Gauhati High Court
Appellant vs Smt. Rupali Barglary on 16 August, 2024
GAHC010160212019
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Testamentary Appeal No. 3/2022
SMT. PRATIMA DUTTA
W/O- LATE HARKANTA DUTTA,
R/O- VILL.- BALIKARIA, P.O. BALIKARIA,
P.S. NALBARI, DIST.- NALBARI,
ASSAM, PIN- 781335.
......Appellant.
VERSUS
SMT. RUPALI BARGLARY
R/O- DIPHU NEAR ITI, P.O. AND P.S. DIPHU,
DIST.- KARBI ANGLONG,
ASSAM AND OFFICE ADDRESS FOR SERVICE NOTICE- C/O- EXECUTIVE
ENGINEER, PUBLIC HEALTH ENGINEERING DEPARTMENT, DIPHU RURAL
W/S DIVISION, DIPHU, ASSAM, PIN- 782460
......Respondent.
Advocate for the Appellant : Mr. D. Choudhury
Advocate for the Respondent : Mr. B.P. Borah.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Date of Hearing : 13.08.2024
Date of Judgment : 16th August, 2024
JUDGMENT AND ORDER
Heard Mr. D. Choudhury, learned counsel for the appellant and Mr.
B.P. Borah, learned counsel for the respondent.
2. This appeal under Section 384 of the Indian Succession Act, 1925,
is directed against the order dated 02.03.2012 passed in Succession
Certificate No.47/2011 and the order dated 23.04.2012 for granting
extended certificate in Succession Certificate No.47/2011 issued by the
Deputy Commissioner, Karbi Anglong, Diphu. It is to be noted here that
vide impugned order dated 02.03.2012 passed in Succession Certificate
No.47/2011, the Deputy Commissioner, Karbi Anglong, Diphu, has
granted Succession Certificate in favour of the respondent of this appeal
and vide order dated 23.04.2012, the Deputy Commissioner, Karbi
Anglong, Diphu, has issued extended succession certificate in respect of
the following dues of her deceased husband:
(i) GIS - Rs.4,560/-
(ii) Leave Salary - Rs.1,04,454/-
(iii) D.C.R.G. - Rs.1,23,970/-
3. The background facts, leading to filing of the present appeal, is
adumbrated herein below:-
"The appellant Smt. Pratima Dutta is the wife of late Hara Kanta
Dutta, who was serving in the office of the Executive Engineer,
Public Health Engineering (PHE) Department, Diphu Rural W/S
Division, Diphu. He died intestate and after his death on
14.10.2011, the respondent herein Smt. Rupali Baglary Dutta filed
a petition for granting succession certificate before the Deputy
Commissioner, Karbi Anglong, Diphu, for GIS amounting to
Rs.2,00,000/- of her deceased husband. Upon the said petition, the
Deputy Commissioner, Karbi Anglong, Diphu, has registered a case,
being Succession Certificate No.47/2011 and thereafter, vide
impugned orders dated 02.03.2012 and 23.04.2012 had granted
succession certificate in respect of GIS for Rs.4,560/-, Leave Salary
for Rs.1,04,454 and DCRG for Rs.1,23,970/-."
4. Being aggrieved, the present appellant, who happens to be the first
wife of late Hara Kanta Dutta, preferred this appeal, on the following
grounds:-
(i) That, the succession certificate was granted under Section
372 of the Indian Succession Act, 1925, without application
of mind.
(ii) That the respondent (applicant) suppressed the material fact
that the deceased was the husband of the appellant and his
property is situated at village Balikaria of Nalbari district and
committed fraud in seeking succession certificate, being not
legally married wife.
(iii) That the respondent made false statement in paragraph 4 of
the application that there is no other legal relatives of late
Hara Kanta Dutta except her and she was getting
maintenance under Section 125 of the Code of Criminal
Procedure as per order dated 18.12.1992 passed in Misc.
Case No.72m/1991.
(iv) That the respondent has suppressed the material fact that
she was not legally married wife of the deceased and she has
no right over the pension and other retirement benefits in
view of Assam Services Pension Rules, 1963 or under Hindu
Marriage Act and Hindu Succession Act.
(v) That, no notice was issued to the original place of the
deceased where he had his property and where he ordinarily
too resided with his wife.
(vi) That the present appellant was not made a party in the
proceeding for granting succession certificate and the order
was passed without hearing the appellant, though she is
legally married wife and Class-I heir of the deceased.
5. Mr. Choudhury, learned counsel for the appellant, submits that the
Succession Certificate No.47/2011 was obtained by practicing fraud and
that the appellant, being the first wife, is entitled to the pensionary dues
of late Hara Kanta Dutta and that the appellant has never made a party
in the Succession Certificate and no notice was issued to her and the
respondent suppressed that she is not the legally wedded wife and as
such, in view of the provisions of Section 383 of the Indian Succession
Act, the succession certificate so issued is required to be revoked and the
impugned orders are liable to be set aside and quashed. Referring to
following decisions Mr. Choudhury submits that only the legally married
first wife is entitled to pensionary benefits of her deceased husband who
died intestate. Mr. Choudhury has referred the following decisions in
support of his submission:-
(i) Bulu Das and Ors. vs. Moni Das and Anr reported
in 2003(3) GLT 400,
(ii) Nandita Shiland Anr vs. State of Tripura,
reported in 2009(3) GLT 153
(iii) G.L. Bhatia vs. Union of India 1999(9) Supreme
308.
