Indian Succession Act, 1925: s.372 - Nominee - Right of - Claim for grant of Succession Certificate in respect of movable properties of deceased-husband - By first wife and separate claim by second wife and her children sired by deceased - Claim of second wife based on nomination in her favour - Trial Court granted Succession Certificate to the second wife on the ground that there was divorce between deceased and first wife and second wife was his legal widow - On appeal, High Court held that there was no evidence of divorce between first wife and deceased and granted Succession Certificate to first wife - Justification of - Held : The fact that second wife was nominee is proved - A nominee has a right to file application under s.372 - Deceased lived with the second wife for 20-25 years till his death and nominated her for availing death benefits - Under such circumstances, she was preferable even to legally wedded wife - High Court was not justified in granting claim of first wife to the exclusion not only of the nominee of deceased but also to the exclusion of his legitimate legal heirs - Therefore accepting the view of High Court that first wife was legitimate wife, yet, certificate is granted in favour of second wife who was mother of four children of deceased - To balance the equities, Succession Certificate is granted with a rider that second wife would protect 1/5th share of first wife. One `S' was working in mines of Western Coalfield. `SB' was first wife of `S'. There was no issue out of this wedlock. `S' then married `V'. Two sons and two daughters were born to `V'. `S' died while in service. Both `SB' and `V' filed separate application for obtaining the Succession Certificate with respect to the movable properties of deceased. It is admitted that `S' had nominated `V' to receive the dues and death benefits. `V' in her application besides herself disclosed names of her children as the legal heirs of `S'. Trial Court held `V' to be the legal widow of `S' and her children to be legal heirs of `S' and held `V' entitled to grant of the Succession Certificate. The conclusion of Trial Court was based on the opinion that `S' belonged to the `Shudra' community and in Shudra community if the wife deserted her husband and no effort was made by the husband to take her back as his wife then under Hindu law it is presumed that divorce had taken place between the two. Thus, a finding was given that `S' had divorced `SB' and thereafter solemnized second marriage with `V' and, therefore, the marriage of `V' was legal. On appeal, High Court held that there was no evidence to hold that customary divorce had taken place between `SB' and `S' nor was there any pleading about the factum of any customary divorce or existence of any custom. Stopping here itself, the High Court directed that the Succession Certificate should be granted in favour of `SB'. In appeal to this Court, `V' contended that while granting certificate in favour of `SB', the claim of four children was altogether ignored as, admittedly, `SB' had sought the certificate for herself alone; and that even if there was no divorce between `SB' and `S' and `V' was not held to be his legal wife but since the children admittedly were sired by `S', they were legitimate children entitled to inherit `S'. Citation: 2008 AIR 1420,2008(1 )SCR1030,2008(2 )SCC238 ,2008(1 )SCALE580 , Court Name: Supreme Court Allowing the appeal, the Court HELD: 1.1 There can be no dispute that `V' had never pleaded any divorce, much less customary divorce between `SB' and `S'. There were no pleadings and hence no issue arose on that count. Therefore, the High Court was right in holding that marriage between `SB' and `S' was very much subsisting when `S' got married to `V'. Unfortunately, the High Court stopped there only and did not consider the question as to whether inspite of this factual scenario, `V' 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 and 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 deceased. The fact that `V' was a nominee is not disputed by anyone and is, therefore proved. `V' had claimed the Succession Certificate mentioning therein the names of four children whose status as legitimate children of `S' could not and cannot be disputed. [Paras 9, 10] [1038-G-H; 1039-E-H] Govind Raju v. K. Muni Swami Gonder AND OTHERS AIR 1997 SC 10; Yamanji H. Jadhav v. Nirmala (2002) 2 SCC 637 - distinguished. Smt. Savitri Devi v. Manorama Bai AIR (1998) MP 114; Rameshwari Devi v. State of Bihar AND OTHERS (2000) 2 SCC 431 - referred to. 1.2. The law is clear that a nominee like `V' who was claiming the death benefits arising out of the employment can always file an application under s.372 of the Indian Succession Act as there is nothing in that provision to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that `V' was not only a nominee but also was the mother of four children of `S' who were the legal heirs of `S' and whose names were also found in Form A which was the declaration of `S' during his life-time. In her application `V' candidly pointed out the names of the four children as the legal heirs of `S'. 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 `S'. She continued to stay with `S' as his wife for long time and was a person of confidence for `S'; 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 `SB' who had never stayed with `S' as his wife and who had claimed the Succession Certificate to the exclusion of legal heirs of `S'. [Para 10] [1040-C-G] 1.3 In the grant of Succession Certificate, the court has to use its discretion where the rival claims, are made for the Succession Certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Though High Court was right in holding that `SB' was the only legitimate wife yet, the certificate is granted in favour of `V' who was his nominee and the mother of his four children. However, to balance the equities, the Succession Certificate is granted to `V' but with a rider that she would protect the 1/5th share of `SB' in `S' properties and would hand over the same to her. As the nominee `V' would hold the 1/5th share of `SB' in trust and would be responsible to pay the same to `SB'. For this purpose she is directed to give a security in the Trial Court to the satisfaction of the Trial Court. This Court is not in any way, deciding the status of `V' finally. She may still prosecute her own remedies for establishing her own status independently of these proceedings. [Paras 10-12] [1040-B-H; 1041-C-F] Anuradha Mutatkar and Prakash Shrivastava for the Appellants. Sunita Sharma, Sudha Pal, Subramonium Prasad, Varuna Bhandari Guguani, Rameshwar Prasad Goyal and Sunil Roy for the Respondents.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=30159
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.
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:
(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:
which means that either Sukhrana Devi deserted him or
Sheetaldeen left her.

