Smt. E. Kavaitha vs E. Usha
2022 Latest Caselaw 6166 Tel

       THE HONOURABLE SRI JUSTICE M.LAXMAN

 CIVIL MISCELLANEOUS SECOND APPEAL No.16 of 2022

JUDGMENT:

1. The present second appeal is arising out of judgment

and decree dated 24.03.2022 in C.M.A.No.66 of 2016 on the

file of IV Additional District and Sessions Judge, Rangareddy

District at L.B.Nagar, wherein and whereby, order dated

17.12.2014 in O.P.No.6 of 2014 on the file of Principal Senior

Civil Judge, Rangareddy District at L.B.Nagar, whereunder

succession granted in favour of the appellants herein, in

respect of death benefits of E. Raju, who was working as

Safai Karmachari in National Police Academy, Hyderabad,

was set aside and appeal was allowed. Aggrieved by the

same, the present second appeal is filed.

2. It is the case of the appellants that appellant No.1 is

legally wedded wife of E. Raju (hereinafter referred to as

'deceased'), who was working as Safai Karmachari in National

Police Academy, Hyderabad. Their marriage took place on

25.01.2009 and out of the said wedlock appellant No.2 was

born on 15.01.2009. On 24.03.2012, said E. Raju died due

to cardio respiratory arrest, while undergoing treatment in

Care Hospital, Hyderabad. During his life time, the deceased

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made entries into his service register showing appellants

herein and his mother as his family members. The said

entries reflect that appellant Nos.1 and 2 are wife and son of

the deceased. After the death of deceased, the appellants

obtained legal heir certificate dated 26.07.2012 from Mandal

Revenue Officer, Rajendranagar Mandal, Rangareddy District.

Meanwhile, the mother of the deceased also expired on

29.10.2013. Therefore, the appellants herein filed succession

O.P.No.6 of 2014 claiming service benefits of the deceased.

The trial Court after appreciating the evidence on record

allowed the claim of the appellants and granted succession

certificate dated 17.12.2014 in favour of appellants.

3. It is the case of respondent Nos.1 to 4 herein that

respondent No.1 is legally wedded wife of the deceased and

appellant No.1 is not legally wedded wife. Out of the

marriage between deceased and respondent No.1, respondent

Nos. 2 to 4 were born. They also claimed that they filed

O.P.No.2 of 2014 on the file of Munsif Court, Attingal, Kerala

and obtained succession certificate dated 24.03.2015, as

legal heirs of deceased. Respondent No.1 herein also filed

O.P.No.380 of 2013 on the file of Family Court, Attingal,

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Kerala and obtained declaration that she is legally wedded

wife of the deceased. Appellant No.1 herein was party to both

the said cases, but she did not contest the proceedings.

Ultimately, the Courts in Kerala declared that respondent

Nos.1 to 4 are legal heirs of the deceased, and respondent

No.1 was declared as legally wedded wife of the deceased.

According to them, suppressing the said facts O.P.No.6 of

2014 was filed by the appellants and succession certificate

was obtained illegally without making them party to the suit.

Hence, they filed the first appeal.

4. In view of the above facts and in the light of the findings

rendered by the Courts in Kerala in O.P.Nos.380 of 2013 and

280 of 2014, the first appellate Court allowed the appeal.

Consequently, the succession certificate granted in the favour

of the appellants herein was cancelled. Aggrieved by the

same, the present second appeal is filed at the instance of the

appellants.

5. Heard both sides.

6. In the light of above submissions, the points emerging

for consideration in this second appeal are as follows:

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"1. Whether the appellants are entitled to claim as legal heirs to the estate of the deceased?

2. Whether the respondent Nos.1 to 4 are alone entitled to be declared as legal heirs of the deceased?

3. To what relief ?"

Point Nos.1 and 2:

7. Learned counsel for the appellants contended that the

entries in service register of the deceased show that the

appellants along with mother of the deceased were only his

family members and there are no entries of names

respondent Nos.1 to 4. Therefore, according to him, the first

appellate Court ought not to have set aside the succession

granted in favour of the appellants.

8. On the contrary, learned counsel for respondent Nos. 1

to 4 contended that there is a judgment and decree from

competent Court that the respondent No.1 is legally wedded

wife of the deceased and appellant No.1 was made party to

such proceedings. Similarly, the Munsif Court, Attingal,

Kerala has granted succession certificate in favour of

respondent Nos.1 to 4 and appellant No.1 was also made as

party to such proceedings. Therefore, according to him, the

first appellate Court considered all the material placed on

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record and has rightly set aside the succession certificate

obtained by the appellants. Such order requires no

interference by this Court.

9. It is not seriously in dispute that names of appellants

are entered in the service register of deceased, as wife and

son. The judgment and decree obtained by respondent Nos.1

to 4 from Family Court, Attingal, Kerala shows that

respondent No.1 is legally wedded wife of deceased and

appellant No.1 was made party to such proceedings. When

such a declaration of legal status is on record, without

assailing such order, appellant No.1 cannot say that she is

legally wedded wife of the deceased.

10. It is also not seriously in dispute that appellant No.2 is

son of deceased and born out of invalid marriage of deceased

and appellant No.1. Appellant No.2 is also legal heir of the

deceased and he is entitled to claim right in the estate of his

deceased father. The first appellate Court has not considered

this aspect that appellant No.2 is one of the legal heirs of

deceased. To that effect, findings of the first appellate Court

requires interference.

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Point No.3:

11. In the result, the second appeal is partly allowed and

preliminarily decreed as follows:

a. The judgment and decree dated 24.03.2022 in

C.M.A.No.66 of 2016 on the file of IV Additional District and

Sessions Judge, Rangareddy District at L.B.Nagar, is set

aside to the extent of issue of succession certificate to

appellant No.2, to the extent of 1/5th share in the estate of

deceased.

b. Appellant No.2 is entitled to succession certificate to

the extent of 1/5th share of amounts lying to the credit of

deceased estate.

c. Respondent Nos. 1 to 4 are entitled to 1/5th share each

in the estate along with appellant No.2.

d. There shall be no order as to costs.

Miscellaneous petitions, if any, pending, shall stand

closed.

______________ M.LAXMAN, J Date: 25.11.2022 GVR