Gauhati High Court
Smt. Jyoti Kalita vs Smt. Guneswari Borah on 22 October, 2025
GAHC010151652024
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Intest.Cas. No. 4/2024
Smt. Jyoti Kalita,
W/o Late Subal Borah,
D/o Late Rabi Ram Kalita,
Resident of Village-Dhing Athagaon,
PO & PS-Dhing, Nagaon,
Dist.-Nagaon, Assam, Pin-782123. ......Appellant.
VERSUS
1. Smt. Guneswari Borah,
W/o Late Mohan Chandra Bora,
Mother of Late Subal Borah,
Resident of Village-Dhing Athagaon,
PO & PS-Dhing, Nagaon, Dist.-Nagaon,
Assam, Pin-782123.
2. Smt. Lipika Borah,
D/o Late Subal Borah,
Resident of Village-Dhing Athagaon,
PO & PS-Dhing, Nagaon, Dist.-Nagaon,
Assam, Pin-782123.
3. Smt. Dipsikha Borah,
D/o Late Subal Borah,
Resident of Village-Dhing Athagaon,
PO & PS-Dhing, Nagaon, Dist.-Nagaon,
Assam, Pin-782123. ......Respondents.
Page 1 of 24
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
For the Appellant : Mr. A. Biswas. ......Advocate.
For the Respondents : Mr. S. Borthakur,
Mr. R. Sensua. ......Advocates.
Dates of Hearing : 24.07.2025, 21.08.2025 &
04.09.2025
Date of Judgment : 22.10.2025
JUDGMENT AND ORDER (CAV)
Heard Mr. A. Biswas, learned counsel for the appellant and
also heard Mr. R. Sensua, learned counsel for the respondents.
2. In this Intest.Cas. No.4/2024, filed under Section 384 of the
Indian Succession Act, 1925, the appellant has challenged the
judgment and order dated 30.04.2024, passed by the learned
Additional District Judge No.3, Nagaon, in Misc. (Succession) Case
No.22/2019. It is to be noted here that vide impugned judgment and
order dated 30.04.2024, the learned Additional District Judge has
directed to issue a joint succession certificate in favour of the
respondents/petitioners and the appellant/opposite party in respect of
the debts and securities left behind by the deceased Subal Borah as
described in the Schedule to the petition on payment of due court fees
and on execution of an indemnity bond by the respondents/petitioners.
Page 2 of 24
3. The background facts, leading to filing of the present appeal
are briefly stated as under:-
"Late Subal Borah, son of the respondent/petitioner No.1
Smt. Guneswari Borah and father of respondent/petitioner
Nos.2 and 3 Smt. Lipika Borah and Dipsikha Borah, during his
lifetime was working as Nayak in Assam Special Reserve
Force under the Government of Assam. He died on
02.07.2018 leaving behind the respondents/petitioners as his
legal heirs. The mother of respondent/petitioner Nos.2 and 3
and the wife of Late Subal Borah died on 28.10.2006. At the
time of death of the mother of respondent/petitioner Nos.2
and 3, the respondent/petitioner No.3 was a minor and to
take care of her, Subal Borah kept the appellant/opposite
party in his house and the appellant instead of taking care of
the minor, had manufactured some documents and
photographs and inserted her name in some documents as
second wife of Subal Borah, though there was no relationship
of husband and wife between Subal Borah and the appellant.
At the time of his death, Subal Borah left certain debts and
securities in the office of the Commandant, Assam Special
Reserve Force Bn.II, Karagaon, Karbi Anglong, Assam, under
the beneficiary scheme. Therefore, the respondents had filed
a petition for granting succession certificate in respect of the
debts and securities left behind by deceased Subal Borah for
a sum of Rs.14,34,319/-. Subal Borah died intestate without
making any Will and no letters of administration or probate
Page 3 of 24
application is pending in respect of the estate of deceased
Subal Borah and there is no impediment in granting
succession certificate under the Indian Succession Act.
