NIRMALA DEVI Vs. VIRENDRA KR TRIPATHI

JUDGEMENT

(1.) THESE two Miscellaneous appeals are directed against the orders dated 18th September, 1997 passed by the Additional District Judge, XI, Patna, in Succession Certificate Case Nos. 66 of 1993 & 138 of 1995. The opposite party of that case, namely, Bimla Devi is the appellant before this Court.

(2.) THE relevant facts of the case are that there was one Mahendra Narayan Sharma @ Mahendra Narayan Tripathi who died issueless leaving behind his wife Briji Kishori Devi who was living in Flat No. B-29, People's Co-operative Colony, Kankarbagh, Patna 20. On her death, one Birendra Kumar Tripathi filed the aforesaid succession case claiming herself to be the sole heir of Brij Kishori Devi, as her Dewar, (the full brother of her husband). This succession case was contested by the appellant and she also claimed to be the sole heir of Brij Kishori Devi, as the full sister of the deceased husband Mahendra Narayan Tripathi. Besides filing objection in the succession case filed by Virendra Kumar Tripathi, Nirmala Devi filed a separate succession case of her own (Succession Case No. 138/95). Both the cases were heard analogous and a common judgment was passed and a succession certificate was granted to Virendra Kumar Tripathi and claim of Nirmala Devi was rejected.

(3.) THE appellant's lawyer relied on certain letters written by Virendra Kumar Tripathi to the son of Nirmala Devi, where he addressed himself as maternal uncle (Mama) of the addressee, and also on certain admissions and denials in the statement of Virendra Kumar Tripathi, as A.W. 1 and submitted that circumstances afforded by these letters and admission of Virendra Kumar Tripathi gave a clear inkling to the effect that Nirmala Devi was the step-sister of Virendra Kumar Tripathi and full sister of Mahendra Narayan Tripathi. I woufdstate in precise terms the relevant admissions and statements of A. W. 1 Virendra Kumar Tripathi and then I shall refer to the contents of letter written by A.W. 1 addressed to the son of Nirmala Devi and there after I shall give my findings whether the aforesaid letter and statements of A.W. 1 established the case of Nirmala Devi that she is the daughter of Ram Briksha Sharma and step sister of Virendra Kumar Tripathi. A.W. 1 admitted at Paragraph 47 of his evidence that Awadhesh and Suresh are the two sons of Nirmala Devi. He further admitted that he was living at Delhi along with his family members. This admission came at Para-22 of his evide. ce. At this very paragraph, he said that he used to live at Delhi with his entire family and used to visit Patna occasionally. At Paragraph 10 he said that he completed his study outsideBihar State and he was also in service outside this State. From the aforesaid admissions of this witness who is the party himself, it is apparent that he was not expected to be familier of intimate with people of Patna or persons out of his family. In such a circumstance, he would not be expected to be having any intimacy with the sons of Nirmala Devi, if according to his case, Nirmala Devi happened to be the sister of the Sarhu of Mahendra Narayan Tripathi. In such a circumstance, letters written by this witness to the sons of Nirmala Devi and addressing himself as the maternal uncle of her son will gain significance and it will give an inference that, of course, he had close kinship with Nirmala Devi. THE first letter in this connection is Ext-A. This letter has been written by Virendra Narayan Tripathi to his Phupha (husband of one's father's sister) and the contents of this letter are significant in more than one respect. In this letter, Virendra Kumar Tripathi has stated that the husband of Nirmala Devi was living in House No. 104-A in the People's Co-operative Colony where he died and when he went to the house of Nirmala Devi, he found her wailing and stating that she had received poetic justice in the death of her husband on account of the sin which she had committed against her Bhaiya (brother). THE subsequent contents of this letter indicate that the son of Nirmala Devi came to him along with a Police Officerwho handed over to him a paper in which there was allegation that this witness (V.K. Tripathi) was intimidating and threatening Nirmala Devi. THE letter is dated 13th May, 1995 and this case was filed in June 1993 itself. So it appears that this letter was written after filing of this case. So it further appears that Virendra Kumar Tripathi threatened and intimated Nirmala Devi because she had filed an objection to this case and perhaps, reference to the admission of Nirmala Devi regarding her sin to have been committed by her against her brother was a reference to her objection in the case concerned. THE reference to Bhaiya by Nirmala Devi, as stated in this petition, would, therefore, indicate that she was referring to Virendra Kumar Tripathi as her brother, even though step-brother. THEre can be no escape from these inferences from the evidence of aforesaid letter because A.W, 1 in his evidence in Court had earlier at Paragraph 11 denied that he knew Nirmala Devi from before. He rather said that he came to know that Nirmala Devi is the sister of one Gupteshwar Tripathi, after she filed objection in the succession case filed by him. So, if he did not know Nirmala Devi from before, it was not expected from him that he will visit her house when her husband died that he will write a letter to his Phupha regarding his dispute with Nirmala. This is more so because if Nirmala was not his kith and kin and she had filed an objection in his case, there being a position of enmity, he was all the more expected to remain indifferent in stead of visiting her. His kinship with Nirmala will further be explained by other letters. Ext-A/1 is a letter written by Virendra Kumar Tripathi to one of the sons of Nirmala Devi. This letters (Post Card) is dated 8th September, 1993 and in this letter Virendra Kumar Tripathi has enquired about the welfare of the addressee and regarding his progress in studies, etc. and lastly it has been stated that he will pay for the telephone bills of the addressee. THE author of the letter described himself as Mama of the addressee. So if Virendra Kumar Tripathi was not the Mama of Awadhesh, son of Nirmala, he was not expected to pay for the telephone bill of son of Nirmala Devi and he was also not expected of enquiring about the welfare and progress of his studies. THEn there is another letter (Ext-A/2) again addressed from Delhi residence of Virendra Kumar Tripathi and in this letter also, he has described himself as Mama of the son of Nirmala Devi. THE contents of this letter show that Virendra Kumar Tripathi was enquiring and seeking information from the addressee regarding family affairs and management of property. He had rather specifically directed the addressee to look after the case pending before the Circle Officer. Lastly he said that the Mami of the addressee was anxiously waiting to meet her Bhagina who once visited Delhi and went away without meeting her. This letter dated 16th March, 1981 was written much before filing of the case. If, however, Nirmala Devi was not known to Virendra Tripathi, it was not expected of him to write letters to her son, in such an intimate manner and exchanging intimate information about the family affairs and enquiring about the welfare and about the studies of her sons. THE contents of these letters will, therefore, explicity indicate that Virendra Kumar Tripathi was having kinship with Nirmala Devi and her sons. Admittedly, Virendra Kumar Tripathi had only three full sisters, as per his case. In such a circumstance, Nirmala Devi would be nothing but his step-sister. THE aforesaid letters have been owned by Virendra Kumar Tripathi, when he was examined in Court as A.W.