Vidyadhari
& Ors. Vs. Sukhrana Bai & Ors. [2008] Insc 78 (22 January 2008)
S.B.
Sinha & V.S. Sirpurkar
(Arising
out of SLP (C) No.6758 of 2007) V.S. SIRPURKAR,J.
1.
Leave granted.
2. A
common judgment of the High Court of Madhya Pradesh at Jabalpur, disposing of two Miscellaneous
Appeals is in challenge before us. The appeals were filed by one Smt.Sukhrana Bai
claiming herself to be the widow of one Sheetaldeen. Sheetaldeen was working as
a CCM Helper in Mines P.K.1 of the Western Coalfields at Pathakheda and died on
9.5.1993 while in service. Two separate applications came to be filed under
Section 372 of the Indian Succession Act for obtaining succession certificate
with respect to the movable properties of deceased Sheetaldeen, one of them was
filed by Vidhyadhari registered as Succession Case No.3/96 while the other came
to be filed by Sukhrana Bai which was registered as Succession Case No.10/95.
Both the cases were joined and tried together by the Trial Court which allowed
the application filed by Vidhyadhari (SC No.3/96) and dismissed the one filed
by Sukhrana Bai (SC No.10/95). Sukhrana Bai, therefore, filed two Miscellaneous
Appeals being MA 33/1998 and MA 43/1998 which came to be allowed by the High
Court in favour of Sukhrana Bai. Vidhyadhari, therefore, is before us in this
appeal. Before we proceed with the matter, a factual background would be
necessary.
3.
Admittedly, Sukhrana Bai was the first wife of Sheetaldeen, while during the
subsistence of this marriage, Sheetaldeen got married with Vidhyadhari. Two
sons and two daughters were born to Vidhyadhari, they being Smt.Savitri, Naresh
@ Ramesh, Ms.Chanda @ Durga and Baliram, while Sukhrana Bai does not have any
children.
4. Vidhyadhari
in her application before the Trial Court (SC No.3/96), besides herself,
disclosed the names of her children as the legal heirs of Sheetaldeen. It was
also revealed that deceased Sheetaldeen had nominated her for receiving amounts
under the Provident Fund, Family Pension Scheme and Coal Mines Deposits Life
Scheme. She also disclosed that she has received a sum of Rs.45036/- towards
gratuity amount of the deceased from the employer of Sheetaldeen, i.e., Western
Coalfields Ltd. She, therefore, claimed the Succession Certificate on the basis
of the nominations besides her marriage with Sheetaldeen.
5. As
stated above, both the Succession Cases came to be consolidated and tried
together. In SC No.10/95, filed by Sukhrana Bai, Vidhyadhari raised an
objection that Sukhrana Bai was not the heir of deceased Sheetaldeen and though
Sheetaldeen initially nominated Vidhyadhari to receive the dues after his death
as per Form A, subsequently he cancelled that nomination and filled in a second
Form A in which he had nominated Smt.Vidhyadhari and in description of his
family members he had indicated her to be the wife, one Naresh as his son and Ms.Chanda
@ Durga as his daughter. It was also pointed out that Sukhrana Bai had not
claimed any dues from the office of Sheetaldeen.
WCL
which is a party, contended that the non-applicant had no knowledge about the
valid marriage between the deceased and Sukhrana Bai and it was also admitted
that Sheetaldeen had nominated Vidhyadhari to receive the total amount and had
registered her as his nominee. Following issues came to be framed by the Trial
Court:
(1)
Whether the legal widow of the deceased Sheetaldeen is the applicant Smt.Sukhrana
of Case No.10/95 or Vidhyadhari of Case No.3/96?
(2)
Whether Smt.Savitri, Naresh aias Ramesh, Ms.Chanda alias Durga and Baliram, as
mentioned in the application of Case No.3/96 are the children of applicant Vidhyadhari,
sired by deceased Sheetaldeen?
(3) If
yes, whether they are the heirs of deceased Sheetaldeen?
(4)
For receiving the amount due to deceased Sheetaldeen, issuance of Succession
Certificate in whose favour would be just and proper?
(5)
Relief and expenses? Both oral and documentary evidence was led by both the
parties.
Sukhrana
Bai examined herself as AW1 along with three other witnesses, namely, Kanhaiyalal
(AW2), Ram Prasad (AW3) and Shivnath (AW4). On the basis of the evidence led,
the Trial Court held Vidhyadhari to be the legal widow of deceased Sheetaldeen.
It was also held that the children Smt.Savitri, Naresh @ Ramesh, Ms.Chanda @ Durga
and Baliram mentioned in SC No.3/96 were sired by deceased Sheetaldeen and were
his children. They were also held to be heirs of deceased Sheetaldeen.
