BANNU Vs. BUNDU

JUDGEMENT

(1.) This appeal is directed against the order of the learned District Judge, Bhilwara dated 31-1-1981 whereby the learned Trial Court has issued a certificate in favour of plaintiff-respondent Bundu on the basis of the will executed by Shri Gafoor in his favour as regards the receipt of gratuity amount of Rs. 3,200.00 and Bonus for the year 1976-77 amounting to Rs. 700.00.

(2.) The facts necessary to be noticed for the disposal of this appeal briefly stated are : that plaintiff-respondent's father Ibrahim, defendant-appellant's father Chhotu and Gafoor's father Karim Bux were the real brothers. Chhotu's daughter Mst. Bannu was married to Karim Bur's son Gafoor. It is alleged that plaintiff-respondent Bundu's father had two other sons viz., Mohd. Farooq and Kaloo and defendant appellant Mst. Bannu's father had one son viz., Gulam Rasool. Defendant-appellant Bannu's husband Gafoor was doing service in Mewar Textiles Mills. He had a P.F. A/c with that factory and was also entitled to receive gratuity and Bonus. It is alleged that defendant-appellant Mst. Bannu started living separately from her husband before about 10 years of his death and they did not have any marital relations with each other. It is further alleged that when Gafoor was ill Mst. Bannu was called for but she did not turn to her marital home. Actually, an oral dissolution of marriage has also taken place between them. As Gafoor had no issues, he started living with plaintiff-respondent Bundu, who is his uncle's son. Gafoor was pleased with the services rendered by Bundu and, therefore, he executed a will in his favour bequeathing his entire property to him oo 13-8-1978. It is alleged that Gafoor died on 18-8-1978 and a sum of Rs. 2,500.00 was spent on the performance of his last rites by the plaintiff-respondent Bundu. The plaintiff-respondent Bundu has therefore, claimed a succession certificate on the basis of the will executed by Gafoor in his favour to receive P.F. amount of Rs. 6,700/, Gratuity amount of Rs. 3,200.00 and Bonus amount of Rs. 700.00. Notices were issued to the residuary of - Gafoor. Mohd. Farooq and Kaloo sons of Ibrahimji and the real brothers of plaintiff-respondent Bundu accepted the claim of Bundu and they have prayed that on the basis of this will, succession certificate be granted in favour of Bundu as regards the property of Gafoor. Gulam Rasool son of Chhotuji and Mst. Banno daughter of Chhotuji and the wife of deceased Gafoor have opposed the grant of succession certificate in favour of plaintiff-respondent Bundu on the basis of the will executed by deceased Gafoor. They have contended that Mst. Banno is the married wife of late Shri Gafoor. No dissolution of marriage was obtained and Mst. Banno has been looking after her husband throught his life. Moreover, it has been alleged that no will was executed by Shri Gafoor in favour of plaintiff-respondent Bundu.

(3.) On the basis of the pleading of the parties, the learned Trial Court framed four issues. From the side of the plaintiff-respondent, P.W. 1 Bundu, P.W. 2 Sattar, P.W. 3 Gulam Nabbi, P.W. 4 Ismail son of Hajari and P.W. 5 Ismail son of Rahmat were examined whereas on behalf of defendant-appellant, D.W. I Mst. Banno, D.W. 2 Gulam Rasool, D.W. 3 Chiragudeen, and D.W. 4 Noor Mohd. were examined. A notice was issued to the Provident Fund Commissioner and in pursuance of that notice, his representative put in appearance before the Court and informed that P.F. amount of Rs. 6,700.00 has already been paid to Mst. Banno and, therefore, no succession certificate was granted in respect of that amount. However, after hearing both the parties, the learned Lower Court decide the application for grant of succession certificate as aforesaid and hence, this appeal.