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CASE NO.: Appeal (civil)  575 of 2008

PETITIONER: Vidyadhari & Ors.

RESPONDENT: Sukhrana Bai & Ors.

DATE OF JUDGMENT: 22/01/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.6758 of 2007)

V.S. SIRPURKAR,J.

1.      Leave granted. 2.      A common judgment of the High Court of Madhya Pradesh at  Jabalpur, disposing of two Miscellaneous Appeals  is in challenge before  us.  The appeals were filed by one Smt.Sukhrana Bai claiming herself to  be the widow of one Sheetaldeen.  Sheetaldeen was working as a CCM   Helper in Mines P.K.1 of the Western Coalfields at Pathakheda and died  on 9.5.1993 while in service.  Two separate applications came to be filed  under Section 372 of the Indian Succession Act for obtaining succession  certificate with respect to the movable properties of deceased  Sheetaldeen, one of them was filed by Vidhyadhari registered as  Succession Case No.3/96 while the other came to be filed by Sukhrana  Bai which was registered as Succession Case No.10/95.  Both the cases  were joined and tried together by the Trial Court which allowed the  application filed by Vidhyadhari (SC No.3/96) and dismissed the one filed  by Sukhrana Bai (SC No.10/95).  Sukhrana Bai, therefore, filed two  Miscellaneous Appeals being MA 33/1998 and MA 43/1998 which came to  be allowed by the High Court in favour of Sukhrana Bai.  Vidhyadhari,  therefore, is before us in this appeal.  Before we proceed with the matter, a  factual background would be necessary. 3.      Admittedly, Sukhrana Bai was the first wife of Sheetaldeen, while  during the subsistence of this marriage, Sheetaldeen got married with  Vidhyadhari.  Two sons and two daughters were born to Vidhyadhari, they  being Smt.Savitri, Naresh @ Ramesh, Ms.Chanda @ Durga and Baliram,  while Sukhrana Bai does not have any children.   4.      Vidhyadhari in her application before the Trial Court (SC No.3/96),  besides herself, disclosed the names of her children as the legal heirs of  Sheetaldeen.  It was also revealed that deceased Sheetaldeen had  nominated her for receiving amounts under the Provident Fund, Family  Pension Scheme and Coal Mines Deposits Life Scheme.  She also  disclosed that she has received a sum of Rs.45036/- towards gratuity  amount of the deceased from the employer of Sheetaldeen, i.e., Western  Coalfields Ltd.  She, therefore, claimed the Succession Certificate on the  basis of the nominations besides her marriage with Sheetaldeen. 5.      As stated above, both the Succession Cases came to be  consolidated and tried together.  In SC No.10/95, filed by Sukhrana Bai,  Vidhyadhari raised an objection that Sukhrana Bai was not the heir of  deceased Sheetaldeen and though Sheetaldeen initially nominated  Vidhyadhari to receive the dues after his death as per Form A,  subsequently he cancelled that nomination and filled in a second Form A in  which he had nominated Smt.Vidhyadhari and in description of his family  members he had indicated her to be the wife, one Naresh as his son and  Ms.Chanda @ Durga as his daughter.  It was also pointed out that  Sukhrana Bai had not claimed any dues from the office of Sheetaldeen.  

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WCL which is a party, contended that the non-applicant had no knowledge  about the valid marriage between the deceased and Sukhrana Bai and it  was also admitted that Sheetaldeen had nominated Vidhyadhari to receive  the total amount and had registered her as his nominee.  Following issues  came to be framed by the Trial Court: \023(1) Whether the legal widow of the deceased Sheetaldeen  is the applicant Smt.Sukhrana of Case No.10/95 or  Vidhyadhari of Case No.3/96? (2)     Whether Smt.Savitri, Naresh aias Ramesh, Ms.Chanda  alias Durga and Baliram, as mentioned in the application of  Case No.3/96 are the children of applicant Vidhyadhari, sired  by deceased Sheetaldeen? (3)     If yes, whether they are the heirs of deceased  Sheetaldeen? (4)     For receiving the amount due to deceased  Sheetaldeen, issuance of Succession Certificate in whose  favour would be just and proper? (5)     Relief and expenses?

