IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CASE NO.: F.A.O No.177 of 2005
DATE OF DECISION : July 23,2009
Sheela Devi .......Appellant
versus
General Public
......Respondent
CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR
PRESENT: Mr. H.S. Saggu, Advocate
for the appellant.
NIRMALJIT KAUR, J.
The appellant, Sheela Devi had applied for succession
certificate to claim the amount lying with the Punjab State Electricity Board
(here-in-after referred to as `P.S.E.B.’) which became due on the death of
Hans Raj, brother of the appellant, in view of registered Will executed by
deceased-Hans Raj. Learned Additional Civil Judge (Sr. Divn.), Dhuri,
exercising the powers of District Judge under Indian Succession Act,
refused to grant the certificate to the appellant. The petition under Section
372 of the Indian Succession Act, was dismissed, firstly, on the ground
that the appellant should file a civil suit to get a declaration that she is the
only legal heir and secondly, the appellant did not disclose that the
deceased had a divorced wife.
In the petition filed under Section 372 of the Indian Succession
Act, notice was given to the General Public. P.S.E.B. put in appearance
and contended in order to rebut the evidence, produced by the appellant,
they produced Exhibit R-1, the original letter written by Hans Raj,
wherein, he had mentioned that he was married. While dismissing the
petition under Section 372 of the Indian Succession Act, reliance was
placed on the Rules, produced by the witness of P.S.E.B and reliance was
F.A.O No.177 of 2005 -2-
placed on Rule 6.16 B of Punjab Civil Services Rules, Chapter-VI, Volume-
II, wherein, the “family” includes “wife or wives” including judicially
separated “wife or wives” in the case of the male officer and as per Rule
16.16-A, family of the deceased is eligible for pension and other benefit of
service after the death of male officer and since the appellant had not
impleaded any family member of the deceased nor had sought any
declaration regarding the fact that she is only legal heir of the deceased,
the appellant was not entitled to the Succession Certificate.
It is evident from the order of the trial Court that Sheela Devi
had herself appeared as her own witness AW1 and examined AW2
Parkash Chand, AW3 Gandhi Singh, Advocate, AW4 Som Nath Malhotra
and thereafter closed the evidence. To rebut this evidence, P.S.E.B.
examined Kahan Singh RW1, Gurdial Singh RW2 and thereafter, they
closed the evidence. Sheela Devi, when appeared in the witness box as
AW1, deposed that Hans Raj was her brother. His mother has died. He has
executed a registered Will on 11-04-1997 in her favour and on the basis of
this Will, she is entitled to receive the amount ofRs.75,000/- lying deposited
with P.S.E.B, after the death of his brother Hans Raj. Parkash Chand
(AW2) deposed that on 11-04-1997, Hans Raj has executed a Will in
favour of Sheela Devi, which was read over and explained to him, who after
admitting its correctness, signed the same in his presence and proved the
same as Ex.A1. He deposed that when the Will had been executed in
favour of Sheela Devi, Hans Raj was in sound disposing mind.
Gandhi Singh, Advocate (AW3) also proved the execution of the
Will, copy of which is Ex.P1. Som Nath Malhotra (AW4) deposed
that Hans Raj was working in P.S.E.B. He has brought the
service record. As leave encashment of 227 days, amount of which come
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to Rs.33,657/-. G.P amount is Rs.48,447/- which is payable to him.
Balance salary is lying of Rs.12,153/-, Ex-gratia amount comes to
Rs.50,000/-.
Notice of motion was issued in this case and the General
Public was ordered to be served through publication in “Chardi Kalan”. As
per the Office report, General Public was duly served. However, no one
has put in appearance on behalf of the General Public. It may be pointed
out that the P.S.E.B had appeared in the Court of Civil Judge, Dhuri, in
response to the Public Notice to the General Public. However, no one has
put in appearance in the present appeal. The deceased had a divorced
wife. The observations of the trial Court that the appellant did not disclose
the fact in her application, is therefore, not valid, in as much as, exhibit R-1
which was produced by the P.S.E.B and relied upon by the trial Court itself
mentioned that he has obtained divorce from his wife. Thus, at the time of
filing of the application i.e. on 20-05-1999, there was no other relative of
the deceased because the wife of the deceased was divorced much earlier.
Further, none has raised any objection, even the said divorced wife, to the
claim of the applicant. So, there is no family or alleged legal heir has come
forward to contest the grant of succession certificate claimed
by the appellant. The relevant rule, relied on by the Additional Civil Judge
(Sr. Divn.), Dhuri, while dismissing the petition of the appellant, is
reproduced below :-
” Rule 6.16 B of Punjab Civil Services Rules,
Chapter-VI, Volume-II : “family” includes “wife or
wives” including judicially separated “wife or wives” in
the case of the male officer and as per Rule 16.16-A
F.A.O No.177 of 2005 -4-“family of the deceased is eligible for pension and
other benefit of service after the death of male officer.”
A perusal of the above Rule show that the family does not
include a divorced wife. The judicially separated “wife or wives” is a wife
and not a divorced wife and would be termed `widow’ after the death of her
husband. The divorced wife does not fall under the definition of legal heir.
Thus, the reliance placed on the above mentioned rules, in order to deny
the Succession Certificate, on the ground the divorced wife was not
impleaded as party or she was not mentioned as the surviving legal heir,
cannot be sustained. On the directions of this Court, the appellant filed her
affidavit dated 28-05-2007 with the following declaration :-
” 1.That deponent is real sister of deceased Hans Raj
regarding whom succession certificate is being claimed
by her.
2. That said Hans Raj did not have any son or daughter,
brother or sister or any other legal heir.
3. That his wife obtained divorce more than 15 years
before his death on 09-01-1999 and she never
claimed any right to the estate of deceased Hans Raj.
4. That even according to Will executed by said Hans
Raj dated 11-04-1997 which was duly proved on the
record, the deponent is entitled to succeed to the
estate of said Hans Raj.
5. That the deponent is the only legal heir of said Hans
Raj and is entitled to grant of succession certificate as
prayed for.”
In view of the above discussion, it is apparent that deponent is
the only legal heir of the deceased-Hans Raj. The wife obtained divorce
and is, therefore, not a legal heir. Rather, she too has not come forward to
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contest the claim of the appellant. No alleged family member has come
forward to contest the claim.
Taking into evidence produced by Sheela Devi and affidavit
dated 28-05-2007 placed on record and none having appeared on behalf of
the General Public, despite service, there is no impediment in allowing the
appeal.
Accordingly, the same is accepted and the order of the
Additional Civil Judge (Sr. Divn.). Dhuri dated 20-10-2004 is set aside and
the Succession Certificate to the estate of Hans Raj son of Fakir Chand
resident of Dhri to collect the amount lying with the P.S.E.B., Ludhiana is
ordered to be issued.
(NIRMALJIT KAUR)
JUDGE
July 23, 2009
gurpreet
Whether to be referred to the Reporter : Yes / No