Leelaben Dineshbhai Bhagora vs Nileshbhai Ramjibhai Bhesdadiya
2024 Latest Caselaw 1237 Guj

Gujarat High Court

Leelaben Dineshbhai Bhagora vs Nileshbhai Ramjibhai Bhesdadiya on 13 February, 2024

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      C/SA/45/2023                                      ORDER DATED: 13/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 45 of 2023

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                    LEELABEN DINESHBHAI BHAGORA
                                Versus
               NILESHBHAI RAMJIBHAI BHESDADIYA & ORS.
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Appearance:
MR SANDIP M PATEL(5649) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MR DEEP D VYAS(3869) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 13/02/2024
                              ORAL ORDER

1. The present Second Appeal is filed under Section

100 of the Civil Procedure Code, 1908 (hereinafter

referred to as "the Code") by the present appellant -

original defendant by challenging the legality and validity

of the impugned judgment and order dated 07.03.2022

passed in Regular Civil Appeal No.17 of 2022 by the

District & Sessions Court, Jamnagar and also challenging

the judgment and decree dated 10.01.2022 passed in

Regular Civil Suit No.447 of 2020 by the learned Senior

Civil Judge, Jamnagar.

2. Brief facts of the case are as such that the present

appellant is the mother of the deceased Sharmilaben and

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deceased sharmilaben was serving in the respondent No.

3, PGVCL at Morbi on the post of Junior Assistant

Clerk and that time the sharmilaben had submitted one

nomination form regards to service benefit in the favour

of the present appellant and then after the deceased

Sharmilaben who is re-married with the respondent No.

1 and then after the respondent No. 2 is born on dated

17-10-2013 and during the pregnancy treatment deceased

Sharmilaben were expired in hospital and that time the

present appellant was taking care during the pregnancy

period. It is further the case of the present appellant in

this application that the present appellant had filed the

one application for heirship certificate of the deceased

Sharmilaben in the favour of present appellant by way of filling CRMA No.108 of 2013 on demand of respondent

No.3. Moreover, respondent No. 3 had also passed the

office order in the favour of present appellant as

nomination is in the favor of present appellant but the

same is disputed by the present respondent No. 1 and,

therefore, appellant had preferred the heirship certificate

proceeding and then after it is converted into Regular

Civil Suit No. 447 of 2020 before the Senior Civil Judge

Jamnagar. It is further the case of the present appellant

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in this application that the present appellant and

respondent Nos.1 and 2 both had filed their reply and

present respondent Nos.1 had only given the oral

evidence and not given any documentary evidence and

after hearing the both the parties, the suit is partially

allowed in the favour of present respondent No.1 and 2

and ordered to issue Heirship Certificate in the favor of

present respondent Nos.1 and 2 on deposition of court

fee for the service benefit of deceased Sharmilaben worth

Rs. 4,46,472/- with interest by judgment and order dated

10-01-2022. It is further the case of the present

appellant in this application that the appeal filed by the

present appellant by way of filling Regular Civil Suit

No.17 of 2022 before the District & sessions Court, Jamnagar and respondent No. 1 and 2 had also filed a

Regular Civil Appeal No. 21 of 2022 against the same

judgment and order and after hearing the both the

parties the both Appeal are rejected by common

judgment and order dated 07-03-2022. Hence, the present

appeal is preferred by the present appellant -

respondents of that appeal i.e. Regular Civil Appeal

No.17 of 2022.

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3. The suggested substantial question of law as framed

in paragraph No.4 of memo of present appeal are as

follows:

 A. Whether the unreasoned/ non-speaking rejection

order passed by the court below can be sustained in the

eyes of law?

 B. Whether the property or benefit of the married

woman can be dispose in favor of her parents on the

base of nomination?

 C. Whether the deceased had executed nomination

which is continue even after her marriage and then the

nomination is in nature of wheel in the favor of nominee therefore property can be dispose in the favor of

nominee?

 D. Whether Hindu Succession Act is applicable in

the case of married women who had executed nomination

prior to her death?

 E. Whether the Ld below Court as well as the Ld

Trial Court had rightly deciding the issue of disposal of

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service benefit of deceased married women in the favor

of husband and children?

 F. Whether Ld Court below had rightly deciding the

issue of disposal of the property in the case of deceased

Sharmilaben?

