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.