Under the said application, the learned Additional
District Judge No.3, Nagaon, vide order dated 10.04.2019,
had issued special and general notices to all concerned and
pursuant to the notices issued on 10.04.2019, the
appellant/opposite party entered appearance and contested
the application by filing written objection, wherein it is
contended that there is no cause of action and the petition is
not maintainable and that Subal Borah married the
appellant/opposite party as per Hindu religious rites and
rituals and till his death, the appellant lived with him. The
appellant denied the allegation of manufacturing false
document and that Subal Borah after the death of his wife
Bharati Borah, married the appellant on 15.10.2007 and she
lived with Subal Borah and the respondents/petitioners and
that Lipika Borah, the respondent No.2, got married in 2010
and the appellant claimed that she is entitled to a share over
the debts and securities left by the deceased and under such
circumstances, she contended to dismiss the application.
Thereafter, the learned Additional District Judge No.3,
Nagaon (Trial Court, for short), examined the
respondent/petitioner No.2 Lipika Borah and the
respondent/petitioner No.3 Dipsikha Borah as PWs-1 and 2,
respectively and one Malamoni Borah as PW-3. The
appellant/opposite party also examined herself as DW-1 and
Page 4 of 24
one Deben Hazarika as DW-2 and one Sonaram Hazarika as
DW-3 and thereafter, hearing the learned counsel for both
the parties and considering the evidence on record and
relying upon a decision of Hon'ble Supreme Court in the case
of Vidhyadhari & Ors. v. Sukhrana Bai & Ors.,
reported in (2008) 2 SCC 238, has disposed of the
application by holding that the respondents/petitioners and
the appellant/opposite party each are entitled to succeed to
proportionate share in respect of debts and securities set
forth in the Schedule to the petition and thereafter, directed
to issue joint succession certificate in favour of the
respondents/petitioners and the appellant/opposite party in
respect of the debts and securities left behind by Late Subal
Borah as prescribed in the Schedule to the petition."
4. Being aggrieved, the appellant/opposite party Smt. Jyoti Kalita
preferred the present appeal under Section 384 of the Indian
Succession Act challenging the impugned judgment and order on the
following grounds:-
(i) That the learned Trial Court erred in law in directing issuance
of joint succession certificate in favour of the appellant along
with the respondents in respect of the debts and securities
left behind by deceased Subal Borah, which is nothing but
the service benefits of him and on such count, the impugned
judgment and order dated 30.04.2024, is liable to be set
aside and quashed.
Page 5 of 24
(ii) In view of the interpretation of the provision of Section 372 of
the Indian Succession Act, it is settled position of law that
joint succession certificate cannot be directed to be issued in
favour of rival parties to a proceeding under Section 372 of
the Indian Succession Act and having done so, have vitiated
the entire process and consequently, the impugned judgment
and order dated 30.04.2024, is liable to be set aside and
quashed.
(iii) That the learned Trial Court has seriously erred in law and in
facts in allowing the application filed by the respondents
herein for seeking succession certificate in connection with all
the service benefits of the deceased Subal Borah, as the
service benefits of the deceased can by no stretch of
imagination can be construed to be the debts and securities
of the deceased, as the deceased employee does not have
any title over the family pension as because the family
pension of a deceased employee undoubtedly is not part of
the estate of the deceased employee and consequently the
same cannot be made a subject matter under the Indian
Succession Act, 1925, rather the same would always be
regulated by the pension rules which confer a statutory right
upon the beneficiary eligible to the same and on such count,
the impugned judgment and order dated 30.04.2024 is liable
to be set aside.
(iv) That the learned Trial Court seriously erred in law as well as in
facts in directing the issuance of a joint succession certificate
in favour of the respondents and the appellant herein in spite
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of arriving at a specific finding that the appellant herein is the
legally married wife of Late Subal Borah and also by holding
that nothing will disqualify her from succeeding to the estate
of her late husband and it is well settled proposition of law
that claim for a succession certificate cannot be granted to
anyone other than the wife of the deceased employee if she
is alive and on such count, the impugned judgment and
order dated 30.04.2024 is liable to be set aside and quashed.
(v) That the learned Trial Court has overlooked that the law
governing grant of family pension and other service benefits
to the deceased is governed by Assam Service (Pension)
Rules, 1969 and on such count, the impugned judgment and
order dated 30.04.2024 is liable to be set aside and quashed.
(vi) That the learned Trial Court allowed the issuance of joint
succession certificate in respect of the mother of the
deceased as well as married daughter of the deceased in
total contravention of the law governing grant of family
pension and other service benefits of a deceased government
servant has completely vitiated the entire proceeding.
