OLIYA BEGUM Vs. ABDUL RASHID

JUDGEMENT

(1.) This revision is directed against the order dated 21.07.2010 passed in Misc. Civil Appeal No.96/2010 by the IX Additional District Judge, Bhopal by which reversing the order dated 11.05.2010 in M.J.C. No.30/2004 of the I Additional Judge to the Court of I Civil Judge, Class-I, Bhopal, direction has been issued to issue a succession certificate under Section 372 of the Indian Succession Act to the respondent No.1.

(2.) The facts giving rise for filing of this revision are that the petitioners No.1 and 1(a), 1(b) and 1(c) herein have made an application for grant of succession certificate on account of death of one Abida Sultan, who was said to be the daughter of petitioner No.1 and sister of petitioners No.1(a), 1(b) and 1(c). It was contended that on account of a motor accident on 19.10.1997, said Abida Sultan had died. She was an employee in the Madhya Pradesh Laghu Udyog Nigam Limited on the post of Lower Division Clerk and she was to be granted certain benefits accrued to her on account of such service. She was to be granted Rs.1,00,000/- as Insurance amount, Rs.80,000/- being Provident Fund and Rs.45,000/- being gratuity and a total sum of Rs.2,25,000/- was required to be paid to her. Since the petitioners were the only succeeding heirs of said Abida Sultan because her husband, the respondent No.1, had given her divorce (Talaq) three months before the date of death, therefore, a succession certificate be granted to the petitioners. The objections were filed in the said claim made by the petitioners by the respondent No.1. The other petitioners in this case were also named as respondents in the said succession case. The objection of the respondent No.1 was considered and in view of the law laid-down by the Apex Court, taking into account the fact relating to personal law, the Trial Court held that the petitioners were entitled to grant of such succession certificate and passed an order on 11.05.2010. The respondent No.1 preferred a Misc. Appeal against such an order before the Court of IX Additional District Judge, Bhopal and since the said appeal has been allowed and it has been directed that the succession certificate be issued in favour of respondent No.1, this revision is required to be filed.

(3.) Learned Counsel for the petitioners has drawn attention of this Court to the order passed by this Court in Misc. Appeal in which the claim for enhancement of compensation was made by the respondent No.1. Drawing attention of this Court to the specific finding recorded that the factum of divorce cannot be disbelieved, it is contended by the learned Counsel for the petitioners that if respondent No.1 was a divorced husband, he was not entitled to grant of a succession certificate as per the provisions of Mohammedan Law as a divorc e husband has no right to claim the benefits in the property of a divorced wife. It is also contended that there was material evidence available on record to this effect, which was not taken into account by the Court below and if proper appreciation of evidence, as was done by the Trial Court, would have been done by the lower Appellate Court, the entire claim of respondent No.1 would not have been accepted at all. It is also contended that as per the Mohammedan Law even if it is accepted that there was no divorce (Talaq) proved, the entire share of the property of the deceased Abida Sultan was not to be given to the husband as the right of other sharers as defined in Chapter-VII of Mohammedan Law relating to Hanafi Law of Inheritance, the petitioners would have been entitled to share. This particular aspect has not been considered by the lower Appellate Court and, therefore, the order impugned is bad in law.