The Trial Court then proceeded to hold in Para 19 that Sheetaldeen
belonged to the Shudra 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 s 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:
.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 ..

Resultantly the Trial Court dismissed Sukhrana Bai s application.
6. The High Court, however, concluded that the theory of customary
divorce between Sukhrana Bai and Sheetaldeen was a myth.  It was noted
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 s 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 s case is not applicable.  Even the
other decision in Yamanaji s case is not applicable as the facts are entirely
different.  In Yamanji s 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
cannot be disputed.  This Court in a reported decision in Rameshwari
Devi s 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 s 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 s 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.

“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate. Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage void. Sons of the second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would be entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority”.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH 
AT HYDERABAD

FRIDAY, THE FOURTEENTH DAY OF OCTOBER
TWO THOUSAND AND ELEVEN

PRESENT

THE HON'BLE SRI JUSTICE K.C.BHANU

CIVIL MISCELLANEOUS APPEAL No. 1215 OF 2008

 

Between :

Sugunamma and others.                                     …APPELLANTS

      A N D

Contral Power Distribution 

Company of A.P. Ltd. and others.                     …RESPONDENTS

 

           THE HON’BLE SRI JUSTICE K.C.BHANU                

 

CIVIL MISCELLANEOUS APPEAL No. 1215 of 2008

JUDGMENT :

This Civil Miscellaneous Appeal under Section 384 of Indian Succession Act, 1925 is directed against the order, dated 29.10.2007 in O.P.No.3120 of 2004 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby, the Original Petition filed under Section 372 of the Act, originally against appellant No.1 and respondent Nos.1 and 8 /respondent Nos.1 to 3 and later impleading appellant Nos.2 to 5 /respondent Nos.4 to 7, for grant of succession certificate enabling respondent Nos.2 to 7 / petitioners to withdraw an amount of Rs.3,58,768/- along with accrued interest thereon and monthly pension from the office of respondent No.1 herein, was allowed.

2.       The appellants in the appeal are the respondent Nos.4 to 7, respondent Nos.1 and 8 in the appeal are respondent Nos.2 and 3 and respondent Nos.2 to 7 in the appeal are petitioners, before the trial Court.  For better appreciation of facts, the parties hereinafter are referred to, as they are arrayed before the trial Court.

3.       The petitioners filed the Original Petition states as follows:

One Late Pentaiah was working as Lineman in Respondent No.2 - Central Power Distribution Company of Andhra Pradesh Limited, Hyderabad; that he died on 07.01.2002 due to Cardiac arrest; that petitioner No.1 is his wife, and petitioner Nos.2 to 6 are the children of petitioner No.1 born through him; that he nominated petitioner No.1 to receive the service benefits in case of his death while in service; that after his death, the petitioners approached respondent No.2 Company furnishing the details of the amount to her; that on 11.02.2002, the petitioners received a notice on behalf of respondent No.1 from the office of Sri M.Veeresham, Advocate, whereunder, respondent No.1 claimed to be the legally wedded wife of late Pentaiah having married him in the year 1987 and having begotten four children; that respondent Nos. 4 to 7 got impleaded subsequently claiming that they are entitled to receive the service benefits on the demise of late Pentaiah. 

          Late Pentaiah had never got married any other woman more specifically with respondent No.1 and that he always lived with her and other petitioners.  There was no reference to respondent No.1 during the life time of late Pentaiah.  Neither respondent No.1 nor her children ever came to the house of the petitioners and claimed their relationship with late Pentaiah.  The deceased married petitioner No.1 in the year 1970.  Even if the marriage with respondent No.1 in the year 1987 is to be accepted, it is a void marriage.  As there was no response from the department, the petitioners approached the Administrator General of Andhra Pradesh in C.A.No.93 of 2002 under Section 29 of Administrator General Act, 1963 for grant of letter of administration in respect of the assets of late Pentaiah against Respondent No.2 - Central Power Distribution Company, Hyderabad and respondent No.1. The Administrator General, however, closed C.A.No.93 of 2002 as it was beyond his pecuniary jurisdiction with a liberty to the party to approach appropriate Court of law for the relief. Respondent Nos.1, 4 to 7 are strangers to the family of the petitioners and late Pentaiah and are not entitled to any of the benefits. Hence, the Original Petition.

