Telangana High Court
Mylarapu Sarojana vs Mylarapu Mallamma And 4 Ors on 11 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.444 OF 2012
JUDGMENT:
Aggrieved by the order dated 21.01.2007 in O.P.No.414 of
2007 (hereinafter will be referred as impugned order) passed by
the learned III Additional District Judge at Karimnagar, the
respondent No.1 filed the present Civil Miscellaneous Appeal to
set aside the impugned order.
2. For the sake of convenience, hereinafter, the parties will
be referred as per their array before the learned III Additional
District Judge at Karimnagar.
3. The brief facts of the case are that the petitioner filed an
application under Section 372 of the Indian Succession Act for
issuance of succession certificate in her favour and directing
respondent Nos.2 to 4 to pay the death benefits of her husband
Mylarapu Rayamallu (hereinafter will be referred as 'deceased')
to a tune of Rs.3,09,371/-. In the said application, it was
alleged as follows:
a) The petitioner is the legally wedded wife of late Mylarapu
Rayamallu, who died on 21.11.1997 while working as General
Mazdoor in 8-A Incline (Mine) Godavarikhani leaving him the
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petitioner as his sole legal heir and successor. The petitioner is
shown as nominee of Myalarapu Rayamallu in all the relevant
records of his service to receive terminal benefits after his death.
b) On the death of Myalarapu Rayamallu, the petitioner
applied for payment of terminal benefits of deceased to a tune of
Rs.3,09,371/- but the respondent Nos.2 to 4 refused to pay the
same on the ground that the first respondent made a rival claim
stating that she is the second wife of Mylarapu Rayamallu. The
first respondent filed O.S.No.73 of 1999 on the file of learned
Junior Civil Judge, Peddapally for declaration of her status as
wife of deceased but the same was dismissed on 10.10.2000.
No appeal was preferred and thereby the decree and judgment
in O.S.No.73 of 1999 became final.
c) The first respondent by suppressing the above facts filed
O.P.N.559 of 2000 on the file of learned District Judge,
Karimnagar for grant of succession certificate and the same was
allowed. On coming to know the same, the petitioner filed
O.P.No.373 of 2001 before the District Court, Karimnagar
praying the Court to revoke the order through which the
succession certificate granted in favour of respondent No.1 and
the OP was dismissed on 06.10.2004 on the file of learned I
Additional District Judge, Karimnagar. Aggrieved by the same,
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the petitioner preferred CMA No.4838 of 2004 before the High
Court, wherein the CMA was allowed by setting aside the order
passed in O.P.No.559 of 2000 and the succession certificate
issued in favour of the first respondent was revoked. While
adjudicating the issue, the High Court observed that the parties
are liberty to move the lower Court to obtain fresh succession
certificate. The petitioner is clause - I legal heir of deceased and
thus, she is entitled for terminal benefits of the deceased.
d) The first respondent is the stranger to the family of the
deceased. The first respondent is the wife of one Rajaiah, who
died about 7 years ago i.e., in or around in the year 2000 at
Godavarikhani of Ramagunda. The first respondent developed
close intimacy with the family of the deceased and advantage of
such intimacy, she is making false claim. The first respondent
is not entitled for any claim from the death benefits of the
deceased.
4. To the above said petition the respondent Nos.2 to 4
remained ex parte. However, the first respondent filed detailed
counter, the brief averments of which are as under:
a) The first respondent withdrawn O.S.No.73 of 1999 as
shecould not pay the process due to poverty. The petitioner
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took divorce from the deceased on 16.01.1983 as per customs
prevailing in their community, in the presence of elders, as she
could not begot children. The petitioner married one Doddipally
Mallaiah r/o. Kothagudem and residing with him at H.No.5-1-
95 at Coolie Lane, Kothagudem of Khammam District. The
petitioner gave birth to children through Doddipally Mallaiah, as
such the petitioner cannot be treated as class - I heir of the
deceased.
b) The first respondent was given in marriage to
Mardugonda Rajiah at her childhood, as such she took
customary divorce as prevailed in their community. Later the
first respondent married the deceased, after customary divorce
deed executed by the petitioner in favour of the deceased. The
deceased got entered in all his service records, the name of first
respondent as his nominee.
c) The petitioner is not entitled to death benefits of deceased
and the petitioner filed this case at the instance of Doddipally
Mallaiah. There are no bona fides in the petition and thus,
prayed to dismiss the petition.
