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PETITIONER: SMT. RAJ RANI

       Vs.

RESPONDENT: CHIEF SETTLEMENT COMMISSIONER DELHI AND ORS.

DATE OF JUDGMENT03/05/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR 1234            1984 SCR  (3) 763  1984 SCC  (3) 619        1984 SCALE  (1)815

ACT:      Evidence Act-S.  35-Scope of.  Whether  certificate  of death given  by  respectable  persons  of  the  place  where deceased once resided admissible in evidence. Held no.

HEADNOTE:      Nanak Chand,  father  of  the  appellant,  a  displaced person from West Pakistan and having a verified claim in his name for  some land, disappeared some time in December 1954. A  report   about  his   disappearance  was  lodged  by  the appellants brother,  Dewan Chand, Respondent No. 2, with the local police  in Punjab.  The police  made an enquiry in the matter and ultimately gave out that Nanak Chand could not be traced. In  response to  a notice issued in the year 1956 in suo moto  revision in  regard to  the verified claim, in the absence of Nanak Chand, Dewan Chand appeared and alleged bat Nanak Chand had died leaving behind three sons including him as the  only legal heirs. Dewan Chand produced a certificate to the  effect that  Nanak Chand  had died  one year  and 10 months prior  to 25th  October, 1956.  The  certificate  Was issued on  his request  by some  respectable persons  of the place  where   the  family   once  resided.  The  Additional Settlement Commissioner,  Delhi, by  his  order  dated  27th October, 1956  allowed the  application for substitution and directed the  three sons  to be  brought on  record as legal representatives of  the deceased  Nanak Chand although Nanak Chand had  left behind three sons, three daughters including the appellant and his widow. The appellant, in an attempt to have her  name substituted,  filed  a  revision  application against the  order of the Additional Settlement Commissioner before the  Chief Settlement  Commissioner under  s 5 of the Displaced Persons  (Claims) Supplementary  Act, 1954. By his order  dated  25th  September  1965,  the  Chief  Settlement Commissioner  confirmed   the  order   of   the   Additional Settlement  Commissioner   dated  27th   October,  1956  and dismissed the  revision application of the appellant without affording an  opportunity of  being heard  to the appellant. The High  Court dismissed  the appellant’s writ petition and Letters  Patent  Appeal  against  the  order  of  the  Chief Settlement Commissioner.  The High  Court observed  that the Additional Settlement  Commissioner acted rightly in relying

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upon the  death certificate  produced  by  Dewan  Chand  and substituting the  sons  of  Nanak  Chand  as  heirs  of  the deceased of his certified claim. Hence this appeal,      Allowing the appeal, 764 ^      HELD: A certificate given by respectable persons of the place where  the deceased once resided, to say the least, is not admissible  in evidence,  Sec. 35  of the  evidence  Act provides that an entry in any public or other official book, register, or  record, stating  a fact  in issue  or relevant fact, and  made by  a public servant in the discharge of his official duty,  or by  any other  person in performance of a duty, specially  enjoined by the law of the country in which such book,  register or record is kept, is itself a relevant fact. [769B-C]      In  the   instant  case   a  certificate   by   certain respectable person  of  the  place  where  the  family  once resided does  not satisfy  the requirements  of s. 35 of the evidence Act.  There is no proof that any statutory duty was cast upon  the person  issuing the  certificate  to  keep  a record of  birth and death and therefore, the certificate of death has no evidentiary value. It is very easy for a person to obtain a death certificate from the so-called respectable persons in order to grab the property. If according to Dewan Chand, Nanak  Chand had died he must also indicate where did he die  and it  is the  place of  his death  which  will  be relevant and  not the  place of  his birth or residence. The certificate obviously  is not of the place where Nanak Chand died. The authorities have gravely erred in relying upon the certificate of  death which  was inadmissible  in  evidence. [769D-E]      To see  whether daughters would be entitled to interest in the  property left  by Nanak  Chand will  depend upon the death of  Nanak Chand  before or  after the  enforcement  of Hindu Succession  Act and  to decide  as to when Nanak Chand died it  was absolutely essential that an opportunity should have been  offered to  the appellant  in accordance with the principles of natural justice. [769H; 770A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No  485 of 1971.      From the  Judgment and  order dated  the 29th  January, 1970 of  the Delhi  High Court  in Letters Patent Appeal No. 8/70.      D.D. Thakur,  E.C. Agarwala  and V.K.  Panditta for the Appellant.      Chaman Lal Itrora for the Respondent.      The Judgment of the Court was delivered by      MISRA J.  The present appeal by certificate is directed against the  judgment of  the High Court of Delhi dated 29th January,  1970  in  letters  patent  appeal  confirming  the judgment and  order of  the learned Single judge of the High Court dated 7th January, 1970, 765      Nanak Chand,  father of  the appellant  was a displaced person from  West Pakistan  where he  held left agricultural lands in  village Chhota  Bhukh Autar, tehsil Bahawal Nagar, district Bahawalpur.  After the partition of the country his claim bearing  Index No. B/BP-3/259 was verified in his name for 26  standard acres  12.5 units.  Nanak Chand disappeared sometime  in   December,  1954   and  a   report  about  his

