KRISHNA PYARI BAI DIXIT Vs. GOBIND MISHRA

JUDGEMENT

(1.) Respondent has been duly served. He is represented by Shri S. B. Agarwal, Advocate. However neither on the last date nor today any steps are taken by the respondent or his counsel to defend the appeal. I have no doubt, therefore, that the respondent has lost all interest in the matter. Indeed, it is submitted that in the Court below also though the respondent filed objection, he did not enter the witness-box and indeed he did not take any other steps to pursue the objection.

(2.) The impugned order is D/- 25-3-1991 passed in Succession Certificate case No. 157 of 1988. The appellant as petitioner filed an application under S. 372 of the Succession Act, 1925, for short 'the Act'. She claimed that she was mother of the deceased Neetabai, who during her life time was in the service of the State Government in the Education Department. Indeed, on record is a certificate D/- 5-5-1989 of the Head Master of the school concerned, in Mungaoli indicating that Ku Neeta Dixit daughter of Shri Dayashankar Dixit had rendered service in the school as Upper Division Teacher between 1981 and 1985. He also certified that from her salary at the rate of Rs. 30/- per month deduction was made against family Welfare Benefit Scheme. However, what is not disputed is that the said deceased continued in service till she died on 5-11-1988. As per para 12 of the application filed in the Court below she was serving in Government Girls Higher Secondary School at Dabra, when she died. Accordingly, prayer was made for grant of Succession Certificate to realise her dues from the State Government (particulars of which are given in para 16 of the application as also in the prayer portion) comprising of gratuity, G. P. F. and dues under the Family Welfare Benefit Scheme etc.

(3.) The Court below has rejected the prayer and has dismissed the application upholding the objection of respondent. In this connection it may be stated that the deceased, Neetabai, was married to the respondent on 25-2-1984. But, the admitted fact is that the couple lived together for only three days. It is also undisputed that respondent sued deceased Neetabai for a divorce but he could get decree for judicial separation against her, which was passed on 8-4-1988. It is also not disputed by the respondent that he contracted a second marriage though he stated that that marriage did not take place in May 1988, but some time after deceased Neetabai's death in Nov. 1988. The Court below has accordingly taken the view that under the Hindu Succession Act the mother could not claim to be prima facie best entitled to the certificate prayed because she could not claim to be deceased's heir. It is true, as per S. 15 of the Hindu Succession Act, l956, for short '1956 Act', a Hindu female dying intestate leaves her property in order of preference, "firstly" for the sons, daughters and husband jointly and the mother's turn comes "thirdly". However, the trial court failed to take notice of the legal position that overriding effect of the '1956 Act' was circumscribed by S. 4 of the Act. Legislature has made it clear that only "with respect to any matter for which provision is made in this Act" the Shastric Law shall be deemed repealed and indeed that position is made clear by Explanation to S. 14 of the 1956 Act. It is recognised that the stridhan of a Hindu female continues to be her absolute property to mean obviously that Shastric Law with respect thereto continued to be in force.