(vii) That grant of joint succession certificate in respect of family
pension and other service benefits of the deceased in the
name of the mother of the deceased is totally contrary to the
provision of the Hindu Succession Act, 1956 in as much as
under the provision of the said statute, the mother is not
considered as First Class Heir of a deceased Hindu along with
his daughters, both married and unmarried, especially when
Page 7 of 24
his wife is alive, as in the instant case and on such count, the
impugned judgment and order dated 30.04.2024, is liable to
be interfered with.
5. Mr. Biswas, learned counsel for the appellant submits that the
Court cannot grant succession certificate in respect of pensionary
benefit of the deceased employee and that the grant of pension and
pensionary benefit is governed by the relevant pension rule and that
the mother and married daughters are excluded from getting the
pension and pensionary benefit of the deceased employee. Further, Mr.
Biswas submits that only one succession certificate can be issued in
respect of the debts and securities left behind by the deceased
employee and that the learned Trial Court by granting joint succession
certificate that to in respect of pension and pensionary benefits
transgressed into the jurisdiction which is not conferred upon the
learned Court and under such circumstances, Mr. Biswas has
contended to allow this appeal by setting aside the impugned
judgment and order dated 30.04.2024.
5.1 In support of his submission, Mr. Biswas has referred to the
following decisions:-
(i) Nitu v. Sheela Rani & Ors., reported in (2016) 16 SCC 229;
(ii) Uttar Pradesh Roadways Retired Officials and
Officers Association v. State of U.P. & Anr.,
reported in (2024) 9 SCC 331;
(iii) Lonachand Gangaram Marwadi v. Uttamckand Gangaram
Marwadi, reported in MANU/MH/0021/1891;
(iv) Rosy Joseph v. District Transport Officer, reported
in 2016 Supreme(Online)(KER) 44796;
Page 8 of 24
(v) Mustt. Zubeda Ahmed v. Mustt. Fazlia Begum, reported
in 2015 (4) GLR 571;
(vi) Deokinandan Prasad v. The State of Bihar & Ors.,
reported in (1971) 2 SCC 330;
(vii) Madan Mohan v. Ramdial & Ors., reported in
MANU/UP/0090/1882;
(viii) Jamnabai v. Hastubai, reported in MANU/MH/0075/1886.
6. Per contra, Mr. Sensua, learned counsel for the
respondents/petitioners submits that the learned Trial Court has not
committed any illegality in granting the joint succession certificate in
respect of the appellant and the respondents jointly and there is no bar
in granting such succession certificate jointly. However, Mr. Sensua
fairly submits that succession certificate cannot be issued in respect of
the pension and pensionary benefits, but the same can be issued in
respect of the debts and securities left behind by the deceased
employee and as such, the impugned judgment and order may be
modified so far it relates to the grant of pensionary benefit is
concerned and remaining part of the judgment and order may be
upheld. In support of his submission, Mr. Sensua has referred the
following decisions:-
(i) Ritinbhai Dilsukhbhai Baxi v. Bidhin Manharbhai Baxi,
reported in 2012 SCC OnLine Guj 6161;
(ii) Dulia Devi v. Dulia Devi, reported in
MANU/UP/0659/2001;
(iii) Arikala Narasa Reddy v. Venkata Ram Reddy
Reddygari & Ors., reported in MANU/SC/0079/2014;
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(iv) Smt. Violet Issaac & Ors. v. Union of India & Ors.,
reported in (1991) 1 SCC 725.
7. In reply to the submission of Mr. Sensua, Mr. Biswas, learned
counsel for the appellant/opposite party submits that succession
certificate cannot be issued in respect of the service benefit of the
deceased employee. Mr. Biswas also submits that one of the daughters
of the deceased employee already got married and an application filed
by a married daughter is not maintainable and under such
circumstances, Mr. Biswas has contended to allow this appeal.
8. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeal and the
grounds mentioned therein and also gone through the decisions so
referred by learned counsel for both the parties.
