Madhya Pradesh High Court
Kushmabai vs Shyambati Parwar on 25 February, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1 CR No.788/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 25th OF FEBRUARY, 2025
CIVIL REVISION No. 788 of 2019
KUSHMA BAI AND OTHERS
Versus
SHYAMBATI PARWAR AND OTHERS
Appearance:
Shri Sanjay Sharma - Advocate with Ms. Priyal Rahangdale - Advocate for the
applicants.
Shri Ramji Pandey - Govt. Advocate for respondent 4/State.
ORDER
This civil revision has been preferred by the applicants challenging the
order dated 06.09.2019 passed by District Judge, Balaghat, in Misc. Civil
Appeal No.12/2019 reversing/modifying the order dated 22.12.2018 passed by
First Civil Judge Class-I, Balaghat, in MJC-SUC/34/2018 whereby trial Court
held that the applicant - Kushma Bai being nominee is entitled for succession
certificate in respect of terminal dues upon death of Anup Das, but in appeal,
appellate Court has held that except Kushma Bai who is third wife of deceased,
all other applicants and respondents 1-3 are entitled to get the succession
certificate for receiving the terminal dues upon death of Anup Das.
2. Learned counsel for the applicants submits that Anup Das who was
serving in Government Higher Secondary School, Palehra, had died on
17.09.2011, therefore, being wife, daughter and mother, the respondents 1-3
(Shyambati Parwar, Anjulata and Varshibai) moved an application under
Section 372 of the Indian Succession Act, alleging themselves to be entitled for
succession certificate to receive the terminal dues.
3. The applicants 1-5 (Kushmabai, Pushplata, Ku. Vineeta, Ku. Madhu
and Ku. Unnu) appeared and filed reply. The applicant 1 - Kushma Bai claimed
herself to be first wife of Anup Das and the applicants 2-5 to be children of
Anup Das from their wedlock. It is also contended that the applicant 1 -
Kushma Bai is nominee in the service record, hence the applicants are entitled
to receive the succession certificate.
4. Upon consideration of the material available on record and in view of
the fact that the applicant 1 - Kushma Bai is nominee, trial Court vide its order
dated 22.12.2018 dismissed the respondents 1-3's application and holding the
applicant - Kushma Bai to be entitled for receiving the terminal dues/death
benefits, ordered for issuance of certificate in her favour.
5. Upon filing misc. appeal by the respondents 1-3, appellate Court has
modified the order passed by trial Court and held that except the applicant 1 -
Kushma Bai, who is third wife of deceased Anup Das, all other applicants and
respondents 1-3 are entitled to succeed the property left by Anup Das and
directed for issuance of succession certificate in their favour vide impugned
order dated 06.09.2019.
6. Learned counsel for the applicants submits that admittedly Kushma Bai
resided for a long period with deceased - Anup Das and from their wedlock the
applicants 2-5 were born and despite finding this fact to be proved, appellate
Court has committed illegality in passing the impugned order excluding the
applicant 1 - Kushma Bai. Learned counsel for the applicants submits that even
if for the sake of arguments, the applicant 1 - Kushma Bai is not treated to be a
legally wedded wife, then too in the light of decisions of Hon'ble Supreme
Court in the case of Vidhyadhari and others vs. Sukhrana Bai and Others (2008)
2 SCC 238 & Tulsa Devi Nirola and Others vs. Radha Nirola and Others (2020)
5 SCALE 244 = 2020 SCC Online SC 283, the applicant 1 is also entitled for
succession certificate along with the applicants 2-5 & respondents 1-3.
Accordingly, he prays for modification of the impugned order to that extent.
7. In spite of service of notice, no one is appearing on behalf of the
respondents.
8. Heard learned counsel for the applicants and perused the record.
9. In the present case, although appellate Court has held that the applicant
1 - Kushma Bai had resided with deceased - Anup Das for a long period and
from their wedlock the applicants 2-5 were born, but while passing the
impugned order, first appellate Court has held the applicants 2-5 to be entitled
for succession certificate along with respondents 1-3 (who according to the
Court, are first wife, daughter and mother of deceased).
10. It is pertinent to mention here that although the applicant 1 - Kushma
Bai is nominee in the service record but cannot be said to be legally wedded
wife of deceased, in presence of respondent 1-Shyambati, who undisputedly is
legally wedded wife and was not divorced by the deceased before performing
second/third marriage with the applicant 1-Kushma Bai.
11. In the case of Vidhyadhari (Supra) Hon'ble Apex Court has held as
under:-
"10. Therefore, though we agree with the High Court that Sukhrana Bai was the only
legitimate wife yet, we would chose 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, chose 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."
12. Aforesaid judgment in the case of Vidhyadhari (supra) has also been
relied upon in the case of Tulsa Devi Nirola (supra) but in both the cases
entitlement of second/third wife, especially in presence of first wife, was not
recognised, that too without any divorce.
13. As such, in view of the aforesaid factual scenario and even in the light
of decisions in the case of Vidhyadhari (supra) and Tulsa Devi Nirola (supra),
the order passed by first appellate Court does not appear to be illegal or
unsustainable.
14. Accordingly, this civil revision fails and is hereby dismissed.
15. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
SN
SATTYEND Digitally signed by SATTYENDAR NAGDEVE
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postalCode=482001, st=Madhya Pradesh,
serialNumber=B15AE3A81EA93B6FF53B05BF3
NAGDEVE
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Date: 2025.02.27 12:50:23 +05'30'