4. Heard Mr. Sandip M. Patel, the learned counsel for

the appellant and Mr. Deep D. Vyas, the learned counsel

for the respondent.

5. Mr. Sandip M. Patel, the learned counsel for the

appellant has relied on the grounds mentioned in the

appeal memo as well as relied upon also questions of

law, more particularly, suggested substantial question of law mentioned in paragraph 4(B) of the memo of appeal

i.e. "B. Whether the property or benefit of the married

woman can be dispose in favor of her parents on the

base of nomination". He has strongly relied on the fact

that in view of the provisions of law, deceased

Sharmilaben has filed nomination in favour of the

present appellant, which is in nature of "Will" and which

is continued after the marriage of deceased Sharmilaben

with the respondent No.1 - PGVCL and, therefore,

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married women with the husband and then husband do

not have any right to acquire any interest in such

property of the wife and as per Section 4 of the

Married Women's Property Act, 1874, which clearly shows

that the property of wife may be disposed as per her

Will and, therefore, he is challenging the findings of both

the courts below on this ground only. Furthermore, he

has submitted that the learned lower Appellate Court

has not properly considered the ratio laid down in the

judgment of Hon'ble Apex Court in the case of Sarvati

Devi vs. Miss. Usha Devi reported in AIR 1984 SC 346.

Furthermore, he has submitted that considering the main

contention, no other contention is pressed in service and

has prayed that the present appeal is required to be admitted and thereafter, is required to be allowed after

hearing the parties as both the courts below have erred

in law, more particularly, on the above-mentioned aspects

and therefore, he has prayed to grant appropriate relief.

6. Per contra, Mr. Deep D. Vyas, the learned counsel for the respondent has strongly opposed the submissions

made at the bar and has submitted that both the courts

below have not committed any error in law. Furthermore,

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he has submitted that on the contrary, the court has

discussed each and every aspects and also dealt with the

judgment in the case of Sarvati Devi (supra), which is

relied by present appellant and has interpreted the

relevant provisions of law and has come to definite

conclusion that the appellant herein can receive the

amount of policy in view of that judgment as a nominee,

but the amount is required to be distributed amongst the

heirs of such deceased persons. Furthermore, he has

submitted that both the courts below have discussed

everything in detail more particularly, this legal aspect

as well as judgment in the cases of Sarvati devi (supra),

Challamma vs. Tilaga in Civil Appeal No.4961 of 2009

arising out of the Special Leave Petition (Civil) No.4457 of 2006 dated 31.7.2009, more particularly, the same are

discussed in paragraph 23 and on wards in the judgment

of the learned lower Appellate Court. The learned lower

Appellate Court has also discussed the relevant material

and also provisions of Indian Succession Act as well as

the provisions of Hindu Succession Act, more specifically,

Section 15 of Hindu Succession Act, and has come to the

conclusion that the trial court had not committed any

error and has confirmed the judgment given by the trial

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court. Accordingly, the appeal preferred by the present

appellant has consequently got dismissed and, therefore,

he prays that in the present case, there is no

substantial question involved in the appeal, more

particularly, by considering the judgment of the Hon'ble

Apex Court in the cases of (i) Shri Vishin N.

Khanchandani & Anr vs Vidya Lachmandas

Khanchandani & Anr. reported in 2000 6 SCC 724 (ii)

Shipra Sengupta Vs. Mridul Sengupta reported in 2009

10 SCC 680, and has submitted that the present Second

Appeal is required to be dismissed as no substantial

question of law is required to be considered in the facts

and circumstances of the present case, in view of the

findings of the both the courts below and also the settled position of law.

7.1 I have considered the rival submissions made at the

bar by the respective parties. I have also perused the

impugned judgments passed by both the courts below. It

is evident that Regular Civil Suit No.447 of 2020 was

filed before the learned 4th Additional Senior Civil

Judge, Jamnagar. The suit was partly allowed by

judgment dated 10.1.2022, favouring the plaintiffs.

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Subsequently, Regular Civil Appeal No.17 of 2022 was

lodged by the original defendant No.1, challenging the

aforementioned judgment and decree. Additionally,

Regular Civil Appeal No.21 of 2022 was filed by the

original plaintiffs. The learned lower Appellate Court has

dismissed both the appeals by common judgment,

affirming the decision of the trial court and concluding

that the judgment and operative portion contained

therein were just and appropriate, thus warranting no

further intervention.