9. The basic facts here in this appeal are not in dispute. The
respondents/petitioners are mother and daughters of the deceased
employee and the appellant/opposite party is the second wife of the
deceased employee. The respondents have filed the petition under
Section 372 of the Indian Succession Act for grant of succession
certificate in respect of the debts and securities left behind by the
deceased Subal Borah, who was serving as Nayak in the office of the
Commandant, Assam Special Reserve Force BN.II, Karagaon, Karbi
Anglong, and in the schedule it has been mentioned that following
debts and securities lying in the name of deceased Subal Borah:
(i) Leave encashment - Rs.3,65,874/-
(ii) GIS coverage benefit - Rs.2,00,000/-
Page 10 of 24
(iii) GIS accumulated value of savings - Rs.60,467/-
(iv) Family pension - Rs.36,000/-
(v) Gratuity - Rs.4,50,000/-
(vi) GPF - Rs.3,21,978/-
All Total - Rs.14,34,319/-
Finding of the Trial Court:-
10. The learned trial Court, after hearing learned counsel for both
the parties and also considering the evidence, so brought on record
and relying upon a decision of Hon'ble Supreme Court in Vidhyadhari
and others vs. Sukhrana Bai and Others as reported in (2008)
2 SCC 238, arrived at finding as under:-
17. The wife along with son, daughter and mother are
Class I heirs under the Hindu Succession Act.
Since attempt has been made to disqualify the
O.P. on the ground that she was never married to
Subal Borah but the same falls flat in view of
Exhibit 4.
18. Therefore, when it becomes clear that the O.P. is
the wife of Late Subal Borah, nothing will
disqualify her from succeeding to the estate of
her late husband and she is entitled to succeed
to her proportionate share of her deceased
husband. It is not necessary to drive parties to
some other forum because the necessary parties
are before this Court. As held by the Hon'ble -
Supreme Court in Vidhyadhari and others v.
Sukhrana Bai and Others as reported in (2008) 2
SCC 238, this Court can itself declare the rights
of the parties with the proportionate share to
Page 11 of 24
each of them so as to succeed to the estate of
Late Subal Borah.
19. Accordingly, I am of considered opinion that as
the petitioners and the O.P. are the Class I
legal heirs of the deceased Subal Borah,
therefore, I do not find any impediment in
granting the Succession Certificate as prayed for
in favour of the petitioners. There is also
nothing in the case-record to show any legal
impediment u/s 370 of the Act in granting
Succession Certificate in favour of the
petitioners with a rider that the petitioners and
the O.P. each are entitled to succeed to
proportionate share in respect of the debts and
securities set forth in the Schedule to the
petition.
20. Issue a joint Succession Certificate in favour of
the petitioners no. 1 to 3 and the O.P. in
respect of the debt and securities left behind by
deceased Late Subal Borah as described in the
Schedule to the petition on payment of due Court
Fees and on execution of an indemnity bond by
petitioners for the amount of certificate for due
distribution of the amount to the Ο.Ρ.
10.1 In view of the rival submissions advanced by the learned
counsel for both the parties and the grounds so taken in this appeal,
the issues, to be addressed by this Court are:-
(i) Whether the joint succession certificate can be
issued in respect of the debts and securities left
behind by the deceased employee?
Page 12 of 24
(ii) Whether a married daughter is entitled to her
share of debt and securities left behind by her
deceased father?
(iii) Whether succession certificate can be issued in
respect of family pension?
Issue No.I:-
11. This Court has considered the rival submissions of learned
counsel for both the parties and also gone through the decisions
referred by them. It appears that there are conflicting decisions in
respect of issuance of joint succession certificate by the Courts. Some
of the High Courts' held that joint succession certificate cannot be
issued in respect of debts and securities left behind by the deceased
employee. Reference in this context can be made to the decisions
referred by Mr. Biswas, learned counsel for the appellant in Madan
Mohan (supra), Lonachand Gangaram Marwadi (supra) and
Jamnabai (supra).
11.1 On the other hand, some of the High Courts' held that it can
be issued. Reference in this context can be made to the decisions in (i)
Dulia Devi (supra) and (ii) Ritinbhai Dilsukhbhai Baxi
(supra), where in it has been held that there is no bar in issuing joint
succession certificate.
12. That a perusal of Sub-Section 4 to Section 373 of the Indian
Succession Act reveals that - 'When there are more applicants
than one for a certificate, and it appears to the Judge
that more than one of such applicants are interested in
the estate of the deceased, the Judge may, in deciding to
Page 13 of 24
whom the certificate is to be granted, have regard to the
extent of interest and the fitness in other respects of
the applicants.' Thus, it is apparent that when there is more than
one applicant, who are interested in the estate of the deceased, the
Courts while issuing the certificate, has to consider the extent of
interest and fitness of the said applicants.