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disappearance was  lodged by  the appellant’s  brother Dewan Chand, arrayed  in this  appeal as respondent No. 2, on 25th December, 1954  with the  local  police,  Malhout,  district Ferozepur, Punjab.  An enquiry was made by the police in the matter and  ultimately the  police gave out that Nanak Chand could not be traced.      In the  year 1956  a notice  was  issued  in  suo  moto revision in  regard to the verified claim referred to above, by the  Additional Settlement  Commissioner, Delhi  to Nanak Chand, claimant. As Nanak Chand could not and did not appear in compliance  with the  notice, the  eldest brother  of the appellant,  namely,   Dewan  Chand,   appeared  before   the Additional Settlement  Commissioner, Delhi  on  October  25, 1956 and  alleged that  Nanak Chand  had died leaving behind three sons namely, Dewan Chand, Prabhu Dayal and Ashok Kumar (minor) as the only legal heirs of the deceased.      The learned  Additional Settlement  Commissioner by his order dated  27th October,  1956 allowed the application for substitution and  directed Dewan  Chand,  Prabhu  Dayal  and Ashok Kumar  alone to  be brought  on the  record  as  legal representatives of  the deceased Nanak Chand, although Nanak Chand had  left  behind  the  aforesaid  three  sons,  three daughters, namely,  Satnam Devi, Lajwanti and Smt. Raj Rani, and his widow Smt. Chandan Bai.      Prabhu Dayal, one of the three sons of Nanak Chand died in 1961  leaving behind  his daughter  Santosh  Kumari.  His widow Smt.  Lajwanti applied  for being  substituted  as  an their of  the deceased  alongwith her minor daughter Santosh Kumari. In  1964 the mother of the appellant also applied to the Settlement  officer that she and her three daughters may also be  Constituted as  heirs and  legal representatives of Nanak Chand  deceased regarding  payment of  compensation in respect  of   the  verified  claim.  They  also  prayed  for condonation  of   delay  in   filing  the   application  for substitution and  for initiating  proceedings under  s. 9 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The Settlement 766 Officer concerned  recommended for  condonation of  delay in his report dated 24th March, 1964 to the Regional Settlement Commissioner, Rajasthan  with the  delegated powers of Chief Settlement Commissioner,  Rajasthan, who  by his order dated 6th April,  1964 condoned  the delay  and directed  that the case may be processed and finalised according to rules.      When the relevant. record was received by the M.O./S.O. Rajasthan, the  appellants mother  alleged that the previous order of substitution of heirs of Nanak Chand, deceased, had been obtained  by fraud  and mis-representation practised by her  sons  inasmuch  as  they  did  not  disclose  in  their application for substitution the existence of the appellant, her mother  and sisters. The M.O-cum-S.O. by his order dated November 16,  1964, dismissed  the application of the mother of the appellant on the ground that the previous order dated 27th October,  1956  passed  by  the  Additional  Settlement Commissioner  declaring  only  three  sons  of  Nanak  Chand deceased as  his heirs, to the exclusion of deceased’s widow and daughter  was never  challenged by  way of  an appeal or revision, so  the  said  order  had  assumed  finality.  He, therefore,  declined  to  interfere  and  refused  to  grant redress. The  mother of  the appellant on her own behalf and on behalf  of her  three daughters, including the appellant, filed an  appeal in  the Court  of the  Regional  Settlement Commissioner which  came up  before Shri  S.S. Govilla, S.O. with delegated  powers of  Regional Settlement  Commissioner (Rajasthan) and  he by  his order  dated 22nd December, 1964