5. Before the trial Court, PWs 1 to 3 were examined and
Exs.A1 to A4 were marked on behalf of the petitioners and
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whereas on behalf of respondents, RWs 1 to 4 were examined
and Exs. B1 to B18 were marked. The learned III Additional
District Judge at Karimnagar after considering the evidence on
record, both oral and documentary, has allowed the petition
granting succession certificate in favour of petitioner.
6. Dissatisfied by the impugned order, the respondent No.1
filed the present Civil Miscellaneous Appeal to set aside the
impugned order.
7. Heard both sides and perused the record including the
grounds of appeal.
8. The first and foremost contention of the learned counsel
for the respondent No.1 is that the petitioner is not entitled for
succession certificate since she took divorce from the deceased
on 16.01.1983 itself and married one Doddipaly Mallaiah
r/o.H.No.5-1-95, Kothagudem of Khammam District. In
support of her contention, the respondent No.1 relied upon
Ex.B1 copy of customary divorce on stamp paper of Rs.3/- and
also the evidence of RWs 3 and 4. Ex.B1 was specifically denied
by the petitioner and it is to be observed that both the spouses
must be aware of the divorce proceedings and their signatures
are very much necessary on any divorce. The learned III
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Additional District Judge at Karimnagar in the impugned order
at page No.10 and paragraph No.17 has clearly stated that even
according to the customs prevailing in the community, a
customary divorce must be signed by both the spouses but in
Ex.B1 there is no signature of deceased.
9. Moreover, since the petitioner is an illiterate, her thumb
impression has to be subscribed on the alleged customary
divorce under Ex.B1. But surprisingly, in Ex.B1 the name of
the petitioner was written as if she is a literate. Further, a mere
name as "Mallamma" was written and her surname was also not
mentioned. RW3 in his evidence admitted that he does not
know the contents of Ex.B1 and also as to whether it was
issued by the court or not. RW4 is the caste elder, who belongs
to Chadrapur of Maharashtra State and he admitted in his
cross examination that he can read and writ Hindi but he
cannot read or write Telugu. RW4 admitted that Ex.B1 was in
Telugu. Thus, both the witnesses do not know about the
contents of Ex.B1. Even otherwise, it is to be seen that the
petitioner and deceased belong to Rajaka Community and there
is no practice of customary divorce in such community.
Furthermore, RW4 admitted that he knew that the parties
belonging to washer-man caste profession belong to Hindu
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religion and they cannot take customary divorce; it is not
permitted under law; they have to obtain divorce from Court of
law; he also informed the parties about the law. Thus, the every
evidence adduced on behalf of respondent No.1 clearly discloses
that there is no question of customary divorce in the
washer-man/dhobi/rajaka community and that none of the
witnesses examined on behalf of respondent No.1 are aware
about the contents of Ex.B1. Even the learned III Additional
District Judge at Karimnagar also observed in the impugned
order that customary divorce deed among the rajaka community
is against law.
10. As per the evidence of RW4 the contents of Ex.B1 were
read over by Chakali Mallaiah and Chakali Somaiah, who are
alleged to be the attestors of said document. But strangely the
attestors were not examined on behalf of respondent No.1 to
prove Ex.B1/Ex.B18. Due to non examination of attestors of
Ex.B1/Ex.B18, more particularly when the RWs 3 and 4 are not
aware of the contents of Ex.B1/Ex.B18 and since there is no
other evidence to substantiate that Ex.B1/Ex.B18 is genuine
and valid, this Court cannot consider the said document to
come to a conclusion that the deceased and petitioner got
divorced.
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11. The other contention of the learned counsel for the
respondent No.1 is that Exs.A2 to A4 are not sufficient
documents to prove her claim. Ex.A2 is the order in CMA
No.4838 of 2004 preferred by the petitioner aggrieved by the
succession certificate issued in favour of the respondent No.1 in
O.P.No.559 of 2000 and by allowing the petition filed by the
petitioner in O.P.No.373 of 2001. Ex.A3 is the order of the
Assistant Labour Commissioner, Mancherial, wherein it was
declared that the petitioner, who is the wife of deceased as
nominee as per Form F under sub section (1) of the Section 6 of
the Act and thereby entitled to gratuity amount payable to the
deceased. These documents amply establish that the petitioner
is the legal heir of deceased. Apart from the above documentary
evidence, the petitioner got examined her paternal aunt and co-
worker of deceased as PWs 2 and 3, whose evidence was
corroborating with the evidence of petitioner as PW1. Though
PWs 1 to 3 were cross examined, nothing was elicited to discard
their evidence. Even otherwise, the respondent No.1 herself
admitted that the petitioner is the wife of deceased and that
their marriage was dissolved by customary evidence, however,
respondent No.1 could not establish the genuineness of Ex.B1
to substantiate that the marriage between petitioner and
deceased was dissolved by customer divorce. Furthermore, the
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respondent No.1 did not adduce any evidence in support of her
contention that she got divorced her first husband (Mardugonda
Rajiah) prior to her alleged second marriage with the deceased.
