MAYA GUDDI JASWANTI Vs. DHARMENDRA SINGH

JUDGEMENT

(1.) THIS Civil Revision has been preferred by the petitioners under Section 115 of CPC against the judgment and decree dated 29-06-2011 passed in Civil Appeal No.15-A/11 by learned 5th Additional District Judge, Gwalior confirming the judgment and decree dated

(2.) -05-2011 passed in succession case No.11/10 by learned 6th Civil Judge Class -I, Gwalior by which the application filed by the petitioners under Section 372 of Indian Succession Act has been dismissed. 2 Brief facts of the case are that Bhagwan Singh was working as peon in the Office of Commissioner Land Record and Settlement and he has died on 03-08-07 due to illness, his first wife Smt. Maya has died on 21-04-1989 and respondent No.1 Dharmendra Singh is son of late Rambhagwan Singh of his first wife Smt. Maya Devi. After death of Rambhagwan Singh, petitioners have filed an application under Section 372 of Indian Evidence Act for obtaining succession certificate for the amount deposited in the account of GPF, Gratuity, Employees Group Insurance Scheme and other monetary benefits on the ground that Rambhagwan has married with Smt. Maya alias Guddi after the death of his first wife and petitioner No.2 to 5 are their children. The application was opposed by respondent No.1 on the ground that the deceased has never married with petitioner No.1 - Smt. Maya alias Guddi alias Jaswanti, therefore, the petitioners have no right to claim succession certificate. He further challenged the marriage of Smt. Maya with Rambhagwan on the ground that her first husband Kamal is alive and there is no divorce between them, therefore, the alleged marriage of Smt. Maya with Rambhagwan was void.

(3.) BEFORE discussing the merits of the case, it is necessary to consider the question of dismissal of application filed by the petitioners under Order XLI Rule 27 of CPC which has been dismissed by learned lower appellate Court. Both the Courts below have given finding that the petitioners have not filed the document regarding Chhod -Chhutti with first husband. After dismissal of application by learned trial Court petitioners have searched the documents regarding Chhod -Chhutti and filed the documents with the application under Order XLI Rule 27 of CPC. Learned lower appellate Court only considered the fact that the document was within the knowledge of petitioners from very beginning but it has failed to consider the fact that the knowledge of existence of document is one thing and availability of document at the time of evidence is another thing. If the reasons have been assigned by the petitioners by filing the application under Order XLI Rule 27 of CPC with regard to not filing the document at earlier stage is sufficient then the application cannot be dismissed on the ground that the document was within the knowledge of the petitioners at the time of filing of application under Section 372 of Indian Succession Act.