4.          Respondent No.1 filed counter-affidavit admitting that late Pentaiah was working as a Lineman in Respondent No.2 - Company, but, contending that the petitioners alone are not entitled to receive the service benefits of late Pentaiah.  She also denied that late Pentaiah nominated petitioner No.1 to be entitled to receive the service benefits in case of death of late Pentaiah while in service.  It was further contended that she approached the department with a request to pay the service benefits available on the death of late Pentaiah and also admitted to have issued a notice to the petitioners through her advocate on 11.02.2002 claiming herself to be the legally wedded wife of late Pentaiah having got married him in the year 1987 and having begotten four children.  She stated that late Pentaiah died in their house at Uppuguda.  She denied her marriage with late Pentaiah to be void.  She denied to be totally stranger to the family of the petitioners of the deceased and asserted to be the legally wedded wife of the deceased.  She further contended that herself and respondent Nos.4 to 7 are entitled to the benefits payable on the death of late Pentaiah.  It was further contended that the name of respondent No.1 and respondent Nos.4 to 7 were included in the nomination form on 6.8.1996.  She further contended that the relationship between petitioner No.1 and late Pentaiah are not cordial and that with the consent of petitioner No.1 only late Pentaiah married her and used to reside with  her.  It is also contended that the petitioners never objected for the marriage of late Pentaiah with respondent No.1 and late Pentaiah living with her.   

5.          Basing on the above pleadings, the following issues were framed for trial:

“1.     Whether the first respondent is the legally wedded wife of late Pentaiah?

2.                Whether respondent Nos.4 to 7 are the legitimate children of late Pentaiah and are entitled for the death benefits of the deceased Pentaiah?

3.                Whether the petitioners are alone entitled for the Succession Certificate and the pensionary benefits on the death of the deceased?”

6.          During trial, on behalf of the petitioners, P.Ws.1 and 2 were examined and got marked Exs.A.1 to A.3, and on behalf of the respondents, R.Ws.1 to 4 were examined and Exs.B.1 to B.6 were got marked.

7.       The Trial court, after considering the oral and documentary evidence, allowed the Original Petition granting Succession Certificate to the petitioners to enable them to withdraw an amount of Rs.3,58,768/- along with the accrued interest thereon and the monthly pension from the office of respondent No.2 in the trial Court. Challenging the same, respondent Nos.1 and 4 to 7 filed the present appeal. 

8.          Learned Counsel for the appellants/respondent Nos.1 and 4 to 7 contended that Exs.B.3 to B.6 have not been objected when they were marked; that they show about the relationship of the appellants as the wife and children of late Pentaiah; that Ex.A.3 would clearly go to show that late Pentaiah gave a nomination to his Employer nominating appellant No.1 as his wife, and appellant Nos.2 to 5 as his children and those documents have not been taken into consideration by the trial Court; that under Section 16 of the Hindu  Marriage Act, 1955 (for short, ‘the Act’) even if the marriage is void, children born to the second wife will get status of legitimate children and hence, he prays to grant a share to appellant Nos.4 and 5, who are still minors.

9.       On the other hand, learned counsel for the respondent Nos. 2 to 7 / petitioners contended that Section 16 (1) of the Act will not come into operation unless the marriage is established between the parties; that there is no evidence of whatsoever to show that the marriage of the deceased Pentaiah was performed with Sugunamma i.e., Appellant No.1 herein in accordance with Caste custom; that the documents relied upon by the appellants do not give the legal status of wife with late Pentaiah and therefore, the trial Court after an elaborate consideration of evidence on record rightly granted succession certificate and that order needs no interference by this Court.

10.          Appellant No.1 claims to be the second wife of late Pentaiah and appellant Nos. 2 to 5 are children of appellant No.1 born claimed to be through late Pentaiah.  It is not in dispute that late Pentaiah worked as a Lineman in Respondent No.2 Company.  It is also not in dispute that he died on 07.01.2002 due to cardiac arrest.  It is also not in dispute that respondent No.2 herein filed an application before the Administrator General for grant of legal heir certificate.  On the point of pecuniary jurisdiction, that application was returned for presentation before appropriate Court.  The present Original Petition was filed by respondent Nos.2 to 7 before the trial Court for grant of Succession Certificate under Section 372 of the Hindu Succession Act, 1956.

11.     The appellants did not dispute that respondent No.2 is legally wedded wife, and respondent Nos.3 to 7 are the children born to respondent No.2 through late Pentaiah. The trial Court after considering the evidence available on record came to the conclusion that the marriage of Sugunamma/appellant No.1 with late Pentaiah has not been established and therefore, even the children of appellant No.1 cannot get the status of legitimate children as the marriage has not been established.

12.          Learned counsel for the respondent Nos.2 to 7 placed reliance on a decision reported in Smt Nimbamma V. Rathnamma[1], wherein it was held thus (para No.4):

“I have applied my mind to the contention of the learned counsel for the petitioner.  Even if in the Voters’ list under Ex.P.4, Nimbamma is mentioned as the wife, but from the evidence it is proved that prior his coming in to company with Nimbamma either by marriage or by illicit relationship whatsoever it may be, that will not give the revision-petitioner the status of wife when it is established that with Rathnamma he marriage 20 years ago or more than that and it is not established that deceased had divorced his wife Smt Rathnamma who is his first wife according to law, when it is not proved that deceased has got decree for divorce in the legal proceeding, divorcing Rathnamma prior to the martial relationship with the petitioner even if the said marriage with revision-petitioner might have been performed.  That, when the same was performed in the life-time of the first wife, i.e, when deceased –Shekaraiah had Smt Rathnamma, his first wife living, then the marriage if any, with Nimbamma was in violation of first condition as mentioned in Section 5 of the Hindu Marriage Act.  One of the conditions is that neither the spouse has his or her spouse living at the time of second marriage.  Section 11 declares that marriage performed in breach of Section 5 (i) and (iv) and (v) of the Act shall be null and void.  The effect of marriage being null and void is that it is non est and law does not recognize it and takes it that such a marriage has not been taken place.  Such provisions as Section 5 (i) and 11 of the Hindu Marriage Act render position of lady married with a person who had his spouse living at the time of second marriage to be that of a kept mistress and not that of a married wife and such lady is not entitled to succeed to the properties of that person such as the present deceased-Shekaraiah”.  

13.     He also relied on a decision reported in Mrs.Sudershan Karir and others V. The State and others[2], wherein it was held thus (para No.5):

“ …… The trial Court is perfectly right in observing that S.16(1) comes into operation only in a case in which a marriage is in fact proved to have taken place between two person, but which may be otherwise null and void as per the provisions of S.11.  S.11 provides for getting a marriage declared null and void on certain grounds as stated therein.  The present is not a case of a marriage having been performed between Smt Sudershan Karir and Sham Sunder Karir which may otherwise be declared or alleged to be null and void. The present is a case of no marriage between these persons. As such, 16 (1) does not come in aid to the case of the children born to Smt Sudershan Karir”.    

14.     He also relied on a decision reported in Ramkali and another V. Mahila Shyamwati and others[3], wherein it was held thus (para No.17):

“However, when a de jure or a de facto marriage is rendered null and void under Section 11 or 12 of the Hindu Marriage, 1955 or is otherwise found to be void, the statutory fiction envisaged under Section 16 of the Hindu Marriage Act, 1955 comes into play protecting the interest of a child born out of such a marriage conferring upon him the status of a legitimate child.  The condition precedent for making such a statutory presumption available however is that there must be either a de jure or a de facto marriage.  In this connection, it may further be noticed that this Court in its decision in the case of Reshamlal V. Balwant Singh, reported in 1994 Jab LJ 160 had clearly observed that the provision contained in Section 16 of the Hindu Marriage Act, 1955 has to be interpreted to mean that there must be a marriage, which would be hit by the provisions of the said Act.  In that case, it had been found that there was no marriage at all and therefore, the provision of Section 16 of the said Act could not be said to be available to the appellant”.

From the above decisions, it is clear that in order to invoke Section 16 of the Act it is a condition precedent that in a case in which a marriage is in fact proved to have taken place between two persons the children of such marriage shall be legitimate even if the marriage is void.

15.          R.Ws.2 to 4 were not shown to be present at the time of marriage of R.W.1 with late Pentaiah.  Even assuming for a moment that the evidence of R.Ws. 2 to 4 does not inspire confidence because of certain infirmities and improbabilities, the respondents produced Exs.B.3 to B.6, which would go to show about the relationship of the appellants with late Pentaiah. Similarly Ex.A.3 is the certified copy of order of the Administrator General, wherein it was observed that the Employer of late Pentaiah produced the nomination papers said to have been given on 06.08.1996, whereunder late Pentaiah has furnished the names of his family members.  In Ex.A.3 appellant No.1 was shown as wife, and appellant Nos.2 to 4 were shown as daughters of late Pentaiah.  So, when a statement is given by a person who is dead, then such statement is admissible with regard to the relationship between the parties under Section 32 (5) of the Indian Evidence Act, 1872 which reads as follows:

“When the statement relates to the existence of any relationship 1[ by blood, marriage or adoption] between persons as to whose relationship 1[ by blood, marriage or adoption]the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised or is made in will or deed relating to family affairs”.

Declarations by deceased regarding relationship made ante litem motam, are admissible to prove matters of pedigree.  Such declarations are receivable on the ground of necessity, better evidence of the facts being often unobtainable, and partly because the peculiar means of knowledge possessed by declarant, and his absence of interest to misrepresent, both the declarations with a prima facie probability of truth.  From the above provision, it is clear that statement made by deceased is relevant when they mutate to the existence of any relationship between persons as to whose relationship the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised.  

16.     It is not the case of respondent Nos.2 to 7 / petitioners before the Court below that late Pentaiah has not given any statement or declaration before his Employer nominating the appellants. The reference as made by the Administrator General has not been denied or disputed and respondent Nos.2 to 7 themselves produced the documents, which would clearly go to show that appellant No.1 is the wife and appellant Nos. 2 to 4 are the children of late Pentaiah.  In view of the fact that late Pentaiah was having first wife, another marriage if any, contacted by late Pentaiah is a void marriage under Section 11 Hindu Marriage Act, 1955.  The evidence of R.W.1 would go to show that late Pentaiah married her with the consent of P.W.1.  The evidence of R.W.1 coupled with recitals in Exs.B3 to B.6 and Ex.A.3 would clearly go to show that when P.W.1 was alive and her marriage with late Pentaiah was subsisting, late Pentaiah appears to have married again.  From the circumstances, it can be inferred that the marriage of appellant No.1 with late Pentaiah was performed and she had begotten three children out of the said wedlock.  In view of the fact that first marriage was subsisting, the second marriage of appellant No.1 with late Pentaiah is void.  In view of Section 16 (1) of the Act, the children born to the second wife though illegitimate, they can come within the definition of legitimate children and consequently, they are entitled to a share provided they are the minors.  The trial Court relied upon a decision in (AIR 2000 Supreme Court 735) wherein it was held thus:

“Under Section 16 of the Hindu Marriage Act children of void marriage are legitimate.  Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage void.  Sons of the second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would be entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority”.

In view of the above decision, it is clear that if the illegitimate children are minors they are entitled to terminal benefits.  It is not in dispute before this Court that appellant Nos.4 and 5 are still minors.  Appellant Nos.4 and 5 are entitled for a share with regard to the terminal benefits of the deceased.   

17.          Accordingly, the Civil Miscellaneous Appeal is partly allowed granting Succession Certificate to Appellant Nos.4 and 5 who are entitled for a share.  Appellant Nos. 4 and 5 are entitled to the terminal benefits of late Pentaiah in equal shares along with respondent Nos.2 to 7 as per law.  There shall be no order as to costs. 

       

                _______________

K.C. BHANU, J

OCTOBER 14, 2011

YVL

---

[1] AIR 1999 Karnataka 226

[2] AIR 1988 Delhi 368

[3] AIR 2000 Madhya Pradesh 288

as related to the persons dying intestate and maternal aunts are excluded from succession.

THE HON’BLE SRI JUSTICE V.V.S.RAO

AND

THE HON’BLE SRI JUSTICE B.N.RAO NALLA

CIVIL MISCELLANEOUS APPEAL No.271 OF 2009

19.02.2010

BETWEEN:

Kavuri Lilliyamma, W/o.late Wilson

          … Appellant

          AND

K.S.Joshua, S/o.late Satyanandam

And others

… Respondents

THE HON’BLE SRI JUSTICE V.V.S.RAO

AND

THE HON’BLE SRI JUSTICE B.N.RAO NALLA

CIVIL MISCELLANEOUS APPEAL No.271 OF 2009

JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao)

          In this appeal under Section 384 of Indian Succession Act, 1925 the maternal aunt of K.Jeevan Rao is the appellant seeking one-third share of Rs.12,91,614/- lying in deposit in the name of her nephew Jeevan Rao in State Bank of India, Maruturi Branch, Prakasam District, the seventh respondent herein. S.A.O.P.No.18 of 2000 was filed by respondents 1 to 6 herein under Section 372 of the Indian Succession Act for grant of succession certificate in their favour with regard to the Bank deposit and balance in savings account of Jeevan Rao.

          The following genealogy table would help understand the relationship between the parties.

Kommu Satyanandam

 

         Caleb                              David =                           K.S.Joshua

     (son - died)                   (son – died on 31.5.1994)                    (son – P1)

                                                    

                                         = (Mariyamma )

           (sons)                 (wife – died on 13.4.2003)

Vinay Kumar (P4)                                         Hemanth Kumar (P2)

Vijaya Chandra Bose (P5)                              Sahan Kumar  (P3)

Vidyasagar Kennedy (P6)

                                      Jeevan Rao

(unmarried son died on 23.6.2004 at the age of 36 years)

Mariyamma, Sundaramma and Sudarsanamma, (all of them died) and Lilliamma–appellant; herein are sisters. It is not disputed by the parties that Mariyamma was a Government employee. She worked as multipurpose health assistant (female) and retired on 31.05.1994. All the amounts she got towards retiral benefits were deposited by her in State Bank of India in the joint names of herself and her only son Jeevan Rao. Mariyamma died on 13.04.2003 and the Bank deposits stood transferred in the name of Jeevan Rao. He also died on 23.06.2004.

Joshua (Jeevan Rao’s paternal uncle), his two sons and three sons of late Caleb filed the succession O.P. Their case was that they are alone entitled to succeed to the estate of Jeevan Rao under Section 48 of the Indian succession Act, 1925 (Succession Act, for brevity) being relatives of father’s side. After publication of notice, Lilliyamma filed objection petition and she was impleaded as respondent No.2. She filed counter opposing the grant of succession in favour of respondents 1 to 6. Her case was that herself, Mariyamma, Sundaramma and Sudarsanamma are sisters, that after death of her three sisters, she is lone surviving heir and that she is entitled to 1/3^rd share in the property left behind by Jeevan Rao.

In the enquiry before the Court below, fifth respondent gave evidence as P.W.1 besides marking thirty documents. Lilliyamma deposed as R.W.1.  On considering the evidence, the Court below came to the conclusion that respondents 1 to 6 are in the nearest degree of kindred to late Jeevan Rao and are entitled to succeed to his estate.  The Court relied on Section 48 of Succession Act.

Learned Counsel for appellant submits that the provisions in Part IV of Succession Act dealing with consanguinity do not make any distinction among lineal and collateral consanguinity and that the law does not make any distinction between the persons related to the deceased through mother or father.  Per contra, learned Counsel for respondents 1 to 6 placing reliance on Sections 24 to 28 and 48 of Succession Act submits that when relatives standing in nearer degree of kindred to deceased are available, and such persons are related to father, those related to deceased though the mother are not entitled to succeed to the property of a person dying intestate.  He placed reliance on Siril Christian v Monga Mura[1], Thevan K. v Mathukutty[2], Mary Dowling v Margaret Merwan[3] and Ajit Datt v Ethel Walters[4].

Relevant provisions of law

          In the matter of Christian intestate succession, the provisions in Parts IV and V of Succession Act constitute substantive law.  Part IX of Succession Act contains regulatory procedure for grant and revocation of succession certificate. Sections 24 to 27 of Succession Act read as under.

24. Kindred or consanguinity.-Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.

25. Lineal consanguinity.-(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the direct descending line.

(2) Every generation constitutes a degree, either ascending or descending.

(3) A person's father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.

26. Collateral consanguinity.-(1) Collateral consanguinity is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.

(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is necessary to reckon upwards from the person deceased to the common stock and then downwards to the collateral relative, a degree being allowed for each person, both ascending and descending.

27. Persons held for purpose of succession to be similarly related to deceased.-For the purpose of succession, there is no distinction—

(a)          between those who are related to a person deceased through his father, and those who are related to him through his mother; or

(b)           between those who are related to a person deceased by the full blood, and those who are related to him by the half blood; or

(c)           between those who were actually born in the lifetime of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive.

Before we notice intestate succession and rules therefor in Chapters I and II to Part V of Succession Act, we need to understand the above provisions.  If persons descend from the common ancestor the connection or relation of persons who descended from the same common ancestor or stock is explained as kindred consanguinity.  If two persons descended in a direct line from the other or descended downwards they are related by lineal consanguinity and every ascending or descending generation constitutes a degree.  In relation to a person, father and son are related in the first degree whereas his grandfather and grandson are related in the second degree and great grandfather and great grandson third degree and so on.  The relationship between the two persons who descended from the same stock or ancestor but not in direct line from the other are said to be in collateral consanguinity.  Section 27 of Succession Act does not make any distinction between the persons related to a deceased through his father or mother, between those related to deceased by full-blood or half-blood and between those who are actually born in lifetime of the deceased and those who at the time of his death were in the womb and born alive latter.

Schedule I to Succession Act sets out the degrees of kindred and Section 28 of Succession Act explains the Schedule. For better understanding, we may set out Schedule I and then consider Section 28 of Succession Act.

 

4

	Great Grand father
				Great Grand Uncle

 

            3                                   5

 

            2                                 4

			Great Uncle’s son

 

            1                                  3                                5

	The person whose relatives are to be reckoned

 

                                                 2                              

                                                                                 4                                 6

Nephew

Son

           

 

            1                                                                   3                                  5

			Second Cousin
				Son of the Cousin german
					Son of the Nephew or Brother’s Grandson
	Grandson
								Grandson of the Cousin-german

 

            2

	Great Grandson

          The above table is explained by three illustrations in Section 28 of Succession Act.  The person who dies intestate and whose relatives are to be reckoned for the purpose of succession is shown along with persons in the first, second, third and fourth degree in ascending order and persons in first, second and third degree in descending order.  In addition, it shows the persons, namely, uncle, first cousin, nephew, second cousin, son of second cousin and grandson of second cousin.  Thus the persons who are in direct line from the same stock and common ancestor are included in the table.  Further, among four degrees, grandson of brother and son of uncle are considered to be in equal degree being each four degrees removed and grandson of first cousin being in sixth degree of kindred.  Schedule I to Succession Act nowhere speaks of maternal aunts. But, having regard to Section 27(a) of Succession Act for the purpose of succession, there cannot be distinction between those who are related to the deceased through his father and those who are related through his mother. We may now notice the rules of intestate succession contained in Chapters I and II of Part V of Succession Act.

The property of the person dying intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased in the order and according to the Rules contained in Chapter II Part V of Succession Act.  Section 33 contains the rule of succession when the intestate left behind a widow and lineal descendants.  Sections 34 to 40 deal with distribution of shares where there are lineal descendants and Sections 41 to 49 deal with distribution rules where there are no lineal descendants. These sections deal with different situations like where intestate’s father is living, father is dead but mother, brothers and children are living, a situation where along with mother, brother, sisters, children are living etc. Section 48 is relevant for this case and it deals with the situation where intestate has left neither lineal descendants nor parent nor brother nor sister. The same with its illustrations reads as under.

          48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.-Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

Illustrations

(i)                  A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

(ii)                A, the intestate, has left a great-grandfather, or a great- grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

(iii)             A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

(iv)              Ten children of one brother or sister of the intestate, and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the property.

          The four illustrations are indeed the rules of succession where deceased has no lineal descendants, parents or siblings. In other words, it deals with succession of intestate property by those related to the deceased by lineal or collateral consanguinity. From the table in Schedule I, all those mentioned in the first vertical column, are related to the deceased by lineal consanguinity and in vertical column 2 and thereafter are related to the deceased by collateral consanguinity having descended from the same stock or ancestor.  One has to keep this in mind to appreciate the four specific rules of succession, in case where only collateral consanguinous heirs (respondents) survive the deceased. Before further analysing Section 48, we may refer to the case law.

          In Siril Christian (supra), a Division Bench of Assam High Court was concerned with a question whether Hindu paternal uncle of the deceased Christian could inherit the property of the intestate. On the construction of Sections 41 to 48 of the Succession Act, the Division Bench held that such “wide proposition receives no support from any of the provisions of Succession Act” and observed as below.

          Section 41 lays down that where an intestate has left no lineal descendants, the rules for the distribution of his property shall be those contained in Sections 42 to 48. Section 42 lays down that if the intestate’s father is living, he shall succeed to the property, Section 43 lays down that if the intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of the intestate living and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares. Section 48 lays down that where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

          None of these provisions contain any limitation based on religion. If it was the intention of the Parliament when enacting the Indian Succession Act, to exclude from succession persons of non-Christian denomination or religion, that important circumstance and fact would have found a place in Succession Act itself. On the other hand, a careful reading of the various provisions of Succession Act shows that succession or a right to succeed to the property is dependent on relationship and consanguinity.

(emphasis supplied)

          In Thevan K (supra), Kerala High Court held that Indian Succession Act does not disentitle a non-Christian to inhere the property of Christian if former is a person kindred to the deceased. It was also observed that the religion of the claimant is not the crucial fact but it is the religion of the person dying intestate whose relations are to be reckoned for the purpose of succession.  In Mary Dowling (supra), a question arose whether a sister through a different mother is entitled to succeed the estate of her stepbrother. Referring to General Manager, Gwalior Sugar Co. v Srilal[5] and Arokyathammal v Mookayee alias Arokyathammal[6], S.N.Variava,J (as His Lordship then was) held as under.

          Part IV of the Succession Act lays down that for purposes of succession there must be a relationship by blood. Before a person can claim to be an heir there must be some relationship through a common ancestor or from the same stock. Section 27 makes no difference to this rule. Section 27 also recognises the fact that there must be a relationship through a common ancestor or through a common stock. There can be no doubt that Section 27 would also govern Part V of the said Act. … To that extent, I do not accept the submission of Mr.Khambatta that Section 27 canot apply to cases under Section 37. However, what Mr.Kini’s submissions fails to realise is that under Section 27(b), the relationship must be a “relationship with the deceased”. Therefore, when Section 27(b) talks of full blood or half blood, it refers to relationship by full blood or half blood with the deceased.

(emphasis supplied)

          In Ajit Datt (supra), a Division Bench of Allahabad High Court considered and held that, “an adopted son of Christian of Hindu origin comes within the purview of ‘lineal descendant’ or ‘lineal consanguinity’ and is entitled to inherit under Section 37 of the Indian Succession Act. In his concurring opinion, S.R.Singh, J held that, “adoption by a Christian couple of Hindu origin is neither opposed to any public policy nor interdicted by any statutory law or principle and philosophy of Christianity.”  The decision is not much of assistance.  Other three decisions referred to above, took the view that unless a person is related to the intestate by blood, such person cannot be treated as lineal descendant or lineal consanguinity. Indeed, Bombay High Court has taken a view that the relationship must be relationship with the deceased by blood, and that there must be relationship through a common ancestor or through a common stock. Therefore, a maternal aunt who is either younger or elder sister of the mother or mother’s cousin cannot be treated as being in relationship through a common ancestor or a common stock.  In the case of paternal aunt, there being a relationship through common ancestor or common stock, the things would be different. As we presently discuss, this is made clear by the special rules of succession contain in Section 48, which deals with the intestate succession when the person has not left any lineal descendant or parents or siblings.

          Section 48 contains – as noticed supra; four rules of succession, which are incorporated in a statute by way of illustrations. Rule 1 is a case, which speaks of the intestate succession by grandfather and grandmother being in second degree. They would be entitled to the property in equal shares exclusive of any uncle or aunt of the intestate, uncles and aunts being only in a third degree. This rule of succession is again subject to the condition contained in Illustration ‘A’ to the effect that, “no other relative standing in the same or a nearer degree of kindred to him”. It is also subject to the main provision, which stipulates that, “property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him. This only means that in addition to grandfather and grandmother, if the deceased has left behind any relative in nearer degree kindred to him, the things would be different and the rule will not apply. Who will succeed to the property of the intestate would depend on the various rules contained in Sections 32 to 47.  Rule 2 enables great grandfather or great grandmother and uncles and aunts to succeed to his property. This is again where there are no other relative standing in the same or nearer degree of kindred to him. Rule 3 contemplates a situation where the person left great grandfather and an uncle and a nephew in which case all of them take equal shares. This is again subject to the same rule as in Rules 1 and 2. If there is any relative standing nearer degree, the rule will not apply. Rule 4 i.e., Illustration IV contains rule of succession when the children of brother and sister survive the deceased. It is interesting to note that though the four rules in Section 48 visualises a situation where the deceased is survived by grandfather, grandmother, great grandfather. Great grandmother includes aunts, nephews and children of brothers and sisters, nowhere contemplates a rule as to succession by the sister of predeceased mother. Therefore, Section 48 or other rules in Chapter II as held by Bombay High Court in Mary Dowling (supra) are subject to the Rules in Part IV. So reading all the provisions together, it becomes clear that unless any of the relative is related through common ancestor or through common stock and also related by blood, no person can claim to be nearer degree of kindred of deceased. The maternal aunt thus is not one of the heirs contemplated under Section 27 or 48 of the Succession Act.

          Counsel for appellant does not dispute that illustration (i), (iii) and (iv), have no application to the facts of the case. According to him, as there is no great grandfather or great grandmother, uncles and aunts take equal share and as Section 27 of Succession Act does not distinguish the persons related through mother or father, the maternal aunt is also entitled equally along with uncles of Jeevan Rao and his cousins.  We are not able to accept the submission on a true construction of Sections 24 to 27, 32 and 48 of Succession Act.  Uncles and aunts referred to in Rule 2 under Section 48 [illustration (ii)] means and refers to uncles and aunts related through marriage of the deceased and certainly excludes the maternal aunt. Secondly, the uncles and aunts in Rule 2 under Section 48 of Succession Act refers to those in lineal consanguinity being descendants in a direct line or in collateral consanguinity being descendants from the same stock of ancestors.  The paternal uncles and first cousins fall in these two categories but a maternal aunt having no descendancy from direct line or common stock can never be treated as the relative governed by Section 48(ii) of Succession Act.    There is yet another reason for this conclusion.  A careful reading of illustrations (i) to (iii) would show that all the rules would be attracted and are applied only where there is no other relative standing in a nearer degree of kindred to the deceased.  This only means that if there are relatives who are in nearer degree, those relatives in a distant degree are not entitled to succeed.  As between paternal uncles and first cousins who are in the nearer degree, a maternal aunt is certainly not entitled to succession even if it is assumed for the sake of argument that illustration (ii) of Section 48 of Succession Act is attracted to the case.

          In this connection, we may conveniently refer to the position in Administration of Estates Act 1925, as applicable to intestate succession in English Law, which deals with intestate succession[7].  Part IV thereof provides for the manner in which the estate is to be distributed and provides for six possibilities.  These are somewhat similar to the possibilities or situations, which may arise in matters of intestate succession in India.  These are as follows.

“(i) The deceased is not survived by spouse but by children, grandchildren:

If the deceased is survived by children and not a wife, entire estate to the exclusion of other relatives will go to the children (lineal descendants).

(ii) The deceased is survived by both, spouse and children: If the deceased is survived by legally married wife and children, they take the property between them to the exclusion of any other relative.

(iii) The deceased is not survived by children but by wife, by a parent, by a brother or sister of the whole-blood or by children of brother or sister of the whole-blood.  The wife is entitled to personally belongings of the deceased absolutely in addition to statutory legacy to a sum not exceeding 200,000 Pounds and interest thereon.  In the other properties – both movable and immovable; the wife would be entitled to one–half of the balance absolutely.  If parents survive, they take the balance absolutely and in their absence, brothers and sisters of whole-blood would take the share, which their parents would have taken.

(iv) The deceased is survived by spouse but not by children or by parent or by brother or sister of the whole-blood or by children of brother or sister.  In this scenario, the surviving spouse takes the entire residuary estate absolutely regardless of its size.

(v) If the deceased is survived neither by spouse nor by issue but is survived by a specified relative, grandparents or some one who descended from grandparents or specified relatives.  The distant relatives such as second cousin are not specified relatives.  The residuary estate of the intestate is held in trust for the specified relatives of the intestate in the following order.

(a)    Parents: Surviving parents take equal shares absolutely and if one parent survives, such parent takes absolutely.

(b)    Brothers and sisters of the whole-blood.

(c)     Brothers and sisters of the half-blood.

(d)    Grandparents: Surviving parents take in equal shares absolutely.

(e)     Uncles and Aunts of the whole-blood: An uncle or aunt of the whole-blood must be a brother or sister of the whole-blood of the parent of the intestate i.e., an uncle or aunt related by birth and not by marriage.

(f)      Uncles and aunts of half-blood: Such an uncle or aunt must be a brother or sister of half-blood of a parent of the intestate.

Any of the above, who takes vested interest under particular paragraph excludes any one filing under a later paragraph.  For example, if grandparents are surviving, they take the property absolutely to the exclusion of uncles and aunts of the whole-blood.  If uncles and aunts of whole-blood are surviving, they take the property to the exclusion of uncles and aunts of the half-blood, which are related by marriage.

(vi)                 The deceased leaves no surviving spouse and no issue or other relative of the intestate, who attains a vested interest, as described above.  In this situation, the State takes the entire estate as bona vacantia.”

          Thus even in England, uncles and aunts related by marriage are alone considered as related to the persons dying intestate and maternal aunts are excluded from succession.  Therefore, we do not find any merit in the appeal.  We accordingly dismiss the same with costs.

         

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(V.V.S.RAO, J)

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(B.N.RAO NALLA, J)

19.2.2010

pln

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[1] AIR 1964 Assam 58

[2] AIR 1990 NOC 47 (Kerala)

[3] AIR 1991 Bom 389

[4] AIR 2001 All 109

[5] AIR 1958 MP 133

[6] AIR 1959 Madras 180

[7] ‘English Private Law’ edited by Prof. Peter Birks, OUP 2000 – pp.512–519.