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dismissed the same.      The mother  of the appellant undaunted by the failures, filed  a  revision  petition  before  the  Chief  Settlement Commissioner, which  came up  for hearing  before Shri  D.N. Vohra, Settlement  Commissioner  with  delegated  powers  of Chief Settlement  Commissioner, and  he also  took the  view that the  order dated  18th December,  1954  passed  by  the Additional Settlement  Commissioner had  become final and he had no  jurisdiction to  revise or amend the said order, and accordingly he dismissed the revision. Thereafter the mother moved the  Central Government  under s.  33 of the Displaced Persons (Compensation  and Rehabilitation)  Act, 1954 on her own behalf  as well  as on  behalf of  the appellant but the application  was   dismissed  by   the  Central  Government, Ministry  of   Rehabilitation.  On  30th  August,  1965  the appellant also  filed a  revision against  the order  of the Additional  Settlement   Commissioner   before   the   Chief Settlement Commissioner  under s. 5 of the Displaced Persons (Supplementary) 767 Verification of Claims Act, 1954, but this also met with the same fate  on 25th  September,  1965  without  affording  an opportunity of being heared to the appellant.      The appellant  eventually filed  a writ petition before the High  Court of  Delhi giving  rise to the present appeal against the orders dated 25th September, 1965, passed by the Chief Settlement  Commissioner, Delhi  whereby he  confirmed the order  dated 27th October, 1956 passed by the Additional Settlement Commissioner,  refusing to substitute the appoint as legal  heir of  Nanak Chand,  deceased. The writ petition was dismissed  by an  order dated  7th  January,  1970.  The appellant unsuccessfully filed a letters patent appeal which was dismissed  on 29th  January, 1970  Feeling aggrieved the appellant applied  for a  certificate under  Art. 133 of the Constitution, which  was granted.  This is how the appellant has come to this Court.      It is contended for the appellant that on 27th October, 1956 she  was a  minor when  the order was obtained by fraud and misrepresentation by Dewan Chand, without disclosing the names of  other heirs  viz the appellant and her brother and two sisters.  The appellant filed revision petition under s. 5 of  Claims (Supplementary)  Act (12  of 1954)  on 27th  of November,  1964   before  the   learned   Chief   Settlement Commissioner, who  without hearing the appellant and without affording her  any opportunity  to substantiate  her  pleas, dismissed the  revision petition  on 25th  September,  1965. This was in Violation of the principles of natural justice.      The High Court chose to rely on the deposition of Dewan Chand, respondent  No. 2,  to the effect that his father had been murdered  and he produced a certificate of death before the Chief  Settlement  Commissioner  certifying  that  Nanak Chand died  one year  ten months prior to 25th October, 1956 and this  certificate is  alleged to  have been given on the application filed by Dewan Chand before the President of the Municipal Committee, Abohar. The learned Single Judge of the High  Court   observed  that   the   Additional   Settlement Commissioner acted  rightly in  relying upon the certificate and substituting  the sons  of Nanak  Chand as  heirs of the deceased to  his verified claim, on the ground that as Nanak Chand had  died  prior  to  the  enforcement  of  the  Hindu Succession Act  his daughters  would not  be heirs and could not succeed to the property of their father. 768      Shri  Thakur,   learned  counsel   for  the   appellant strenuously  contended   that  if   he  had  been  given  an

