Mrs. Girja Bai and Another vs Sukhbati and Another

V.K. Shrivastava, J.—This revision is directed against the order dated 23-7-2001 passed by the Second Additional District Judge, Baloda Bazar, Dist. Raipur, in Misc. Civil Appeal No. 12/2001 vide which the order passed by Civil Judge, Class I, Baloda Bazar, in Succession Case No. 6/99, dated 12-1-2001 has been modified and direction has been issued to issue succession certificate in the names of applicant No. 2 Narendra Kumar and non-applicant No. 2 Beneshwari.

On the death of Sitaram Verma, applicants filed an application u/s 372 of the Indian Succession Act for grant of succession certificate for receiving the amount left by the deceased Sitaram Verma, stating that the applicant No. 1 is the legally wedded wife and applicant No. 2 is the legitimate son of deceased Sitaram Verma. Non-applicants objected the application and claimed that they are the successors of the property left by the deceased Sitaram and also submitted that the succession certificate may be issued for half the amount in favour of the applicants as well for half the amount in their favour.

Both the parties adduced their evidence in support of their case. Learned Trial Court held that the non- applicant/Objector No. 1 is not the legally wedded wife of deceased Sitaram Verma and non-applicant/Objector No. 2 is not his legitimate child whereas applicant No. 1 is legally married wife of deceased Sitaram Verma and applicant No. 2 is his legitimate son, therefore, vide order dated 12-1-2001 ordered to issue succession certificate in favour of the applicants. Objectors being aggrieved with the order, preferred an appeal that has been registered as Misc. Civil Appeal No. 12/2001. Second Additional District Judge, Baloda Bazar, taking shelter of Section 16 of the Hindu Marriage Act, declared applicant No. 2 and non-applicant No. 2 to be the successors of deceased Sitaram Verma, therefore, vide impugned order ordered for issuance of succession certificate in favour of applicant No. 2 and non-applicant/Objector No. 2.

Undisputedly, Sitaram Verma married to Girja Bai and during his lifetime contacted second marriage with Sukhbati/Objector. Both the Courts below held the marriage of Sukhbati with Sitaram Verma void. Lower Court, after appreciating the evidence held Girja Bai is the legally wedded wife of deceased Sitaram Verma, but the Appellate Court in its judgment at Para 12 described that Girja Bai in her cross-examination has stated that Sitaram Verma after his first wife, has married her by Choodi custom and it appears that only because of the said statement the Appellate Court held that Sitaram Verma contacted marriage with Girja Bai during life time of his first wife. The marriage of Sitaram Verma and Girja Bai can only be said to be void, if it is proved that when Sitaram Verma contacted marriage with Gifjabai, at that time his first wife was alive, but there is no evidence to suggest or prove that Sitaram Verma had a spouse living at the time of his marriage with Girja Bai, therefore, appreciation of evidence made by the First Appellate Court was perverse to the extent of declaring the marriage of Sitaram Verma with Girja Bai void.

It is not disputed that the applicant No. 2 Narendra Kumar and non-applicant No. 2 Beneshwari are son and daughter of Sitaram Verma. Narendra Kumar is the legitimate son whereas Beneshwari, according to Section 16 of the Hindu Marriage Act, shall be treated as legitimate daughter of Sitaram Verma for the purpose of succession. Therefore, for the property left by the deceased Sitaram Verma, Girja Bai, Narendra Kumar and Beneshwari were the successors and the First Appellate Court depriving of Smt. Girja Bai-applicant No. 1 from her legal right has committed gross error.

Admittedly, the Objectors have not filed any application for succession certificate in their favour as required u/s 372 of the Indian Succession Act. Therefore, despite the fact that non-applicant/objector No. 2 Beneshwari has 1/3rd right over the property left by the deceased Sitaram Verma, succession certificate could not be issued in her favour.

In the result, it is declared that both the applicants Smt. Girja Bai and Narendra Kumar and non-applicant No. 2/Objector Beneshwari are the legal heirs of the deceased Sitaram Verma and are entitled to inherit his properties in equal share. The succession certificate with protecting the right of non- applicant No. 2/Objector Beneshwari to the extent of her 1/3rd share shall be issued in favour of the applicants.

With the aforesaid modification, the revision is disposed of and the orders of both the Courts below are modified.

Parties to bear their own costs.