MAYA DEVI Vs. SUNILA DEVI

JUDGEMENT

(1.) The present petition has been filed by the petitioner under Article 227 of the Constitution of India for quashing the order dtd. 4/7/2017 passed by the learned Sub-Judge-I, Begusarai in Succession Case No. 14 of 2015, whereby and whereunder the learned Sub Judge-I, Begusarai declared the plaintiffs/respondents as legal heirs and successors of one late Laxman Ram, who was an employee of East Central Railway, Sonepur.

(2.) Briefly stated, the facts of the case are that the petitioners, who were defendants before the learned trial court, claimed themselves to be the real legal heirs and successors of late Laxman Ram. The defendant/petitioner no. 1 claims to be the legally wedded wife of late Laxman Ram and defendant/petitioner no. 2 is the son of defendant/petitioner no. 1 with late Laxman Ram. The marriage between Laxman Ram and defendant/petitioner no. 1 was solemnized in the year 1993. It further appears from the record that plaintiffs/respondents filed Succession Case No. 14 of 2015 and has been able to obtain a Succession Certificate as the learned trial court held that defendant/petitioner no. 1 was the first wife of late Laxman Ram but she had no issues with late Laxman Ram and thereafter she left him and married with one Dharamraj Ram @ Dharamraj Paswan. After the petitioner no. 1 deserted Laxman Ram, he entered into wedlock with the plaintiff/respondent no.1. Proceeding on this assumption, the learned trial court held that marriage between Laxman Ram and defendant/petitioner no. 1 had got dissolved and thereafter late Laxman Ram married with the plaintiff/respondent no. 1 in 1998 and held that the respondents were entitled to get all the death benefits of late Laxman Ram dues from East Central Railway, Sonepur Division. The petitioner no. 1 was also held to be entitled to get family pension. This order has been challenged in the present case by the petitioners.

(3.) Learned counsel for the petitioners submits that the learned trial court has passed the order in a mechanical manner without applying its judicial mind. The learned trial court has not considered the fact that a petition for grant of succession certificate was not maintainable before it as the case was directly filed before the learned Subordinate Judge and not before the learned District Judge. Even if it was filed before learned Subordinate Judge, it could have brought the matter to the notice learned District Judge and thereafter the District Judge could have allowed the matter to proceed before the learned Subordinate Judge. The learned trial court committed further error when it proceeded in the matter when the matter was not maintainable before it on the ground of lack of jurisdiction relating to competency as well as territorial jurisdiction. Under Sec. 372 of the Indian Succession Act (for short 'the Act'), an application for certificate of succession is required to be filed before the court of learned District Judge. The jurisdiction of the District Judge will be decided by the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits. In the present case, the deceased was ordinarily residents of district-Gaya whereas the petition has been filed in district-Begusarai, that too, in the court of learned Subordinate Judge. Learned counsel further submitted that even on merits of the case, the learned trial court has committed gross mistake and the impugned order is completely erroneous. The learned trial court failed to appreciate the fact that due to subsistence of first marriage, second marriage is void under the Hindu Marriage Act, 1955 and also as per the provisions of the Railway Services (Conduct) Rules, 1966. The learned trial court without any documentary evidence and merely on oral submission and oral evidence, declared the defendant/petitioner no. 1 as ex-wife of late Laxman Ram, which is a perverse finding. The marriage of deceased Laxman Ram was solemnized with petitioner no. 1 in the year 1993 and the deceased Laxman Ram, during his lifetime, has nominated petitioner no. 1 as nominee in his service-book and also in his bank account and never changed the same. In the Attendance (Upasthiti Pehchan-Patra) submitted to the Railway in the year 2011, the deceased Laxman Ram had clearly indicated that petitioner no. 1 was his wife and petitioner no. 2 was his son. The respondent no. 1 has claimed that petitioner no. 1 solemnized another marriage with Dharamraj Paswan, but the said Dharamraj Paswan is none other but the younger brother of late Laxman Ram, who is already married and living with his own separate family and has no concern with the petitioners. Even Rule 21 of the Railway Services (Conduct) Rules, 1966 categorically stated that 'no railway servant, having a spouse living shall enter into, or contract, a marriage with any person'. The second marriage during subsistence of first marriage has got no legal sanctity and the Hindu Marriage act makes such marriage void-ab-initio. Thus, the learned counsel submitted that the learned trial court has passed an erroneous order and the said order is not sustainable and must be set aside.