GURUBASAWWA Vs. IRAWWA

JUDGEMENT

(1.) The appellant has filed this appeal under Sections 299 and 384 of the Indian Succession Act, being aggrieved by the Judgment and Order dated 17-1-92 passed in P and S.C. 6/ 89 on the file of the Addl. Munsiff, Bijapur.

(2.) The brief fact leading to this appeal are one Chinnappa Basettappa Borashetti was working as a lineman in the Telecommunication Department. He married the respondent No. 1 in the year 1970 at Sitimani and the marriage was solemnized according to Hindu Lingayath custom. From the said legal wedlock respdndents 2 to 4 born to them. It is also stated that Chinnappa had married appellants Nos. 1 and 2 issues were born (including R-5 and a son) from the said legal wedlock. However, the whereabouts of the son are not known for the last 12 years. It is further stated that during the year 1969 the marriage between the appellant and Chinnappa was dissolved under mutual consent and entered into a registered agreement dated 10-3-69. Thereafter, respondent No. 1 ceased to be the wife of Chinnappa. Respondent No.2 is married. In the year 1982 Chinnappa nominated the petitioners as per Rule 53 of the Central Civil Service Pension Rules, 1972 which is recorded in his service book. He died an 29-6-1985 at Hanamasagar in Raichur District while he was in service. Respondents 1 to 4 claim that they are entitled for Death-cum-Retirement Gratuity and Pensionary benefits as per Rule 50(b) and 51(I) of the Central Civil Service Pension Rules, 1972. The appellant also claimed such benefits by making representations. In view of rival claims, the Department insisted the respondent No. 1 to produce the Succession Certificate. Therefore, she filed an application in the Court of the Addl. Munsiff at Bijapur for a Succession Certificate which was registered as P and S.C. 6/ 1989. This petition was resisted by the respondents inter alia contending that she continued to be the wife of deceased Chinnappa as no divorce had taken place. In view of that, she also contended that the applicant was not the wife of the deceased Chinnappa. Further, it is contended that the respondent No.1 had already married another man Malkajappa during the subsistence of that marriage, she claimed to have married Chinnappa without a valid divorce. On that ground also she is not the wife of Chinnappa. Among other things she has claimed that the respondent is not entitled for Succession Certificate.

(3.) In support of her case, the respondent has examined witnesses and got marked documents on her behalf. Similarly, the appellant also examined witnesses and documents were marked. After considering both oral and documentary evidence the Court has held as follows : the operative portion of the order reads :"The petition is allowed in part.The petitioners are entitled to Succession Certificate in respect of 2/3 shares in the Schedule amount along with interest accrued thereon and respondent Nos. 1 and 2 are entitled to Succession Certificate in respect of 1 / 6th share each in schedule amount along with interest accrued thereon.Issue Succession Certificate in the name of petitioner No. 1 for self and on behalf of petitioners 2 to 4 to the extent of 2/ 3 shares as declared above;Issue Succession Certificate in favour of respondents 1 and to the extent of 1/6th share each as declared above on their paying requisite Court-fee in this behalf.The parties shall bear their own costs" This judgment has been assailed by the appellant. .