7.2 The crux of the dispute revolves around whether a

married woman can dispose of her parental property

based on a nomination made by such a person. In the

present case, it is evident from the records that the deceased, Sharmilaben, who was the daughter of

Dineshbhai Bhagora, was married to plaintiff No.1. Out

of this wedlock, a son named Deep was born on

17.10.2013. Prior to her marriage, Sharmilaben was

residing in Jambuda and was employed as a Junior

Assistant with PGVCL, Morbi. During her tenure at

PGVCL, while still unmarried, she nominated the original

defendant No.1 as her nominee. Subsequently,

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Sharmilaben passed away after giving birth to her son,

Deep, without executing any testamentary document.

Consequently, as per Section 15 of the Hindu Succession

Act, no other heirs were there, and defendant No.1 could

be considered a third-degree dependent. Thus, the suit

was filed to claim the LIC Policy amounting to

Rs.2,73,000, a Maruti Wagonr car owned by the deceased

Sharmilaben, ornaments valued at Rs.2 lakhs, and to

direct the defendant No.1 to provide an account of the

other properties belonging to Sharmilaben. However,

defendant No.1 contests these claims.

7.3 Subsequently, the learned trial court has partly

allowed the suit in question. Thereafter, the appeal is preferred by both the parties, which are dismissed by

common judgment by the lower Appellate Court. Hence,

the present appeal is preferred by the original defendant

No.1.

7.4 The main contention raised by the present appellant

necessitates an examination of the legal question

regarding whether the benefits of married women can be

disposed of based on a nomination. In light of pertinent

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judgments by the Hon'ble Supreme Court, particularly in

the cases of (i) Shri Vishin N. Khanchandani (supra) and

(ii) Shipra Sengupta (supra), paragraphs 17, 18, and 19

are particularly relevant. In these paragraphs, the Court

has observed that nominee is the person in whose hand

the amount would be handed over, the amount so

received is to be distributed according to the law of

succession. The relevant paragraph in the case of Shipra

Sengupta (supra) are as under:

"17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession.

18. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same.

19. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of

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succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956. The State Bank of India is directed to release half of the amount of general provident fund to the appellant now within two months from today along with interest."

7.5 Relevant paragraph of the judgment in the case of

Shri Vishin N. Khanchandani (supra) are 11 to 14, as

under:

"11. It is contended on behalf of the appellants that the non obstante clause in Section 6 excludes all other persons, including the legal heirs of the deceased holder, to claim any right over the sum paid on account of the national savings certificates, to the nominee. There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind.

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12. The submission made on behalf of the appellants has no substance in view of sub-section (2) of Section 8 and the Statement of Objects and Reasons necessitating the passing of the Act. Sub-section (1) of Section 8 provides that if any payment is made in accordance with the provisions of the Act to a nominee, the same shall be a full discharge from all further liabilities in respect of the sum so paid. Section 7 of the Act provides that after the death of the holder of the savings certificates payment of the sum shall be made to the nominee, if any, and sub-section (1) of Section 8 declares that such payment shall be a full discharge from all further liabilities in respect of the sum so paid. However, sub-section (2) of Section 8 specifies that the payment made to the nominee under sub-section (1) shall not preclude any executor or administrator or the legal representative of the deceased holder of a savings certificate from recovering from the person receiving the same under Section 7; the amount remaining in nominee's hand after deducting the amount of all debts or other demands lawfully paid or discharged by him in due course of administration. In other words though the nominee of the national savings certificates has a right to be paid the sum due on such savings certificates after the death of the holder, yet he retains the said amount for the benefit of the persons who are entitled to it under the law of succession applicable in the case, however, subject to the exception of deductions mentioned in the sub-section. In the Statement of Objects and Reasons of the Act it is stated:

"The Post Office National Savings Certificate

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Ordinance, 1944 (42 of 1944), issued under Section 72 of the Ninth Schedule to the Government of India Act, 1935, as originally enacted and continued in force by virtue of the provisions of the India and Burma (Emergency Provgisions) Act, 1940 (3 and 4 Geo. 6, Ch. 33) regulates the sale and discharge of National Savings Certificates issued through the Post Office. Suggestions have been made from time to time that as the production of legal proof of succession involves considerable delay and expense, the holders of savings certificates may be allowed the right to nominate one or more persons to receive the amounts due in respect of such certificates in the event of their death without the production of succession certificate or other proof of title. In seeking to amend that Ordinance for the above purpose, opportunity is taken to replace it by an Act of Parliament."