13. This issue was also considered by a Co-ordinate Bench of this
Court in the case of Sakti Gupta Vs. Shantanu Gupta
(Dr.), reported in 2010 (1) GLT 645. In the said case, main
issues before this Court were :-
(i) Whether the learned District Judge committed error
in granting succession certificate jointly in
violation of the provisions of Section 373 of the
Act 1925?
(ii) Whether in absence of Class I heirs, heirs of the
deceased Petitioner and objectors are entitled to
get the Succession Certificate jointly as has been
done in the instant case by the learned Court
below?
13.1 Thereafter, this Court had decided the Issue No.1 and 2 in
affirmative, in following words:-
‚17.........................................
................
This particular aspect is to be taken up in
answering question Nos. 1 and 2 in order to
ascertain who has got the "best title" in
respects of debts and securities left out by the
deceased Praphulla Ranjan Gupta. The substituted
Appellants and the objectors all belong to
brother's son and daughter belonging to Group IV
of Class II of the Schedule appended to the Hindu
Succession Act, 1956 ('Act 1956', for short). All
of them belong to same degree with equal rights.
This finding is arrived at in order to determine
the "best title" of the claimants in the present
case. That being the position, I have no
hesitation to hold that the substituted
Appellants and the objectors are jointly entitled
to get the Succession Certificate and
distribution of property should be made among
heirs in Class II of the Schedule as contemplated
under Section 11 of the Hindu Succession Act,
1956. Therefore, the question Nos. 1 and 2 are
answered accordingly in favour of the heirs of
the brother of the deceased Praphulla Ranjan
Gupta.
18. In the following decisions, various High
Courts were of the view that succession
certificate can be issued jointly in favour of
many Applicants; it is not necessary that
succession certificate should be issued only in
favour of one person.
(i) AIR 1937 Ran 336: Daw John Bwint and Ors.
v. Daw Saw May and Anr.
(ii) MANU/PH/0004/1995 : AIR 1995 P&H 14 :
Shanti and Ors. v. Pankaj and Ors.
In Daw Saw (supra), the Court relying upon
the decisions reported in MANU/UP/0488/1934 : AIR
1935 All 470 held that though the order of
granting a certificate to more persons than one
might be inconvenient yet there is nothing
illegal in it.
In Shanti (supra), the Court held that
when assets left by the deceased is easily
distributable and the heirs falling in two groups
of being entitled to equal share, succession
certificate jointly in favour of many claimant
can be issued and it is not necessary that it
should be issued only in favour of one person.
While coming to the aforesaid
conclusion, the Court in Shanti (supra) relied
upon the following decisions:
(a) MANU/WB/0073/1941 : AIR 1941 Cal 663,
(b) MANU/RA/0079/1937 : AIR 1937 Rangoon 336,
(c) MANU/BH/0190/1936 : AIR 1936 Patna 430,
(d) MANU/BH/0099/1933 : AIR 1934 Patna 304,
(e) MANU/MH/0077/1929 : AIR 1929 Bombay 456,
(f) 1939 ALLJR page 717.‛
13.2 It is to be noted here that in view of decision of Hon'ble
Supreme Court in the case of Sandhya Educational Society v.
Union of India, reported in (2014) 7 SCC 701, wherein it has
been held that a Coordinate Bench has to respect the judgments and
orders passed by another Coordinate Bench. Relevant pargraph is
quoted herein below:-
‚9. In our considered opinion, judicial decorum
and discipline is paramount and, therefore, a
coordinate Bench has to respect the judgments
and orders passed by another coordinate Bench
and cannot on mere assumptions refer the matter
for consideration by a larger Bench. In that
view of the matter, keeping in view the well-
settled legal position in the cases of Vinod
Kapoor [(2012) 12 SCC 378 : AIR 2012 SC 3722]
, Suseel Finance & Leasing Co. [(2004) 13 SCC
675] and M.N. Haider [(2004) 13 SCC 677] , we
dismiss this appeal as not maintainable. Ordered
accordingly.‛
13.3 Same principle is re-affirmed by a Constitutional Bench of
Honble Supreme Court in the case of National Insurance Company
Limited vs. Pranay Sethi and Others, reported in (2017) 16
SCC 680.
