RITA RANI Vs. TANU CHAUHAN

JUDGEMENT

(1.) THE petitioner Smt. Rita Rani claims herself to be widow of Surendra Kumar Beri. After the death of said Surendra Kumar Beri on 1 -2 -2001, the petitioner filed an application under the Indian Succession Act for grant of succession certificate on 19 -2 -2001. In the said application, under the column of persons related to the deceased, the petitioner had given her own name and that of her daughter alone and no one else. Admittedly, respondent No. 1 Tanu Chauhan is the daughter of the petitioner but not through Surendra Kumar Beri, although in the description of the array of parties it has been shown that she is the daughter of late Surendra Kumar Beri. While the said proceedings were pending before the trial Court, the respondent No. 2 Smt. Harvansh Kaur Beri filed an application for impleadment, on the ground that she had got married to the said late Surendra Kumar Beri on 9 -2 -1968. Thereafter the said respondent No. 2 also filed a separate application for grant of succession certificate in her favour. Both the applications, one filed by Rita Rani (petitioner) and the other filed by Harvansh Kaur Beri (respondent No. 2), were heard together. By a detailed order dated 17 -3 -2004, the application of the petitioner Rita Rani was rejected and that of respondent No. 2 Harvansh Kaur Beri was allowed. Aggrieved by the said order the petitioner filed a Civil Appeal No. 22 of 2004 before the District Judge, Saharanpur, which is now pending before the Additional District Judge, Court No. 6, Saharanpur. During the pendency of the said appeal the petitioner filed an application for accepting certain additional documents and affidavits on record to prove the case of the petitioner that she had got married to late Surendra Kumar Beri on 17 -12 -1986 as per the Arya Samaj rituals, which contention of the petitioner had been rejected by the trial Court on the ground that the same was not proved. By the impugned order dated 31 -8 -2004 the appellate Court has rejected the said application. Aggrieved by the said order the petitioner has filed this writ petition.

(2.) I have heard Sri M.K. Gupta, learned Counsel appearing for the petitioner as well as Sri N.C. Rajvanshi, learned Senior Counsel, assisted by Sri Madhusudan Dixit, learned Counsel appearing for the contesting respondent No. 2. No one has put in appearance on behalf of respondent No. 1 despite notice to the said respondent. Even otherwise, the interest of the petitioner and the respondent No. 1 are common, so much so that the affdavit in support of the writ petition has been filed by the husband of the petitioner No. 1 (sic respondent No. 1). Counter and rejoinder affidavits have been exchanged between the contesting parties and with the consent of their Counsel, this writ petition is being disposed of at the admission stage.

(3.) IT is admitted to the petitioner that late Surendra Kumar Beri was married to respondent No. 2 on 9 -2 -1968. The petitioner had allegedly got married to said Surendra Kumar Beri in the year 1986 and that too by Arya Samaj rites which, before the trial Court, she was unable to prove by any cogent evidence. The only ground taken for not having filed the relevant documents and affidavits in support of her marriage before the trial Court is because of lack of legal advice given to her by her Counsel appearing before the trial Court. In this regard the appellate Court has rightly observed that since the Counsel appearing for the petitioner before the trial Court as well as the appellate Court was the same, thus such a ground of lack of advice would not be available to the petitioner. Even otherwise, it is a matter of common knowledge that if a party takes a stand before a Court of law, it is his/her duty to prove the same by whatever best evidence which may be available with such party. It is not the case that the petitioner did not then have any such documents, or could not have produced such evidence, before the trial Court. The party cannot be permitted to better his case by filing additional documents and evidence at the appellate stage, after a finding has been recorded against him by the trial Court.