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opportunity by  the Chief  Settlement Commissioner  he would have been  able to  produce the  evidence before him that on the  own   admission  of   Dewan  Chand,   Nanak  Chand  had disappeared sometime  in December,  1954 and  a report about his  disappearance   was  lodged  by  Dewan  Chand  on  25th December, 1954  with the  local  police,  Malhout,  district Ferozepur and  as a result of an enquiry the police gave out that Nanak  Chand could  not be  traced. This evidence could not be  produced before  the Chief  Settlement  Commissioner because the appellant was not heard.      The decision  of  this  case  hinges  on  the  question whether Nanak Chand had died before or after the enforcement of  the   Hindu  Succession  Act.  If  he  died  before  the enforcement  of  the  Hindu  Succession  Act  obviously  the daughters could  not get  any share  in the property left by Nanak Chand.  If  on  the  other  hand  he  died  after  the enforcement of the Hindu Succession Act, the daughters would be equally entitled to a share in the property left by Nanak Chand. In  any case  the  widow  of  Nanak  Chand  would  be entitled to a share in the property irrespective of the fact whether  Nanak   Chand  died   before  or  after  the  Hindu Succession Act.  This aspect of the case has been completely lost sight  of by the High Court. If Nanak Chand disappeared in December,  1954 on  the report of Dewan Chand himself and has not  been heard  of for  seven years  by those who would naturally have  heard of  him if  he has  been alive,  there could be  raised presumption  of  death  when  the  question arises. But in the instant case to presumption arises as the question  arose   just  two   years  after   the   date   of disappearance.      As regards  the actual  date of  death the  High  Court dealing with the death certificate observed as follows:           "As an  administrative office doing quasi-Judicial      work,  the   Additional  Settlement   Commissioner  was      entitled to give credence to the death. certificate. He      was bound  only to make a preliminary enquiry as to who      were the  heirs of  Nanak Chand.  He did  not  hove  to      decide that question finally. For a preliminary enquiry      the death certificate signed by the respectable persons      of the  place where  the family resided was sufficient.      Therefore, the  Additional Settlement  Commissioner was      satisfied that the substitution 769      of the  sons of  Nanak Chand  in place  of the deceased      would not  prejudicially affect  his daughter.  It  was      not, therefore,  necessary for  him to  have  given  an      opportunity to  the daughter  of being heard under sub-      section (2)  of section  5  of  the  Displaced  Persons      (Claims) Supplementary Act, 1954."      A certificate given by respectable persons of the place where the  deceased once  resided, to  say the least, is not admissible in evidence. Sec. 35 of the evidence Act provides that ail  entry  in  any  public  or  other  official  book, register, or  record, stating  a fact  in issue  or relevant fact, and  made by  a public servant in the discharge of his official duty,  or by  any other  person in performance of a duty specially  enjoined by  the law of the country in which such book,  register or record is kept, is itself a relevant fact.      In  the   instant  case   a  certificate   by   certain respectable person  of  the  place  where  the  family  once resided does  not satisfy  the requirements  of s. 35 of the evidence Act.  There is no proof that any statutory duty was cast upon  the person  issuing the  certificate  to  keep  a record of  birth and death and therefore, the certificate of