The
Trial Court also held that the Succession Certificate was liable to be issued
in favour of Vidhyadhari and not in favour of Sukhrana Bai. In its judgment the
Trial Court referred to an admission made by Vidhyadhari in her affidavit
Exhibit C-7 wherein she had stated on oath that she is the second wife of Sheetaldeen
and Sukhrana Bai was the first wife. The Trial court also referred to the
proved fact that Sheetaldeen initially had nominated Sukharana Bai as a nominee
indicating her to be his wife in Form A. After discussing the voluminous oral
evidence led by the parties, the Trial Court held that Sukhrana Bai was earlier
married to Sheetaldeen and there were no issues out of this wedlock and
thereafter Sheetaldeen married Vidhyadhari and for about 20 to 25 years he
lived with Vidhyadhari till his death while Sukhrana Bai never came to stay
with him. The observation of the Trial Court in para 18 of the its Judgment is
as under:
which
means that either Sukhrana Devi deserted him or Sheetaldeen left her. The
Trial Court then proceeded to hold in Para 19 that Sheetaldeen belonged to the
Shudra community and in Shudra community if the wife deserts her
husband and no effort is made by the husband to take her back as his wife then
under Hindu law it is presumed that divorce has taken place between the two, as
has been held by the Supreme Court in Govind Raju vs. K. Muni Swami Gonder
& Ors. [AIR 1997 SC 10]. A finding was given that Sheetaldeen had divorced Sukhrana
Bai and solemnized second marriage with Vidhyadhari and, therefore, the
marriage of Vidhyadhari could not be said to be illegal. On that basis the
Trial Court excluded the claim of Sukhrana Bai and granted the claim of Vidhyadhari
holding that she was entitled to receive the amount of Rs.1,30,000/- from WCL
towards Sheetaldeens Provident Fund, Life Cover Scheme, Pension and amount
of Life Insurance and amount of other dues payable to the successor of Sheetaldeen
on his death. It was also observed in para 23 as under:
.In
that amount, applicant Vidhyadhari and her sons and daughters will have equal
share. On receipt of the said amount, applicant Vidhyadhari shall distribute
the amount to her sons and daughters as per their share.. Resultantly the
Trial Court dismissed Sukhrana Bais application.
6. The
High Court, however, concluded that the theory of customary divorce between Sukhrana
Bai and Sheetaldeen was a myth. It was noted that there was no evidence on
record to hold that customary divorce had taken place between Sukhrana Bai and Sheetaldeen
nor was there any pleading about the factum of any customary divorce or
existence of any custom. Relying on a reported decision in Smt.Savitri Devi v. Manorama
Bai [AIR 1998 MP 114], the High Court came to the conclusion that the alleged
customary divorce between Sukhrana Bai and deceased Sheetaldeen was not
established. Stopping here itself, the High Court allowed both the appeals and
directed that the Succession Certificate should be granted in favour of Sukhrana
Bai.
7.
Learned counsel appearing for the appellant Vidhyadhari strenuously urged that
the High Court could not have straightaway granted the claim of Sukharana Bai.
Learned counsel pointed out that in grant of certificate in favour of Sukhranai
Bai, the claim of four children was altogether ignored as, admittedly, Sukhrana
Bai had sought the certificate for herself alone.
Learned
counsel points out that even if the theory of divorce between Sukhrana Bai and Sheetaldeen
is described and even if Vidhyadhari is not held to be his legal wife since the
children admittedly were sired by Sheetaldeen, they were legitimate children
entitled to inherit Sheetaldeen.
On
this point, learned counsel relied on Rameshwari Devi v. State of Bihar &
Ors. [(2000) 2 SCC 431]. Learned counsel pointed out that in her application Vidhyadhari
had specifically mentioned the names of four children as the legal heirs
besides herself, while Sukhrana Bai had claimed that she was the only legal
heir of Sheetaldeen. Learned counsel tried to urge, relying on a reported
decision in Yamanji H. Jadhav v. Nirmala [(2002) 2 SCC 637], that in this case
the customary divorce should have been held to be proved.
8. As
against this, learned counsel appearing for respondent Sukhrana Bai supported
the judgment of the High Court and contended that she being the only legal heir
of deceased Sheetaldeen, she alone was entitled to the grant of Succession
Certificate as ordered by the High Court.
9.
There can be no dispute that Vidhyadhari had never pleaded any divorce, much
less customary divorce between Sukhrana Bai and Sheetaldeen. There were no
pleadings and hence no issue arose on that count. In our opinion, therefore,
the High Court was right in holding that marriage between Sukhrana Bai and Sheetaldeen
was very much subsisting when Sheetaldeen got married to Vidhyadhari. Learned
counsel tried to rely on the reported decision in Govind Rajus case
(supra). We are afraid the decision is of no help to the respondent as
basically the issue in that decision was about the legitimacy of the children
born to a mother whose first marriage was not dissolved and yet she had
contracted the second marriage. This is apart from the fact that in the present
case there were no pleadings about the existence of custom and alleged divorce thereunder.