13.4 Under the given factual and legal matrix, this Court is of the
view that the decision of the Co-ordinate Bench of this Court in Sakti
Gupta (supra) is binding upon this Court.
13.5 It is to be noted here that in the case of Vidhyadhari v.
Sukhrana Bai, reported in (2008) 2 SCC 238, Hon'ble Supreme
Court dealt with this issue as under:-
14. Therefore, though we agree with the High
Court that Sukhrana Bai was the only legitimate
wife yet, we would choose to grant the
certificate in favour of Vidhyadhari who was his
nominee and the mother of his four children.
However, we must balance the equities as Sukhrana
Bai is also one of the legal heirs and besides
the four children she would have the equal share
in Sheetaldeen's estate which would be 1/5th. To
balance the equities we would, therefore, choose
to grant succession certificate to Vidhyadhari
but with a rider that she would protect the 1/5th
share of Sukhrana Bai in Sheetaldeen's properties
and would hand over the same to her. As the
nominee she would hold the 1/5th share of
Sukhrana Bai in trust and would be responsible to
pay the same to Sukhrana Bai. We direct that for
this purpose she would give a security in the
trial court to the satisfaction of the trial
court.
13.6 In view of the aforesaid decision and also considering the
given facts and circumstances on the record, this Court is of the view
that if the litigating parties are entitled to their proportionate share in
respect of the debts and securities left behind by the deceased
employee, then there cannot be any bar in granting joint succession
certificate. And in that view of the matter, this Court is unable to
record concurrence with the submission of Mr. Biswas, learned counsel
for the appellant. The learned Trial Court, therefore, had not
committed any illegality in directing to issue joint succession certificate.
Issue No. II:-
14. Regarding issuance of succession certificate in respect of
debt and securities to a married daughter, which Mr. Biswas, the
learned counsel for the appellant has vehemently opposed, this Court
finds that the position has been changed after the Hindu Succession
(Amendment) Act, 2005 which introduced gender equality for the first
time, in succession laws in India. The 2005 Amendment and the
judicial decisions thereafter have clarified that a married daughter has
a right over the property of her father which is equal to that of a son
and the right of a legal daughter on her father's property does not
depend on her marital status.
14.1 The relevant provision, i.e. Section 6 read as under:-
'6. Devolution of interest in coparcenary
property.-
(1) On and from the commencement of the
Hindu Succession (Amendment) Act, 2005, in a
Joint Hindu family governed by the Mitakshara
law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own
right in the same manner as the son;
(b) have the same rights in the coparcenary
property as she would have had if she
had been a son;
(c) be subject to the same liabilities in
respect of the said coparcenary
property as that of a son, and any
reference to a Hindu Mitakshara
coparcener shall be deemed to include a
reference to a daughter of a
coparcener:
Provided that nothing contained in this sub-
section shall affect or invalidate any
disposition or alienation including any partition
or testamentary disposition of property which had
taken place before the 20th day of December,
2004.
(2) Any property to which a female Hindu becomes
entitled by virtue of sub-section (1) shall be
held by her with the incidents of coparcenary
ownership and shall be regarded, notwithstanding
anything contained in this Act, or any other law
for the time being in force, as property capable
of being disposed of by her by testamentary
disposition.
(3) Where a Hindu dies after the commencement of
the Hindu Succession (Amendment) Act, 2005, his
interest in the property of a Joint Hindu family
governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case
may be, under this Act and not by survivorship,
and the coparcenary property shall be deemed to
have been divided as if a partition had taken
place and,-
(a) the daughter is allotted the same share
as is allotted to a son;
(b) the share of the pre-deceased son or a
pre-deceased daughter, as they would
have got had they been alive at the
time of partition, shall be allotted to
the surviving child of such pre
deceased son or of such pre-deceased
daughter; and
(c) the share of the pre-deceased child of
a pre-deceased son or of a pre-deceased
daughter, as such child would have got
had he or she been alive at the time of
the partition, shall be allotted to the
child of such pre-deceased child of the
pre-deceased son or a pre-deceased
daughter, as the case may be.
Explanation.- For the purposes of this sub-
section, the interest of a Hindu Mitakshara
coparcener shall be deemed to be the share in the
property that would have been allotted to him if
a partition of the property had taken place
immediately before his death, irrespective of
whether he was entitled to claim partition or
not.
