Gowramma and another vs K. Savithramma and others

L. Narayana Swamy, J.—This appeal is filed by the respondents in M.A No. 12/2009 being aggrieved of the judgment and decree dated 28.10.2010 passed by the learned Civil Judge (Sr.Dn.) Maddur, allowing the said appeal and ordering for grant of succession certificate in favour of appellants therein. The said Misc. Appeal was directed as against the common judgment passed in P & SC Nos. 5 & 6 of 2007 filed under Section 372 of Indian Succession Act seeking succession certificate. By the judgment and decree dated 21.3.2009 the learned Additional Civil Judge (J.D.) & J.M.F.C., Maddur was pleased to allow P & SC No.6 of 2007 and dismiss P & SC No.5 of 2007.

The facts of the case to be stated in brief are that petitioners in P & SC No.5/2007 sought succession certificate on the ground that they are the legally wedded wife and son of T.C. Nagaraju who was working as Physical Education Instructor in Government School, K. Honnalagere village, Maddur Taluk The deceased Nagaraju died while in service on 4.3.2007 leaving behind them as his legal heirs. The petitioners required the succession certificate to claim the death benefits of I.C. Nagaraju.

On the other hand, the petitioners in P & SC No.6/2007 sought the succession certificate on the ground that the deceased Nagaraju married the petitioner No. 1 on 12.12.1982 at Mangaji Meese Lakshmi Dandosa Choultry, Gavipura Guttahalli, Bangalore and out of the said wedlock 2nd petitioner was horn on 10.9.1983. However, after three of marriage, the relationship between the petitioners and deceased Nagaraju was broken because of dowry harassment and petitioners started staying at her parents house. Without dissolving the marriage tie with the first petitioner, the deceased contacted the 2nd marriage with the petitioner No. 1 in P & SC No.5/2007 and out of the said wedlock 2nd petitioner therein was born. The petitioners herein claimed maintenance in C. Misc. 3/88 as against the deceased which was allowed at the rate of Rs. 300 and Rs.200 respectively and after petitioner No.2 attained majority petitioner No. 1 was receiving monthly maintenance of Rs.800/- from deceased Nagaraju. The petitioners claimed they are the legal heirs of Nagaraju and they are alone entitled to the death benefits of Nagaraju.

For the sake of convenience, the petitioners in P & SC No.6/2007 would be referred to as the petitioners and petitioners in P & SC No.5/2007 would be referred as respondents in the course of this judgment The trial court ordered for issue of succession certificate in favour of the petitioners Aggrieved by the same, the respondents preferred M.A. No. 12/2009 which came to be allowed and succession certificate win ordered to be issued to the respondents. Being aggrieved, the petitioners are in the present second appeal.

This court while admitting the present second appeal framed the following substantial question of law for consideration:

"Whether in the grant or otherwise of a succession certificate, the court could have entered upon the intricate question of the validity of the marriage of the applicant (ought to be appellant) and thereafter rejected the application while conferring the succession certificate on Respondent No.3 (ought to be respondent Nos. 1 & 2) and hold against the present appellant?"

I have heard the learned counsel for the appellants as well as respondents and perused the entire records.

The trial court while granting the succession certificate in favour of the petitioners considered the date of the earlier marriage of the petitioner and grant of maintenance in favour of the petitioners. The trial court further referred that relationship between the petitioners and deceased was concluded in the maintenance proceedings. The trial court also relied upon the marriage certificate produced by the petitioners. The marriage of the respondent is a second marriage and therefore in law it cannot be recognised for grant of succession certificate. Thus the succession certificate was ordered to be issued in favour of the petitioners.

The lower appellate court disagreed with the findings of the trial court on the ground that in a maintenance proceedings summary enquiry is prescribed and for a limited purpose of finding whether the petitioners are entitled for maintenance, the relationship aspect would be considered and that cannot be taken as a conclusive proof to determine the relationship. In the process, the lower appellate court considered the suit O.S No. 186/2006 filed by the husband of respondent against the petitioners for declaration that petitioners are not the wife and son and so called marriage certificate is not a marriage certificate in the eye of law and also the criminal petition No.22/1993 filed by the deceased challenging grant of maintenance in favour of the petitioners.

