Leena vs Devesh Kumar and Another

S.C. Sinho, J.

This revision u/s 115 of CPC has been filed against the order dated 4-7-2005 passed by the District Judge, Seoni in Miscellaneous Civil Appeal No. 13/06 by which appeal of applicant u/s 384 of the Indian Succession Act challenging the order dated 28-2-2005 passed by the 1st Civil Judge, Class I, in Succession Case No. 35/02 granting a succession certificate in Respondent''s favour on his application filed u/s 372 of the Act, has been dismissed.

It is not in dispute that deceased Vijay Kumar Dixit was a lab technician in Health and Medical Department, Ugli and he died on 28-11-2002 and Respondent No. 1 Devesh Kumar @ Sonu Dixit is his son. Vijay Kumar Dixit nominated his son Devesh Kumar Dixit in the nomination paper as his nominee on 28-5-2002 and later on nominated applicant and non-applicant No. 1 for amount of 50% each.

The case of the applicant, in brief, is that Respondent No. 1 has filed an application u/s 372 of the Indian Succession Act on 23-12-2002 submitting inter alia that his father died during the course of service on 28-11-2002 and his mother died on 2-3-1992, therefore, only he is entitled for the benefits and funds of his father and accordingly prayed for a succession certificate.

Upon filing of the application by the Respondent as aforesaid, objection was invited by publication in the daily newspaper on 15-2-2003 whereupon the applicant submitted her objection before the Court below submitting inter alia that she is a legally married wife of late Vijay Kumar Dixit her marriage having been duly performed with him on 30-1-1996 before the Collector, Mandla and hence she is entitled to get the 50% benefit funds due to death of Shri Vijay Kumar Dixit as per nomination papers.

Upon hearing parties, by order dated 28-2-2005, the trial Court held that nomination in favour of applicant is illegal and her marriage with late Vijay Kumar Dixit was not in accordance with law in absence of production of any document relating to divorce from her previous husband Leeladhar. The trial Court ordered for issuance of succession certificate in favour of Respondent No. 1.

The Courts below have appreciated the evidence adduced by both the parties and held that applicant Leena was already married to Leeladhar and she has not taken divorce from him. In these circumstances only on the basis of this that she has performed marriage before Collector/Marriage Officer with late Vijay Dixit, her marriage will not become valid. The Appellate Court held that in judgment (passed by Second Civil Judge Class - II, Mandla in Civil Suit No. 92-A/94) the marriage of applicant with her previous husband Leeladhar was declared as invalid. In this respect learned Appellate Court has specifically held that applicant is a Christian lady, married Leeladhar who was Hindu. In these circumstances, only the District Judge was competent to grant decree of divorce in view of Section 27 of the Special Marriage Act, 1954 and if applicant has opted Hindu religion even then only the District Judge was competent to grant decree of divorce under the Hindu Marriage Act, 1955.

Thus, there is concurrent finding of fact of the Courts below that applicant is not legally wedded wife of deceased Vijay Dixit because she had not taken divorce from her first husband Leeladhar. In paragraphs 8 and 10 of the Appellate Court order as well as in the trial Court''s order it is specifically held that applicant is not legally wedded wife of late Vijay Dixit. In these circumstances this Revisional Court cannot interfere in the concurrent findings of the two Courts below.

The Appellate Court has already held that the applicant is free to file a declaratory suit for declaration that she is the legal heir of late-Vijay Dixit. The Division Bench of this High Court in Savitri Devi v. Smt. Manorama Bai, 1998 (1) MPU 254 has already taken the view that a separate suit is maintainable for challenging the succession certificate. Section 387 of the Act enables applicant to file a regular suit in Civil Court on the same question and so the decision of the Civil Court will ultimately affect the succession certificate already granted.

In view of the above legal position the proper remedy for the applicant is to file the declaratory suit challenging the Succession Certificate.

In view of the above discussion on facts and circumstances of the present case, the finding recorded vide impugned judgment passed by A.D.J, in M.C.A. No. 13/06 does not suffer from any material irregularity. The revision fails and is dismissed. Parties to bear their own costs.