DEEPAK KUMAR CHOUKSEY Vs. SUPERINTENDENT OFFICE OF DISTRICT

JUDGEMENT

(1.) THIS revision is directed against the order dated 31.03.2011 passed in Civil Appeal No. 13/2010, by which the appeal filed by the petitioner against the order dated 24.11.2010 passed in Succession Case No. 14/2009 by the III Civil Judge, Class-I, Sagar, has been dismissed.

(2.) FACTS giving rise to filing of this revision in brief are that one late Smt. Pushpa Chouksey was employed as Staff Nurse in District Ayurved Hospital, Sagar. She died intestate on 26.04.2008. The petitioner being the younger brother of said Smt. Pushpa Chouksey, filed an application under Section 372 of the Indian Succession Act, 1925 (herein after referred to as 'Act') for grant of succession certificate so as to claim the service benefits of late Smt. Pushpa Chouksey. It was contended in the application that the marriage of Smt. Pushpa Chouksey was solemnized with one Omkar Rai on 08.02.1981 but the same was not a successful marriage. Said Smt. Pushpa Chouksey was deserted by her husband and she was living with her father and mother. Ultimately a civil suit was filed by Smt. Pushpa Chouksey for grant of divorce against Omkar Rai in the Court of IV Additional District Judge, Sagar, being Civil Suit No. 123-A/2000. The said suit was decreed on 21.12.2000. The petitioner was living with said Smt. Pushpa Chouksey and the petitioner was nominated in all the service records of said Smt. Pushpa Chouksey as the nominee to receive the service benefits of said Smt. Pushpa Chouksey. Before even the dissolution of marriage of said Smt. Pushpa Chouksey with Omkar Rai, she started living with respondent No.2 but no marriage was performed. Said Smt. Pushpa Chouksey died on 26.04.2008 in Medical College, Jabalpur on account of gas leakage and, therefore, he was entitled to grant of succession certificate.

(3.) IT is vehemently contended by learned Counsel for the petitioner that the order passed by the lower Appellate Court as also by the Succession Court are bad in law as the material evidence, the proof of marriage produced by respondent No.2 have wrongly been accepted. It is contended that since undisputedly the parties are Hindu, they are governed by the Hindu Law and the Hindu Succession Act, 1956 (herein after referred to as 'Succession Act') as also the Hindu Marriage Act, 1955 (herein after referred to as 'Marriage Act'), are applicable. It is contended that the marriage as alleged by the respondent No.2 with Smt. Pushpa Chouksey is void ab initio as the marriage was said to be performed on 15.01.2000, though no proof of the same was produced by respondent No.2 whereas the earlier marriage of said Smt. Pushpa Chouksey was dissolved only on 21.12.2000 by grant of decree of divorce. It is contended that as per the law and the specific provisions made under Section 11 of the Marriage Act, the marriage said to be performed during the lifetime of the previous husband and without the dissolution of previous marriage, was void ab initio. Reading Section 5 of the Marriage Act, it is said that admittedly there was no divorce in between Smt. Pushpa Chouksey and Omkar Rai prior to 21.12.2000 and second marriage performed on 15.01.2000 was null and void. It is also contended by learned Counsel for the petitioner with vehemence that apart from the fact that marriage of Smt. Pushpa Chouksey with respondent No.2 was void ab initio, in fact there was no proof of such a marriage as is required under the law. It is contended that the condition of Hindu marriage as prescribed in Section 5 of the Marriage Act and the ceremonies for Hindu marriage as prescribed in Section 7 of the aforesaid Act were neither stated nor proved. A form of marriage with the blessings of the religious Guru is not recognized under the Marriage Act and, therefore, such marriage could not be treated as a valid marriage. On this count also, the succession certificate was not to be granted to respondent No.2. Taking this Court to the provisions of Succession Act, it is contended that the petitioner was in fact entitled to the succession certificate, being the legal heir of Smt. Pushpa Chouksey as per the general rules of succession in case of female Hindu prescribed under Section 15 of the Succession Act but this was completely ignored by the Courts below and as such the order passed by the Succession Court as also by the lower Appellate Court are bad in law and are liable to be set aside.