URMILA SHARMA Vs. GENERAL PUBLIC AND OTHERS

JUDGEMENT

(1.) Challenge in the present petition is to the order dated May 17, 2011 passed by the learned court below whereby the appeal filed by the petitioner against the judgment of the learned trial court dated 21.3.2009 in a petition under Section 372 of the Indian Succession Act for issuance of succession certificate, was dismissed as time barred.

(2.) Learned counsel for the petitioner submitted that against the judgment of the trial court dated 21.3.2009, the petitioner filed appeal before the learned court below on July 20, 2009. Delay occurred on account of the fact that the petitioner was not informed about the order passed by the trial court by her counsel. He further submitted that deceased-Rajinder Kumar Sharma had in fact, married the petitioner during the subsistence of his first marriage. The marriage was solemnized in the year 1977. The petitioner was in knowledge of the first marriage of deceased-Rajinder Kumar Sharma with Rukmani Devi. No child was born out of the alleged wedlock of deceased-Rajinder Kumar Sharma with the petitioner. However, from the first marriage with Rukmani Devi, the deceased was having four children, namely, two daughters and two sons. Two daughters have already been married. One son is living with the first wife Rukmani Devi whereasone son was living with the petitioner and presently also he is living with her. In terms of the provisions of Indian Successions Act, the petitioner having married the deceased-Rajinder Kumar Sharma during the subsistence of his first marriage did not have any right of succession of his property.

(3.) However, after dismissal of the petition qua the petitioner by the trial court, the petitioner came in possession of a Will executed by the deceased on 14.4.2002, on the basis of which, she was the only person entitled to succeed his property. An application for leading additional evidence was also filed along with the appeal, however, the appeal was dismissed on account of delay. Merits of the case were not considered by the learned court below.