GANDHI DEMUDAMMA Vs. GANDI JAYALAXMI

JUDGEMENT

(1.) This LPA is filed against the order in CMA No. 315 of 1991 dated 12-12-1991 wherein a learned single Judge of this Court while upholding the Succession Certificate given in favour of the appellants herein under Section 373 of the Indian Succession Act, 1925 directed the appellants to deposit Rs. 22,000/- towards the share of the respondents within two weeks from the date of the judgment and also permitted them to withdraw the same on furnishing security.

(2.) Mr. Rudra Prasad, learned counsel for the appellants strenuously contends that when once the learned Single Judge upheld the Succession Certificate given in favour of his clients, gravely erred in directing his clients to deposit an amount of Rs. 22,000/-in The Court and in permitting the respondents to withdraw the same.

(3.) The facts of this case are that one Mr. Atchaiah who is an employee in A.P. State Electricity Board married the 1st respondent and through her he begotten the respondents 2 and 3 and after some time it seemed some disputes have arisen between the 1st respondent and the late Atchaiah and the 1st respondent filed O.S. No. 489 of 1971 against Atchaiah seeking maintenance for herself as well as her children on the file of 1st Additional District Munsif, Visakhapatnam. The learned magistrate granted Rs. 30A as maintenance to respondent No. 1 and Rs. 22.50 paise for each of the children per month. While the execution petition is pending, the authorities seemed to have entered into an agreement on 7-12-1973 wherein the 1st respondent agreed to receive Rs. 4,000/- in lump sum towards past and future maintenance and a thatched house in Kancharapalem. The case of the appellants is that the said agreement was filed in execution petition by filing E.A.No.235 of 1974 while the affidavit, petition and Xerox copy of the agreement were filed in the Court as exhibits, the appellants did not chose to file the order that was passed by the executing Court in that E.P. Be that as it may, the parties seemed to be living together after estrangement and in fact the 1st respondent gave birth to respondents 4 to 6. At the same time, late Atchaiah was also living with the 1st appellant and the appellant did not speak of her marriage with late Atchaiah. The case of the appellants is that after late Atchaiah divorced the 1st respondent, the 1st appellant herein was married to him and she gave birth to appellants 2 to 6. At the same time, there is no proof of her marriage with late Atchaiah. On the other hand, the admitted case is that the 1st appellant was given in marriage to PW-2 when she was minor and after she became major she started living with late Atchaiah while he was living with his married wife. Be that as it may, we need not go into that controversy here for the simple reason that even children born to a concubine are treated as legal heirs in Hindu Law. After the death of Atchaiah, the appellants approached the M.R.O for issuance of a Legal Heir Certificates and the M.R.O informed them that the respondents also filed their objections seeking Legal Heir Certificate and as such he cannot give the certificates to them. In those circumstances, they filed OP. No. 155/1988 seeking Succession Certificate under Section 373 of the Indian Succession Act and the District Judge by his order dated 24th December, 1990 issued Succession Certificate in favour of the appellants by holding that under Ex.A3 it is clearly mentioned that there is a relationship of husband and wife between the 1st respondent and Atchaiah and all claims are settled and also it is mentioned that she has no right to claim any share in the property of Atchaiah. Further, the nomination Ex.XI shows that the 1st appellant herein is the nominee of late Atchaiah meaning there was no relationship of husband and wife in between the deceased Atchaiah and the 1st respondent and also that the claims of the respondents were settled earlier. Aggrieved by the said order and decree, the respondents filed AAO No. 315 of 1991. A learned single Judge of this Court by an order dated 12th December, 1991 on an erroneous view of the matter having held that it is not possible to determine in a summary enquiry as to whether the respondents plaintiffs ceased to be legal heirs as per terms of the said agreement and they are not entitled to claim even as the heirs of late Atchaiah. Likewise his Lordship observed that if the marriage of late Atchaiah with appellant No. 1 is void her nomination cannot be held to be valid and these issues have to be considered in a regular suit, having taken the above view his Lordship is under an impression that the Court can only grant one certificate in favour of one person or some of the persons jointly. In that view of the matter the learned Judge directed the appellants herein to deposit Rs. 22,000/- i.e. 1/3rd amount that is likely to fall to their share and permitted the respondents to withdraw the same on furnishing the security. Aggrieved by the said order, the present appeal is filed.