15. In the case of Vineeta Sharma vs. Rakesh Sharma
reported in AIR 2020 Supreme Court 3717, a three-judge bench of
the Hon'ble Supreme Court, interpreting the Hindu Succession
(Amendment) Act, 2005, to ensure gender equality in Hindu
inheritance laws, held that daughters have co-parcenary rights by
birth, just like sons, and these rights are not dependent on the survival
of their father as of 2005. The Court emphasized that co-parcenary
status is conferred by birth, making a daughter's entitlement to
ancestral property absolute and independent of any other condition.
Hon'ble Supreme Court has also ruled that the 2005 amendment has
retrospective effect, meaning that it applies to all pending cases where
inheritance rights were still unsettled. However, it does not operate
retroactively, which means it does not reopen settled partitions or
transactions that were lawfully concluded before 2005.
16. In view of aforesaid discussions and findings, the submission
of Mr. Biswas, learned counsel for the appellant is found to be devoid
of force. The issue No. II has to be decided in affirmative and
accordingly, the same stands answered.
Issue No.III.
17. Now coming to the Issue No.III, i.e. the point of issuance of
succession certificate in respect of family pension, it is well settled in
the case of Rosy Joseph (supra), Mustt. Zubeda Ahmed (supra)
and Nitu (supra), that family pension is independent and does not
require a succession certificate for its disbursement. It is not classified
as a debt and security under the Indian Succession Act, 1925, in
respect of which the succession certificate can be applied under
Section 372 of the Indian Succession Act.
18. The same is governed by the relevant pension rule, as held in
the case of Uttar Pradesh Roadways Retired Officials and
Officers Association(supra), and in the case of Smt. Violet
Issaac (supra). And in the present case, the Assam Service
(Pension) Rules, 1969 is applicable. And who will be entitled to the
pension is well settled by Hon'ble Supreme Court in the case of Nitu
(supra), wherein Hon'ble Supreme Court has held that the family
pension does not form part of the estate of the deceased and
therefore, even an employee has no right to dispose of the same in his
will by giving a direction that someone other than the one who is
entitled to, it should be given the same.
19. It is also held in the aforementioned case in paragraph No.16
that so far as the provisions of the Hindu Succession Act, 1956, are
concerned, it is true that the properties of a Hindu, who dies intestate,
would first of all go to the persons enumerated in class I of the
schedule as per the provisions of Section 8 of the said Act and
therefore, so far as the properties of late Shri Yash Pal are concerned,
they would be divided among the respondent mother and the appellant
wife, provided there is no other family member of late Shri Yash Pal
alive, who would fall within Class-1 heirs, but position in this case, with
regard to pension, is different.
20. Under the given facts and circumstances and also considering
the decision referred by learned counsel for both the parties, this Court
is of the view that the learned Trial Court has erred in granting
succession certificate in respect of the pension of the deceased
employee. But, in respect of the other debts and securities left behind
by the deceased employee, to the considered opinion of this Court, the
same warrant no interference of this Court.
21. In the result, this Court finds no merit in this appeal. And
accordingly, the same stands dismissed. While affirming the impugned
judgment and order dated 30.04.2024, the direction in respect of
family pension is interfered with. To balance the equities, between the
parties, following direction and observations are being issued:-
(i) Succession certificate shall be granted to the
appellant herein, being the nominee of the
deceased employee in his service record,
subject however to the condition that she
would protect the 1/4th share of respondent
Guneswari Borah (mother), Lipika Borah
(daughter) and Dipsikha Borah (daughter) of
the debt and securities left behind by the
deceased Late Subal Borah.
(ii) As the nominee she would hold the 1/4th share of
Late Sbal Borah in trust and would be
responsible to pay rest of the amount to the
respondent herein.
(iii) It is further provided that for this purpose she
would give a security in the learned trial
court to the satisfaction of the learned trial
court.
(iv) Since family pension is not classified as a debt
and security under the Indian Succession Act
1925, and does not require a succession
certificate for its disbursement, the
impugned judgment and order dated 30.04.2024,
directing to grant succession certificate in
respect of family pension is interfered with.
However, liberty will remain with the parties
to approach appropriate authority under the
relevant Pension Rule.
22. In terms of above, this appeal stands disposed of.
JUDG E
Comparing Assistant