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death has no evidentiary value. It is very easy for a person to obtain  death certificate  from the so-called respectable persons in order to grab the property. If according to Dewan Chand, Nanak  Chand had died he must also indicate where did he die  and it  is tho  place of  his death  which  will  be relevant and  not the  place of  his birth or residence. The certificate obviously  is not of the place where Nanak Chand died. We  are of the view the authorities have gravely erred in  relying   upon  the   certificate  of  death  which  was inadmissible evidence.      The High Court repelled the contention raised on behalf of the  appellant that opportunity should have been given to the appellant under s. 5(2) of the displaced Persons (Claim) Supplementary Act,  1954 merely on the assumption that Nanak Chand had  died much  before the  enforcement of  the  Hindu Succession Act  and, therefore, no prejudice has been caused to the  daughters as they would not be an heir. It is simply begging the question. Whether daughters would be entitled to an interest  in the property left by Nanak Chand will depend upon  the   death  of   Nanak  Chand  before  or  after  the enforcement of  Hindu Succession  Act. It  was an  important question, therefore,  to decide  whether  Nanak  Chand  died before the enforce- 770 ment of  Hindu Succession  Act  or  not.  For  that  it  was absolutely essential  that an  opportunity should  have been afforded to  the appellant  in accordance with the principle of natural  justice. As  observed earlier, if an opportunity had been  given to the appellant she would have produced the admission  of  Dewan  Chand  that  his  father  Nanak  Chand disappeared sometime in December, 1954 and as a result of an enquiry by the police, no trace of him could be found out.      The  finding   that  Nanak   Chand  died   before   the enforcement of  the Hindu Succession Act, based on the death certificate, cannot be sustained for a moment as it is based on an inadmissible piece of evidence. If that finding is set aside, there  is no  escape from  the conclusion  that Nanak Chand died not before but after the enforcement of the Hindu Succession Act, that is, after 25th October, 1956.      There is  no dispute  that  Nanak  Chand  died  leaving behind his  widow, three  sons and  three  daughters.  Dewan Chand fraudulently  obtained on  order alleging  that  Nanak Chand died  leaving behind  only three  soils If Nanak Chand died after  the enforcement  of the Hindu Succession Act, as round earlier,  obviously his  widow, three  sons and  three daughters would  succeed to  his interest  in equal  shares, which would  work out to 1/7th. Now the question arises what was the interest of Nanak Chand at the time of his death. As the  property   in  question   was  Mitakshara   coparcenery property, his  interest would  be determined  in  accordance with the  provisions of  Explanation I  of s. 6 of the Hindu Succession Act.  It would  be appropriate  at this  stage to read s.  6 insofar as it is material for the purpose of this case:           "6. When  a male Hindu dies after the commencement      of this  Act, having  at  the  time  of  his  death  an      interest in  a  Mitakshara  coparcenery  property,  his      interest in the property, shall devolve by survivorship      upon the  surviving members  of the coparcenery and not      in accordance with this Act:           Provided  that,  if  the  deceased  had  left  him      surviving a female relative specified in Class I of the      Schedule or  a male  relative, specified  in that class      who claims,  through such female relative, the interest      of the  deceased in the Mitakshara coparcenery property

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    shall devolve by testamentary 771      or intestate succession, as the case may be, under this      Act and not by survivorship.           Explanation I.-For  the purposes  of this section,      the interest of a Hindu Mitakshara coparcenery shall be      deemed to  be the share in the property that would have      been allotted to him if a partition of the property had      taken place  immediately before his death, irrespective      of whether he was entitled to claim partition or not."      The interest  of Nanak  Chand shall be deemed to by the share in  the property  that would have been allotted to him if a  partition of  the property had taken place immediately before his  death irrespective of whether he was entitled to claim partition  or not.  In view  of Explanation I of s. 6, Nanak Chand  would have  got  1/5th  interest  on  partition between him  and his  wife  and  three  sons.  If  once  the interest of Nanak Chand is determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three  daughters equally  and thus the share of each one of them  would be 1/5 x 1/7, that is, 1/35th each. The claim of these  heirs cannot be denied merely because some of them have  not   advanced  the   claim.  When   the  question  of determination of  share among  the heirs crops up before the Court, the  Court has  to see  that every heir gets his due. Shri  Itrora   appearing  for   the  respondents  could  not successfully  meet   the  point  raised  on  behalf  of  the appellant.      For the  foregoing discussion  the appeal  must succeed and it  is accordingly  allowed and the judgment of the High Court as  well as of the authorities below are set aside and shares of  the three sons, three daughters and the widow are determined as  follows: Each of the three sons 1/35; each of the three  daughters-1/35, the  widow-1/35+1/5. As the widow has inherited  the interest  of her  husband after his death her share  would be  augmented by  1/5. Therefore, her share would come to 1/35+1/5=8/35.      In the  circumstances of the case we direct the parties to bear their own costs. H.S.K.    Appeal allowed. 772