Both oral and documentary evidence was led by both the parties.   Sukhrana Bai examined herself as AW1 along with three other witnesses,  namely, Kanhaiyalal (AW2), Ram Prasad (AW3) and Shivnath (AW4).  On  the basis of the evidence led, the Trial Court held Vidhyadhari to be the  legal widow of deceased Sheetaldeen.  It was also held that the children  Smt.Savitri, Naresh @ Ramesh, Ms.Chanda @ Durga and Baliram  mentioned in SC No.3/96 were sired by deceased Sheetaldeen and were  his children. They were also held to be heirs of deceased Sheetaldeen.   The Trial Court also held that the Succession Certificate was liable to be  issued in favour of Vidhyadhari and not in favour of Sukhrana Bai.  In its  judgment the Trial Court referred to an admission made by Vidhyadhari in  her affidavit Exhibit C-7 wherein she had stated on oath that she is the  second wife of Sheetaldeen and Sukhrana Bai was the first wife.  The Trial  court also referred to the proved fact that Sheetaldeen initially had  nominated Sukharana Bai as a nominee indicating her to be his wife in  Form A.  After discussing the voluminous oral evidence led by the parties,  the Trial Court held that Sukhrana Bai was earlier married to Sheetaldeen  and there were no issues out of this wedlock and thereafter Sheetaldeen  married Vidhyadhari and for about 20 to 25 years he lived with Vidhyadhari  till his death while Sukhrana Bai never came to stay with him.  The  observation of the Trial Court in para 18 of the its Judgment is as under: \023\005which means that either Sukhrana Devi deserted him or  Sheetaldeen left her.\024  

The Trial Court then proceeded to hold in Para 19 that Sheetaldeen  belonged to the \021Shudra\022 community and in Shudra community if the wife  deserts her husband and no effort is made by the husband to take her back  as his wife then under Hindu law it is presumed that divorce has taken  place between the two, as has been held by the Supreme Court in Govind  Raju vs. K. Muni Swami Gonder & Ors. [AIR 1997 SC 10].  A finding was  given that Sheetaldeen had divorced Sukhrana Bai and solemnized second  marriage with Vidhyadhari and, therefore, the marriage of Vidhyadhari  could not be said to be illegal.  On that basis the Trial Court excluded the  claim of Sukhrana Bai and granted the claim of Vidhyadhari holding that  she was entitled to receive the amount of Rs.1,30,000/- from WCL towards  Sheetaldeen\022s Provident Fund, Life Cover Scheme, Pension and amount of  Life Insurance and amount of other dues payable to the successor of  Sheetaldeen on his death.  It was also observed in para 23 as under: \023\005.In that amount, applicant Vidhyadhari and her sons and  daughters will have equal share.  On receipt of the said  amount, applicant Vidhyadhari shall distribute the amount to  her sons and daughters as per their share\005..\024

Resultantly the Trial Court dismissed Sukhrana Bai\022s application. 6.      The High Court, however, concluded that the theory of customary  divorce between Sukhrana Bai and Sheetaldeen was a myth.  It was noted

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that there was no evidence on record to hold that customary divorce had  taken place between Sukhrana Bai and Sheetaldeen nor was there any  pleading about the factum of any customary divorce or existence of any  custom.  Relying on a reported decision in Smt.Savitri Devi v. Manorama  Bai [AIR 1998 MP 114], the High Court came to the conclusion that the  alleged customary divorce between Sukhrana Bai and deceased  Sheetaldeen was not established.  Stopping here itself, the High Court  allowed both the appeals and directed that the Succession Certificate  should be granted in favour of Sukhrana Bai. 7.      Learned counsel appearing for the appellant Vidhyadhari strenuously  urged that the High Court could not have straightaway granted the claim of  Sukharana Bai.  Learned counsel pointed out that in grant of certificate in  favour of Sukhranai Bai, the claim of four children was altogether ignored  as, admittedly, Sukhrana Bai had sought the certificate for herself alone.   Learned counsel points out that even if the theory of divorce between  Sukhrana Bai and Sheetaldeen is described and even if Vidhyadhari is not  held to be his legal wife since the children admittedly were sired by  Sheetaldeen, they were legitimate children entitled to inherit Sheetaldeen.   On this point, learned counsel relied on Rameshwari Devi v. State of  Bihar & Ors. [(2000) 2 SCC 431].  Learned counsel pointed out that in her  application Vidhyadhari had specifically mentioned the names of four  children as the legal heirs besides herself, while Sukhrana Bai had claimed  that she was the only legal heir of Sheetaldeen.  Learned counsel tried to  urge, relying on a reported decision in Yamanji H. Jadhav v. Nirmala  [(2002) 2 SCC 637], that in this case the customary divorce should have  been held to be proved.   8.      As against this, learned counsel appearing for respondent Sukhrana  Bai supported the judgment of the High Court and contended that she  being the only legal heir of deceased Sheetaldeen, she alone was entitled  to the grant of Succession Certificate as ordered by the High Court.   9.      There can be no dispute that Vidhyadhari had never pleaded any  divorce, much less customary divorce between Sukhrana Bai and  Sheetaldeen.  There were no pleadings and hence no issue arose on that  count.  In our opinion, therefore, the High Court was right in holding that  marriage between Sukhrana Bai and Sheetaldeen was very much  subsisting when Sheetaldeen got married to Vidhyadhari.  Learned counsel  tried to rely on the reported decision in Govind Raju\022s case (supra).  We  are afraid the decision is of no help to the respondent as basically the issue  in that decision was about the legitimacy of the children born to a mother  whose first marriage was not dissolved and yet she had contracted the  second marriage.  This is apart from the fact that in the present case there  were no pleadings about the existence of custom and alleged divorce  thereunder.  Therefore, there was no evidence led on that issue.  In our  opinion the decision in Govind Raju\022s case is not applicable.  Even the  other decision in Yamanaji\022s case is not applicable as the facts are entirely  different.  In Yamanji\022s case there was a Deed of Divorce executed by the  wife.  The question was whether there was a customary divorce.  There  was a custom permitting divorce by executing deed existing in the  community to which the parties belonged.  Such is not the situation here.   There is neither any Divorce Deed nor even the assertion on the part of  Vidhyadhari that Sheetaldeen had divorced Sukhrana Bai.  We, therefore,  accept the finding of the High Court that Sukhrana Bai was the legally  wedded wife while Vidhyadhar could not claim that status.  10.     However, unfortunately, the High Court stopped there only and did  not consider the question as to whether inspite of this factual scenario  Vidhyadhari could be rendered the Succession Certificate.  The High Court  almost presumed that Succession Certificate can be applied for only by the  legally wedded wife to the exclusion of anybody else.  The High Court  completely ignored the admitted situation that this Succession Certificate  was for the purposes of collecting the Provident Fund, Life Cover Scheme,  Pension and amount of Life Insurance and amount of other dues in the  nature of death benefits of Sheetaldeen.  That Vidhyadhari was a nominee  is not disputed by anyone and is, therefore proved.  Vidhyadhari had  claimed the Succession Certificate mentioning therein the names of four  children whose status as legitimate children of Sheetaldeen could not and

