LALSA Vs. DISTRICT IVTH UPPER DISTRICT JUDGE BASTI

JUDGEMENT

(1.) By means of the present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 31-7-1997 passed by Civil Judge (Junior Division), Basti on a petition (Misc. Case No. 34 of 1980) under Section 371 of the Indian Succession Act (hereinafter referred to as 'the Act') granting certificate of succession in favour of Smt. Tirtha alias Tirthi alleged to be widow of Swaminath as well as the order dated 4-2-1999 passed by IVth Additional District Judge, Basti dismissing the appeal No. 89 of 1995 filed by the present petitioner.

(2.) Heard Sri O. P. Pandey, learned counsel for the petitioner and Sri Anand Kumar Gupta, who appeared at the initial stage on behalf of the respondent No. 3. Both the parties agreed that since the petitioner raises pure questions of law, it was not necessary to call for the counter-affidavit and it may be decided finally on the basis of the material available on record. Accordingly I proceed to decide the writ petition on merits at this stage.

(3.) One Swaminath son of Gokul was an employee in the Railway Department and at the relevant time, was posted at Gonda. He died on 25-12-1978. After his death, respondent No. 3 - Smt. Tirtha filed an application for issue of succession certificate in order to get payment of various dues on account of Provident Fund. Compulsory Deposit, Life Insurance, Arrears of Pay, Death-cum-Retirement Gratuity etc., totalling to Rs. 22,932.90p. The petitioner admittedly is the grandson of the real brother of the father of Swaminath and thus is real cousin nephew of the deceased. He filed an objection challenging the status of respondent No. 3 on the ground that she was not the widow of the deceased Swaminath as she was married to one Shankar son of Kalpanath and after his death, she contracted a Sagai marriage with Chetu, brother of her earlier husband - Shankar. After the death of Chetu, she is living with her parents. According to the petitioner, real wife of the deceased was Smt. Ramrani who left him during his life time and contracted Sagai marriage with one Asharfi Lal of another village. The petitioner claimed that he being the nearest legal heir of the deceased was entitled to get succession certificate. Both the parties led evidence before the trial Court in support of their respective contentions. After sifting and weighing the evidence on record the trial Court recorded a finding of fact that Smt. Tirtha-respondent No. 3 was the widow of Swaminath, deceased and that she was entitled to get the succession certificate. To challenge this finding, the petitioner preferred an appeal No. 89 of 1995, which was dismissed.