Therefore, there was no evidence led on that issue. In our opinion the decision
in Govind Rajus case is not applicable. Even the other decision in Yamanajis
case is not applicable as the facts are entirely different. In Yamanjis
case there was a Deed of Divorce executed by the wife. The question was whether
there was a customary divorce. There was a custom permitting divorce by
executing deed existing in the community to which the parties belonged. Such is
not the situation here.
There
is neither any Divorce Deed nor even the assertion on the part of Vidhyadhari
that Sheetaldeen had divorced Sukhrana Bai. We, therefore, accept the finding
of the High Court that Sukhrana Bai was the legally wedded wife while Vidhyadhar
could not claim that status.
10.
However, unfortunately, the High Court stopped there only and did not consider
the question as to whether inspite of this factual scenario Vidhyadhari could
be rendered the Succession Certificate. The High Court almost presumed that
Succession Certificate can be applied for only by the legally wedded wife to
the exclusion of anybody else. The High Court completely ignored the admitted
situation that this Succession Certificate was for the purposes of collecting
the Provident Fund, Life Cover Scheme, Pension and amount of Life Insurance and
amount of other dues in the nature of death benefits of Sheetaldeen. That Vidhyadhari
was a nominee is not disputed by anyone and is, therefore proved. Vidhyadhari
had claimed the Succession Certificate mentioning therein the names of four
children whose status as legitimate children of Sheetaldeen could not and
cannot be disputed. This Court in a reported decision in Rameshwari Devis
case (supra) has held that even if a Government Servant had contracted second
marriage during the subsistence of his first marriage, children born out of
such second marriage would still be legitimate though the second marriage
itself would be void. The Court, therefore, went on to hold that such children
would be entitled to the pension but not the second wife. It was, therefore,
bound to be considered by the High Court as to whether Vidhyadhari being the
nominee of Sheetaldeen could legitimately file an application for Succession
Certificate and could be granted the same. The law is clear on this issue that
a nominee like Vidhyadhari who was claiming the death benefits arising out of
the employment can always file an application under Section 372 of the Indian
Succession Act as there is nothing in that Section to prevent such a nominee
from claiming the certificate on the basis of nomination. The High Court should
have realised that Vidhyadhari was not only a nominee but also was the mother
of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and
whose names were also found in Form A which was the declaration of Sheetaldeen
during his life-time. In her application Vidhyadhari candidly pointed out the
names of the four children as the legal heirs of Sheetaldeen. No doubt that she
herself has claimed to be a legal heir which status she could not claim but
besides that she had the status of a nominee of Sheetaldeen. She continued to
stay with Sheetaldeen as his wife for long time and was a person of confidence
for Sheetaldeen who had nominated her for his Provident Fund, Life Cover
Scheme, Pension and amount of Life Insurance and amount of other dues. Under
such circumstances she was always preferable even to the legally wedded wife like
Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone
to the extent of claiming the Succession Certificate to the exclusion of legal
heirs of Sheetaldeen. In the grant of Succession Certificate the court has to
use its discretion where the rival claims, as in this case, are made for the
Succession Certificate for the properties of the deceased. The High Court
should have taken into consideration these crucial circumstances. Merely
because Sukhrana Bai was the legally wedded wife that by itself did not entitle
her to a Succession Certificate in comparison to Vidhyadhari who all through
had stayed as the wife of Sheetaldeen, had born his four children and had
claimed a Succession Certificate on behalf children also. In our opinion, the
High Court was not justified in granting the claim of Sukhrana Bai to the
exclusion not only of the nominee of Sheetaldeen but also to the exclusion of
his legitimate legal heirs.
11.
Therefore, though we agree with the High Court that Sukhrana Bai was the only
legitimate wife yet, we would chose to grant the certificate in favour of Vidhyadhari
who was his nominee and the mother of his four children. However, we must
balance the equities as Sukhrana Bai is also one of the legal heirs and besides
the four children she would have the equal share in Sheetaldeens estate
which would be 1/5th. To balance the equities we would, therefore, chose to
grant Succession Certificate to Vidhyadhari but with a rider that she would
protect the 1/5th share of Sukhrana Bai in Sheetaldeens properties and
would hand over the same to her. As the nominee she would hold the 1/5th share
of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai.
We direct that for this purpose she would give a security in the Trial Court to
the satisfaction of the Trial Court.
13. It
should not be understood by the above that we are, in any way, deciding the
status of Vidhadhari finally. She may still prosecute her own remedies for
establishing her own status independently of these proceedings.
14. In
the result the appeal is allowed. In the facts and circumstances of the case,
there will be no order as to costs.
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