e. Indian Agricultural Research Institute(IARI), Pusa,

New Delhi. Further contention was that the deceased had left

behind four sons and one daughter. Notice had been served upon

the sons and the daughter; they had filed their no objection for

grant of succession certificate in favour of the petitioner.

Objections were filed by one Malti Devi who claimed herself to be

the first wife and widow of the deceased; contention being that

Sudama Devi was not his legally wedded wife; further contention

being that Sudama Devi had in fact given up her rights for

claiming service benefits i.e. pension/gratuity vide her affidavit

dated 16.05.1991 which had been furnished before the IARI.

Contention of the objector was that the deceased Ram Narain and

Malti Devi had lived as husband and wife and her name had also

been entered in her ration card. Besides her ration card, Ex.

OW1/2 was the document exhibited by her which is of the year

1980 wherein Ram Narain even in his Department i.e. before his

employer had given the name of Malti Devi as his nominee and

described her as his wife; this document is an admitted document;

Ex. OW1/1 is the affidavit dated 16.05.1991 given by Sudama Devi

wherein she had given up her claim for pension/gratuity or any

other service benefits with the office of IARI relating to Ram

Narain. This document is also undisputed. This documentary

evidence alongwith oral testimony led before the Trial Court had

weighed in the mind of the court taking the balance in favour of

Malti Devi. The Trial Court had directed that the succession

certificate should be issued to Malti Devi; claim of Sudama Devi

for grant of succession certificate had been rejected.

3. This order was endorsed First Appellate Court vide the

impugned judgment dated 22.04.2004.

4. Vehement contention of the learned counsel for the

petitioner is that there are glaring discrepancies in the testimony

of Malti Devi and in fact in her cross-examination she had

admitted that Ram Narain was married to Sudama Devi; further

Sudama Devi had denied the suggestion that Ram Narain was

married with Malti Devi. Submission being that this evidence has

not been appreciated in the correct perspective by the two courts

below. Further contention of the learned counsel for the petitioner

is that he has filed an application under Section 151 of the Code of

Civil Procedure (hereinafter referred to as 'the Code') before this

court wherein he wishes to adduce certain additional evidence;

additional evidence being about the date of birth of the children of

Sudama Devi and Ram Narainn which show that the first child

born out of their wedlock was in the year 1952 which document

would show that Sudama Devi was in fact the wife of Ram Narain;

to the same effect is a document of the year 1966 i.e. the

electoral roll of District Darbanga which would show that Sudama

Devi is the wife of Ram Narain; these documents are as noted

(surpa) are of the year 1952-1966; present petition had been filed

under Section 372 of the ISA by the petitioner Sudama Devi in the

year 11.10.1993; these documents were admittedly in existence at

that time. Counsel for the petitioner further urges that this

application be treated as an application under Order 41 Rule 27

of the Code; even reading it as an application under the

aforenoted provision of law, the ingredients of Order 41 Rule 27

of the Code necessarily stipulate that for an additional evidence

to be led at the appellate stage, the applicant party must show

that in spite of due diligence the said documents could not be

produced; there is not a single whisper of this in the present

application which has been filed under Section 151 of the Code;

this application is without any merit; it is rejected.

5. The documentary evidence led and appreciated by the two

courts below does not suffer from any infirmity. Evidence led

before the two courts below has been weighed rightly in the scale

of balance and both the two fact finding courts in fact have

correctly held that it was Malti Devi who was the wife and widow

of Ram Narain; Sudama Devi also having given up her right for

claiming service benefits i.e. pension/gratuity and other service

benefits in view of her unchallenged affidavit; it does not now lie

in her mouth to claim the succession for the said effects in her

favour

6. Impugned judgment on no count suffers from any infirmity.

7. The Apex Court in AIR 1988 SC 1845 titled as Ratbir Kaur

and Anr. Vs. M/s. S. Chokosiry and Co. has held that the powers

of revisional court are circumscribed where there are two

concurrent findings of the court below in support of evidence on

record and in such a case revisional court must be reluctant to

embark upon an independent reassessment of the evidence and to

supplant a conclusion of its own, so long as the evidence on record

admitted and supported the one reached by the courts below. The

evidence of the two courts below was on a correct appreciation of

the oral and documentary evidence and calls for no interference.

8. Reliance placed by the learned counsel for the petitioner

upon the judgment reported in AIR 2000 SC 735 titled as

Rameshwari Devi vs. State of Bihar & Ors. is misplaced; this

judgment has only recognized the statutory provisions under

Section 16 of the Hindu Marriage Act which states children of a

void marriage are legitimate; in case a hindu male had died

intestate and the property left by him was to be divided between

children of the first and the second wife equally. In the instant

case, the children of the so called second wife i.e. Sudama Devi

are not in the picture; it is Sudama Devi who has filed the present

petition and is contesting this petition. The said facts are totally

distinct and have no application.

9. Petition is without any merit; it is dismissed.

INDERMEET KAUR, J NOVEMBER 22, 2011 rb