6. Per contra, Mr. B.P. Borah, learned counsel for the respondent,
submits that the respondent was not aware of the fact that the appellant
is the first wife of late Hara Kanta Dutta and that the succession
certificate, which was prayed for in respect of the dues of late Hara Kanta
Dutta, was lying in the office of the Executive Engineer, Public Health
Engineering Department, Diphu and as such, the petition was filed before
the Deputy Commissioner, Karbi Anglong, Diphu and there is no
suppression of fact or practicing fraud as it was not in her knowledge that
the appellant is the first wife of late Hara Kanta Dutta and the grounds
mentioned in the appeal are not maintainable and therefore, Mr. Borah
has contended to dismiss the appeal.
7. To a pointed query of this Court, Mr. Borah fairly submits that no
notice was issued to the appellant and who was also not made a party in
the petition filed by the respondent before the Deputy Commissioner,
Karbi Anglong, Diphu.
8. Having heard the submission of learned Advocates of both sides, I
have carefully gone through the appeal as well as the grounds mentioned
therein and the documents placed on record and also gone through the
relevant provision of law.
9. It appears that succession certificate was applied for under Section
372 of the Indian Succession Act by the respondent. A bare perusal of
the section reveals that Sub-section 1(c) requires that the applicant has
to furnish the particulars of the family or near relatives of the deceased
and their respective residence. Sub-section 1(d) requires that particulars
of the right in which the petitioner claims. However, on perusal of the
petition filed by the respondent seeking succession certificate reveals that
the aforementioned requirements have not been complied with. The
appellant herein was not made a party and no notice was also issued to
her and her sons. Though Mr. Borah submits that it was not in the
knowledge of the respondent that the present appellant is the first wife of
the deceased Hara Kanta Dutta, yet, the same left this Court
unimpressed.
10. It is to be noted here that Section 383 of the Indian Succession Act
provides for revocation of certificates, which states that a certificate
granted under this part may be revoked for any of the following causes,
namely:-
(a) that the proceedings to obtain the certificate were defective
in substance;
(b) that the certificate was obtained fraudulently by making a
false suggestion, or by concealment from the Court of
something material to the case;
(c) that the certificate was obtained by means of untrue
allegation of a fact essential in point of law to justify the
grant thereof, though such allegation was made in ignorance
or inadvertently;
(d) that the certificate has become useless and inoperative
through circumstances;
(e) that a decree or order made by a competent Court in a suit
or other proceeding with respect to effects comprising debts
or securities specified in the certificate renders it proper that
the certificate should be revoked.
11. In the case in hand, having considered the submission of learned
Advocates of both sides and also considering the materials placed on
record i.e. the impugned orders dated 02.03.2012 and 23.04.2012, the
Successeion Certificate and Extended Succession Certificate, and the
statement and averment made in the appeal memo, this Court finds that
the proceeding to obtain the succession certificate instituted before the
Deputy Commissioner, Karbi Anglong, Diphu, is defective. The appellant
herein, who is the first wife of late Hara Kanta Dutta and Class-I heir, was
not made a party and no notice was issued to her. Besides, the certificate
was obtained fraudulently as her legal status was not projected truly. She
is not the first wife of the deceased Hara Kanta Dutta, rather she is the
third wife. Further, the averments made in the petition, that she is the
only legal heir of the deceased Hara Kanta Dutta are fake. Indisputably,
she is the third wife of deceased hara Kanta Dutta.
12. It is to be noted here that Hon'ble Supreme Court in the case of
Rameshwari Devi v. State of Bihar, reported in AIR 2000 SC
735, while dealing with the property of a male Hindu, dying intestate, has
held thus :
"It cannot be disputed that the marriage between
Narain Lal and Yogmaya Devi was in contravention of
Clause (i) of Section 5 of the Hindu Marriage Act and
was a void marriage. Under Section 16 of this Act,
children of void marriage are legitimate. Under the
Hindu Succession Act, 1956, property of a male Hindu
dying intestate devolve firstly on heirs in Clause
(i) which include widow and son. Among the widow and
son, they all get shares (see Sections 8, 10 and
the Schedule to the Hindu Succession Act, 1956).
Yogmaya Devi cannot be described as a widow of Narain
Lal, her marriage with Narain Lal being void."
(Emphasis is added)
13. Thus, the appellant herein has successfully demonstrated existence
of at least three grounds, as mentioned in Section 383, for revocation of
the aforementioned succession certificates. Further, the impugned orders
so passed by the Deputy Commissioner, Karbi Anglong, Diphu, are not
sustainable in view of the fact that the same was passed in contravention
of the provisions of law and pursuant to false statement and averment
made in the petition, and thereby failed to withstand the legal scrutiny.
14. I have carefully gone through the decisions referred by Mr.
Chaudhury, the learned counsel for the appellant and I find that in the
said decisions the issue of family pension of the deceased husband/wife,
who died intestate, was dealt with. In the instant appeal the same is not
the issue. Therefore, the decision referred by Md. Choudhury would not
come into his assistance.
15. In the result, this Court finds that this appeal succeeds and
accordingly, the same stands allowed. The impugned orders dated
02.03.2012 and 23.04.2012 are set aside and quashed and consequent
upon the Succession Certificates, issued vide aforesaid orders, stands
revoked.
16. In terms of above this appeal stands disposed of. The parties have
to bear their own costs.
Sd/- Robin Phukan
JUDGE
Comparing Assistant