(emphasis supplied)

13. In the light of what has been noticed hereinabove, it is apparent that though language and phraseology of Section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the provisions regarding avoiding delay and expense in making the payment of the amount of the national savings certificates, to the nominee of holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after valid deductions or becomes the estate of the deceased. Such an estate devolves

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upon all persons who are entitled to succession under law, custom or testament of the deceased holder. In other words, the law laid down by this Court in Sarbati Devi's case holds field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of national savings certificates received by him under Section 6 read with Section 7 of the Act who in turn is liable to return the amount to those, in whose favour law creates beneficial interest, subject to the provisions of sub- section (2) of Section 8 of the Act.

14. Under the circumstances this appeal is allowed with a direction that the succession certificates shall be issued in favour of the respondents in respect of debts detailed in Annexures A and B to the application filed in the Court of Civil Judge, Senior Division, Thane subject to their payment of necessary court fees and estate duty certificate. The respondents would, however, not be entitled to directly receive the amounts payable on account of debts payable under National Savings Certificates at Sl.Nos.17 to 26 in Annexure A and Sl.Nos.1 to 4 in Annexure B. The appellants are held entitled to receive the sum due on the aforesaid national savings certificates in which they are the nominees upon furnishing the undertaking in terms of sub- section (2) of Section 8 of the Act in the court of Civil Judge, Senior Division, Thane. The amount received by the appellants on account of the national savings certificates in which they are nominees shall be payable to the respondents after deduction of the amounts of debts or other demands lawfully paid or discharged, if any. Costs

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made easy."

7.6 Considering the judgments referenced above, the

crux of the matter in the present case revolves around

whether defendant No.1, who is not a class-I heir, is

entitled to any share of the property. The courts below

have rightly determined that defendant No.1 is not

entitled to any share. Therefore, considering the fact that

the original plaintiffs are direct heirs and trial court has

rightly considered this aspect, by partly decreeing the

suit, and the lower appellate court has affirmed the

same, I find no merit in the present Second Appeal.

Both the lower courts have given concurrent findings of

fact and have the considered various provisions of law,

which is in consonance with the settled position of law. No errors have been committed in considering the

evidence presented by the parties. The main contention

surrounding the entitlement of the nominee to a share

has been adequately addressed by both the courts below,

in line with settled legal principles of law. Consequently,

the present appeal is not required to be considered any

further as no substantial question of law involves in the

present appeal.

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7.7 The scope of Section 100 of the Civil Procedure

Code is fruitful to refer, which is as under:

"Section 100.

100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

STATE AMENDMENT

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Kerala.

In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:

(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question."

7.8 It is also required to refer the recent judgment of

the Hon'ble Apex Court in the case of Gurbachan Singh

(Dead) Through Lrs. vs. Gurcharan Singh (Dead) Through

Lrs and Others reported in (2023) SCC OnLine SC 875,

more specifically, paragraph 7, 14 & 15 are relevant, as

under:

"7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed v. J. Kamala6( 2 Judge Bench), it was observed:

"27. In HeroVinoth v. Seshammal [HeroVinoth v. S eshammal, (2006) 5 SCC 545] , this Court referred to

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and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (SCC p. 554, para

21)

"21. The phrase "substantial question of law", as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law", means-- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [Guran Ditta v. Ram Ditta, 1928 SCC OnLine PC 31 : (192728) 55 IA 235 : AIR 1928 PC 172] the phrase "substantial question of law" as it

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was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal case [Chunilal V. Mehta & Sons Ltd. v.

Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] :

(Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC 1314] , AIR p. 1318, para 5) '

5. ... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.'

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28. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way." (Emphasis supplied)

14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgement entering into a reappreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are:

" (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

15. A Bench of three learned Judges, recently in Balasubramanian and Anr. v. M. Arockiasamy (Dead)

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Through LRs., had referred to, with approval judgement rendered in Ramathal v. Maruthathal & Ors (twoJudge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence "suffers from material irregularity" the court will be justified in interfering with such findings."

7.9 In view of the overall discussions of the matter, the

present Second Appeal is required to be dismissed as it

is found meritless.

8. Resultantly, the present Second Appeal is dismissed.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA