Madras High Court
Rahila Banu vs A.Kathija Banu on 3 September, 2024
C.M.A.(MD) No.1125 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.09.2024
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
C.M.A.(MD) No.1125 of 2018
and
C.M.P.(MD)Nos.11440 to 11442 of 2018
Rahila Banu ... Appellant
Vs.
1.A.Kathija Banu,
2.Superintendent of Police,
Virudhungagar. ... Respondents
Prayer: Civil Miscellaneous Appeal filed under Section 384 of Succession
Act No.39 of 1925 against the fair and decreetal order dated 24.04.2017
passed in S.O.P.No.2 of 2010 on the file of the I Additional District
Judge, Madurai.
For Appellant : Mr.M.R.Murugesan
Babu.Rajendran
For Respondents
for R1 : Mr.S.Pakalavan
for R2 : Mr.M.Muthumanikkam
Government Advocate
*****
_____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 7
C.M.A.(MD) No.1125 of 2018
JUDGMENT
The instant appeal has been filed challenging the order passed in the
petition filed under Section 372 of the Indian Succession Act by the
appellant.
2. The appeal arises under the following circumstances:
a. The appellant, claiming to be the wife of one Abdul Latif, filed a
petition to issue Succession Certificate to her for obtaining a sum of
Rs.11,50,000/- being the terminal benefits and other benefits of the
deceased.
b. The first respondent objected to the petition by filing a counter
and stating that the appellant got separated from the deceased; that the
deceased divorced the appellant as per the Muslim Personal Law; and that
thereafter, she had married the deceased and hence, the appellant was not
entitled to a Succession Certificate.
c. The appellant examined himself as P.W.1 and marked Exs.P1 to
P11. The first respondent filed proof affidavit and marked Exs.R1 to R11.
However, she had not subjected herself to cross-examination.
_____________
https://www.mhc.tn.gov.in/judis
3. The Trial Court, after considering the evidence on record, held
that the appellant was the legally wedded wife of the deceased and that
there is an evidence to show that the first respondent was also the legally
wedded wife of the deceased, it held that the appellant and the first
respondent each were entitled to 50% of the terminal benefits of the
deceased.
4. The learned counsel for the appellant submitted that having held
that the appellant is legally wedded wife since the first respondent had not
established her marriage, the Trial Court ought not to have directed that
both the appellant and the first respondent are each entitled to 50% of the
terminal benefits of the deceased.
5. The learned counsel for the first respondent, per contra,
submitted that the first respondent had filed the document, namely, the
Talak notice dated 11.01.1990, the copy of the insurance policy in the
name of the deceased and in the name of the first respondent, wherein the
relationship between the deceased and the first respondent is revealed and
therefore, the Trial Court was right in holding that both the appellant and
the first respondent are entitled to 50% each of the terminal benefits of the
_____________
https://www.mhc.tn.gov.in/judis
deceased.
6. The only point for consideration in the instant appeal is ‘Whether
the Court below was right in holding that the appellant and the first
respondent are each entitled to 50% of the terminal benefits of the
deceased?’
7. Though R.W.1 had filed a proof affidavit and marked Exs.R1 to
R11, she had not subjected herself to cross-examination. In the absence of
the same, the proof affidavit of the first respondent would have no value.
In fact, the Trial Court treated the first respondent ex parte. On the
contrary, the appellant had established that she was the legally wedded
wife of the deceased and that she had earlier sought for maintenance from
the deceased and there was no divorce between the appellant and the
deceased. Hence, the Trial Court rightly held that the appellant was the
legally wedded wife of the deceased. However, finding of the Trial Court
that there is prima facie evidence to show that the first respondent was
also the wife of the deceased is contrary to the evidence on record. The
Trial Court had come to the conclusion on the basis of the documents filed
along with proof affidavit of the first respondent, which would not have
_____________
https://www.mhc.tn.gov.in/judis
any evidentiary value, since the first respondent had not subjected herself
to cross-examination. Any conclusion based on those inadmissible
materials cannot be sustained. Therefore, this Court is of the view that the
appellant, had established that she was legally wedded wife of the
deceased and the first respondent had not established her claim. Thus, the
appellant would be entitled to the terminal benefits of the deceased and
hence, entitled to the Succession Certificate as prayed for.
8. In the result, this Civil Miscellaneous Appeal is allowed. The
order dated 24.04.2017 in S.O.P.No.2 of 2010 by the learned I Additional
District Judge, Madurai is set aside and the appellant would be entitled to
Succession Certificate as prayed for in S.O.P.No.2 of 2010. No costs.
Consequently, connected miscellaneous petitions are closed.
03.09.2024
Index: Yes/ No
NCC: Yes / No
Speaking Order / Non-Speaking Order
apd
_____________
https://www.mhc.tn.gov.in/judis
To:
1. The I Additional District Judge, Madurai
2.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
_____________
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
apd
03.09.2024
_____________
https://www.mhc.tn.gov.in/judis
