MITHILA DUBEY Vs. SHANTI BAI

JUDGEMENT

(1.) SHRI R.K. Kesharwani, learned counsel for the applicants pray that this revision may be heard finally at the stage of admission. Prayer is not opposed by Shri H.B. Agrawal, learned Senior Advocate for the non-applicants. Heard. Brief facts are that deceased Premraj Rajeshwar Dubey was working as a peon in Chhattisgarh State Electricity Board, Korba (West). He had nominated the applicants i.e his wife and children as nominees in the service record. On his death on 7.4.2004, the department asked for a succession certificate from the applicants herein who filed an application under Section 372 of the Indian Succession Act before Civil Judge, Class-I, Katghora, District Korba in Succession Case No. 16/2004. The non-applicants herein resisted the application on the ground that non-applicant- Shanti Bai was wife of the deceased Premraj who had executed a will in favors of the non-applicants prior to his death. The learned Civil Judge, Class-I, Katghora on appreciation of evidence adduced by the parties held that the applicant Mithila Dubey was the legally married wife of the deceased and the applicants No.2 to 4 were children of the deceased. It was held mat the non-applicant No. 1 Shanti Bai was not the legally married wife of the deceased and the non-applicant No.2 Vinod was not the son of the deceased however the execution of a will by deceased Premraj in favor of the non-applicants was established. It also took into consideration that the applicant-Mithila Dubey had admitted in cross-examination that she had lived with her husband Premraj only for a period of five years after her marriage and thereafter, she was living separately in her maternal home since about 11 years with her children and had no relationship with her husband during this period. On these premiss, the learned Civil Judge, Class-I, katghora ordered issuance of a succession certificate in favour of the non-applicants for receiving the amount of Rs. 2,10.023/- from the Chhattisgarh State Electricity Board.

(2.) AGGRIEVED by the above order, the applicants herein preferred Miscellaneous Civil Appeal No. 02/2006 before the District Judge, Korba. The District Judge, Korba after an elaborate discussion of the evidence adduced by the parties affirmed the findings recorded by the learned Civil Judge Class-I, katghora and dismissed the appeal. Shri R.K. Kesharwani, learned counsel for the applicants has not been able to show that the 1 st Appellate Court has exercised its jurisdiction either illegally or with material irregularity. The finding of execution of will by the deceased in favour of the non-applicants based on the testimony of attesting witness Ram Lai and another witness Ganpat Singh can also not be faulted with. Both the Courts below have rightly taken into consideration the fact that Mithila Dubey had separated form her husband (deceased) and was living in her maternal home since 11-12 years. The execution of will by the deceased in favour of the non-applicants has thus been proved prima facie by the non-applicants. There is thus nothing on record to show that the 1 st Appellate Court has exercised its jurisdiction either illegally or with material irregularity. That being so this Civil Revision is liable to be dismissed at the stage of admission being devoid of any merit. Proceedings under Section 372 of the Indian Secession Act are of a summary nature. Under Section 373 Sub Clause (3) while deciding entitlement to the issuance of a succession certificate, the Court is required to consider prima facie the best tile thereto. While deciding an application under Section 372 of the Indian Succession Act, 1925, the Court is required to come to a conclusion as to which of the parties has prima facie the best title to the securities in respect of which the certificate is applied for. The evidence led by the non-applicants prima-facie shows that the non-applicant No. 1 Shanti Bai was living with Premraj as his wife since long. In view of the fact that the applicant Mithila Dubey had admitted that she had separated from the deceased over a period of 11 years and had no relationship with him, the execution of will by the deceased in favour of Shanti Bai who was living with the deceased since many years as his wife appears to be prima facie true. In this view of the matter, the finding recorded by both the Courts below that the non-applicants had prima facie the best title to the issuance of a succession certificate in their favour cannot be faulted with. Shri R.K. Kesharwani learned counsel for the applicants has stated that the applicants have filed. a Civil Suit No. 17-A/1 996 against the non-applicants for declaration that will dated 5.3.2004 executed by Premraj Rajeshwar Dubey is null and void and that the applicants are legal heirs of the deceased Premraj Rajeshwar Dubey and also for grant of permanent injunction against the execution of the impugned orders. Under Section 387 of the Indian Succession Act, 1925 any question of right between any parties decided on an applicantion under-Section 372 of the Indian Succession Act, 1925 does not operate as a bar to the trial of the same question in any suit or in any other proceeding between the same parties. It is open to the applicants to pray for an appropriate legal remedy in Civil Suit No. 17-A/1 996. The applicants having failed to demonstrate that exercise of jurisdiction by the 1 st Appellate Court was illegal or with material irregularity, Civil revision is liable to be dismissed. Consequently this Civil Revision is dismissed as being devoid of any merit. In view of above, the applications M.(C.).P. No. 1325/2006 for grant of ad-interim order also stands dismissed. Revision Rejected.