The petitioner No. 1 was examined as PW-1 and got marked five documents as Ex.P1 to P5. PW-1 asserted that she is an illiterate lady and permanent resident of Gejjalagere village right from her birth. Her husband T.C. Nagaraju was residing with her for a period of 5 years in her parents� house. She does not know where T.C. Nagaraju was residing prior to her marriage with him and again deposed that he was residing at Leelavathi Extension, Maddur at that time and temporarily working at Thoresettihalli School. Neither herself nor her father have gone to the house of deceased T.C. Nagaraju�s parents house. Prior to her marriage with T.C. Nagaraju Ins parents did not come to her house and somebody else were accompanied him. She did not state who were those somebody else. She has stated that tit the time of registration of her marriage, she has given her Gejjalagere address before concerned Registrar of marriage. She does not know what is the address given by her husband. Their marriage was registered at Bangalore, they were not having difficulty to get the marriage registered at Maddur. At the time, of registration of marriage her elder sister by name Chikkamma was present. On behalf of her husband, his friends were present Site does not know their names. She could not state name of the choultry. At one breath she stated photos were taken but in another breath stated photos were not taken at the time of marriage but they subsequently taken their photo.

PW-1 further staled that at the time of registration of marriage, they have not at till produced their photographs. She does not know whether there is no reference about her father�s name in Ex.P1 and her address is shown as No.278, Pam pa Mahakavi Road, Shankarapura, Bangalore - 4. She does not know non-mentioning of name of father of her husband. His address is shown as No. 168, 2nd Cross, Chamarajapet. Bangalore-80. PW-1 has denied the suggestion that one Nataraju of Thoreshettihalli was her husband and 2nd petitioner is his son. She denied that her son took treatment between 16.1.1986 and 21.1.1986 and that his father''s name was shown as Nataraju. Since she refused to put her signature for second marriage, her husband T.C. Nagaraju deserted her.

PW-1 further deposed that she has not given any complaint to school authorities regarding their desertion by T.C. Nagaraju. No Panchayat was also convened in this regard. When her son was aged about 2-3 years, she came to know that her husband convened 2nd marriage.

PW-1 denied that various cases have been registered against her under Prevention of Illegal Trafficking Act and categorically deposed that said cases were created against her. PW-1 denied that in criminal complaint 248/2005 filed against her and others, her husband�s name is shown as Nataraju. She has also denied that in the said case, she pleaded guilty and convicted with fine so also various other criminal cases adjudicated before the courts at Mandya and Maddur. PW-1 admits that the advocate now representing before trial court was contesting the case on behalf of T.C. Nagaraju in maintenance case. She does not know that said Nagaraju got married to first respondent on 9.6.1992 and she is having a son 2nd respondent. She is not aware that during the life time of deceased Nagaraju first respondent was availing his salary by holding a joint account along with him and in all the bank records and other necessary documents the first respondent is shown as wife of T.C. Nagaraju. To the suggestion that respondents have performed the last rites, PW-1 has stated that even she has performed the same.

The marriage certificate Ex.P1 did not contain neither name of the petitioner No.1 nor that of T.C. Nagaraju. The address shown therein for both is that of Bangalore whereas she has deposed in the present proceedings that since the date of her birth she is permanently residing at Gejjalagere. Though father of petitioner No.1 was alive, she was represented by her sister Chikkamma as guardian and one M.P. Papanna resident of Chamarajpet is shown as guardian of T.C. Nagaraju. No reasons are forthcoming as to non mentioning the name of her father in the marriage certificate. She has also not produced any document to show her marriage having taken place, in the said Choultry at Gavipuram Guttahalli. No reasons are also assigned why marriage was registered in Bangalore when they are residents of Maddur Taluk.

Considering the above materials on record, the lower appellate court came to the conclusion that petitioner No.1 is not the dharmapatni of T.C. Nagaraju. When T.C. Nagaraju was unemployed PW-1 was not with him. When T.C. Nagaraju died at District Hospital, Mandya PW-1 the so called first wife was not at all with him. Whether PW-1 actually attended the funeral of her husband is neither revealed nor whispered by PW-1. PW-1 is also not aware where her husband and his parents were actually residing. Considering the materials on record, the lower appellate court has come to correct conclusion that it was not probable to hold that the petitioner No. 1 was the legally wedded wife. Neither father nor mother of the PW-1 was examined to prove the marriage certificate. The marriage certificate contained so many lacuna rendering it to be unacceptable. Therefore, the lower appellate court, though not specifically discarded to consider Ex.P1 the marriage certificate, has not taken it into consideration in favour of PW 1 to prove her marriage. Several circumstances as narrated in paragraphs 18 to 27 of the judgment are considered by the lower appellate court to hold that the petitioners are not entitled to succession certificate. Therefore, the marriage certificate is held to have not proved the marriage of the petitioner No. 1 with the deceased. Accordingly, the substantial question of law framed for consideration is answered.

For the above reasons, I am of the view that the lower appellate court has properly and in detail appreciated the materials both oral and documentary on record and has reached to correct conclusions. There is no merit in the contentions raised by the appellants. The regular second appeal fails and it is accordingly.