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Showing posts with label Indian succession act. Show all posts
Showing posts with label Indian succession act. Show all posts
Sunday, September 8, 2013

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.

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published in http://judis.nic.in/supremecourt/imgst.aspx?filename=30159 CASE NO.: Appeal (civil)  575 of 2008 PETITIONER: Vidyadhari ...
Sunday, December 18, 2011

“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”.

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH  AT HYDERABAD FRIDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT ...

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

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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....