12. In this regard, the learned III Additional District Judge at
Karimnagar relied upon a decision of the Honourable Apex
Court in Subramani and others v. M. Chandralekha 1, wherein
it was observed that in the absence of pleadings that marriage
between the husband and wife could be dissolved in their
community under custom and in the absence of any satisfactory
evidence let into prove the custom prevalent in the community
or the procedure to be followed for dissolving the marriage, it
cannot be held that marriage between the respondent and her
husband stood dissolved by executing the marriage dissolution
deed Ex.B1 is in conformity with the custom applicable to
divorce in the community which the parties belong. The above
said decision is squarely applicable to the facts of the case on
hand.
13. The other contention of the learned counsel for the
respondent No.1 is that the documentary evidence under
Exs.B2 to B14 and also the proceedings of the Labour
Commissioner clearly shows that the respondent No.1 alone is
1 AIR 2005 Supreme Court 485
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entitled for succession certificate. When the respondent No.1
herself admitted that the petitioner is the wife of the deceased
and since the respondent No.1 failed to establish
Ex.B1/Ex.B18, respondent No.1 cannot be considered as class -
I heir of the deceased. Moreover, the respondent No.1 did not
adduce any documentary evidence like wedding card or any
other material to establish that she got married the deceased
after the alleged customary divorce between the petitioner and
deceased. The oral evidence of RWs 3 and 4 is not in
corroboration with the evidence of respondent No.1 as RW1.
Admittedly, the succession certificate granted in favour of
respondent No.1 in O.P.No.559 of 2000 was set aside by the
order dated 06.04.2005 of this Court in CMA No.4838 of 2004,
which was preferred by the petitioner and in the said order
Court observed as under:
"13. In view of the same, once it is established that the
appellant/petitioner is the legally wedded wife of the deceased
and the 1st respondent failed to prove the valid marriage
between herself and the deceased except living with the
deceased as wife, necessarily she has to implead the
petitioner/1st wife and the deceased's late mother, who are
entitled to succeed the estate of the deceased subject to proof of
divorce between the appellant and the deceased, in the
proceedings initiated for succession. Any succession certificate
obtained without inpleading the legal heirs knowingly that both
of them are made rival claims before the Controlling Authority
under Payment of Gratuity Act will amount to obtaining the
certificate fraudulently by concealment of some material facts."
14. As seen from the above, the petitioner was not impleaded
in O.P.No.559 of 2000 and moreover the respondent No.1 failed
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to establish her marriage with the deceased and respondent
No.1 is entitled for succession certificate subject to proof of
divorce between the petitioner and the deceased. But the
respondent No.1 failed to establish divorce between the
petitioner and deceased and also failed to establish her marriage
with the deceased. Even if the contention of the respondent
No.1 that she married the deceased, a second marriage
contracted by a Hindu during the subsistence of first marriage
is, null and void as per section 11 read with clause (i) of Section
5 of Hindu Marriage Act. In Yamanaji H. Jadhav. V. Nirmala 2
the Apex Court observed that as per the Hindu Law
administered by courts in India, divorce was not recognized as a
means to put an end to marriage, which was always considered
to be a sacrament, with only exception where it is recognized by
custom; public policy, good morals and the interests of society
were considered to require and ensure that, if at all, severance
should be allowed only in the manner and for the reason or
cause specified in law; thus such a custom being an exception
to the general law of divorce ought to have been specially
pleaded and established by the party propounding such custom
since said custom of divorce is contrary to the law of the land
and which, if not proved, will be a practice opposed to public
2 2002 (2) SCC 637
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policy. In such circumstances, the respondent No.1 is expected
to plead and establish that there is a custom of obtaining
customary divorce in their community and about the procedure
of obtaining such customary divorce. Since the respondent
No.1 failed to succeed in the above said two aspects and as the
petitioner succeeded in disproving Ex.B1/Ex.B18, the
respondent No.1 is not entitled for any relief.
15. In view of the above facts and circumstances, this Court
is of the considered opinion that the learned III Additional
District Judge at Karimnagar has passed the impugned order
after considering all the aspects and arrived to a right
conclusion. Hence, the impugned order does not require any
interference of this Court and thereby the Civil Miscellaneous
Appeal is liable to be dismissed.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed.
There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand
closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 11.01.2024
AS