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cannot be disputed.  This Court in a reported decision in Rameshwari  Devi\022s case (supra) has held that even if a Government Servant had  contracted second marriage during the subsistence of his first marriage,  children born out of such second marriage would still be legitimate though  the second marriage itself would be void.  The Court, therefore, went on to  hold that such children would be entitled to the pension but not the second  wife.  It was, therefore, bound to be considered by the High Court as to  whether Vidhyadhari being the nominee of Sheetaldeen could legitimately  file an application for Succession Certificate and could be granted the  same.  The law is clear on this issue that a nominee like Vidhyadhari who  was claiming the death benefits arising out of the employment can always  file an application under Section 372 of the Indian Succession Act as there  is nothing in that Section to prevent such a nominee from claiming the  certificate on the basis of nomination.  The High Court should have realised  that Vidhyadhari was not only a nominee but also was the mother of four  children of Sheetaldeen who were the legal heirs of Sheetaldeen and  whose names were also found in Form A which was the declaration of  Sheetaldeen during his life-time.  In her application Vidhyadhari candidly  pointed out the names of the four children as the legal heirs of  Sheetaldeen.  No doubt that she herself has claimed to be a legal heir  which status she could not claim but besides that she had the status of a  nominee of Sheetaldeen.  She continued to stay with Sheetaldeen as his  wife for long time and was a person of confidence for Sheetaldeen who had  nominated her for his Provident Fund, Life Cover Scheme, Pension and  amount of Life Insurance and amount of other dues.  Under such  circumstances she was always preferable even to the legally wedded wife  like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and  who had gone to the extent of claiming the Succession Certificate to the  exclusion of legal heirs of Sheetaldeen.  In the grant of Succession  Certificate the court has to use its discretion where the rival claims, as in  this case, are made for the Succession Certificate for the properties of the  deceased.  The High Court should have taken into consideration these  crucial circumstances.  Merely because Sukhrana Bai was the legally  wedded wife that by itself did not entitle her to a Succession Certificate in  comparison to Vidhyadhari who all through had stayed as the wife of  Sheetaldeen, had born his four children and had claimed a Succession  Certificate on behalf children also.  In our opinion, the High Court was not  justified in granting the claim of Sukhrana Bai to the exclusion not only of  the nominee of Sheetaldeen but also to the exclusion of his legitimate legal  heirs.  11.     Therefore, though we agree with the High Court that Sukhrana Bai  was the only legitimate wife yet, we would chose to grant the certificate in  favour of Vidhyadhari who was his nominee and the mother of his four  children.  However, we must balance the equities as Sukhrana Bai is also  one of the legal heirs and besides the four children she would have the  equal share in Sheetaldeen\022s estate which would be 1/5th.  To balance the  equities we would, therefore, chose to grant Succession Certificate to  Vidhyadhari but with a rider that she would protect the 1/5th share of  Sukhrana Bai in Sheetaldeen\022s properties and would hand over the same  to her.  As the nominee she would hold the 1/5th share of Sukhrana Bai in  trust and would be responsible to pay the same to Sukhrana Bai.  We  direct that for this purpose she would give a security in the Trial Court to  the satisfaction of the Trial Court. 13.     It should not be understood by the above that we are, in any way,  deciding the status of Vidhadhari finally.  She may still prosecute her own  remedies for establishing her own status independently of these  proceedings. 14.     In the result the appeal is allowed.  In the facts and circumstances of  the case, there will be no order as to costs.