Dinanath Sharma Vs. Premia Devi and ors.

Dinanath Sharma vs Premia Devi and ors.

Disposition Appeal dismissed Court Jharkhand Decided Sep 29, 2003

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Citation: sooperkanoon.com/522411
Court: Jharkhand High Court
Judge: Gurusharan Sharma and; Amareshwar Sahay, JJ.
Decided On: Sep 29, 2003
Case Number: L.P.A. No. 22 of 1998 (R)
Subject: Family
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Family
Outcome / disposition: Appeal dismissed
Acts & sections: Indian Succession Act, 1925 - Sections 373

Parties & Advocates

Appellant / Petitioner

Dinanath Sharma

Advocate R. Mukhopadhyay, Adv.

Respondent

Premia Devi and ors.

Advocate None

Legal References

Acts: Indian Succession Act, 1925 - Sections 373
Reported In: [2004(1)JCR190(Jhr)]

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the objector has failed to produce any evidence regarding the exact date of death of fulmati and so it cannot be said that he had married premia devi during the life..........the objector's further case was that in the year 1959, jagnandan sharma in a declaration in connection with the coal mines provident fund had mentioned the name of one fulmati devi as his wife, who died some time in the year 1974. thereafter he never married premia devi as his second wife and her two sons and two daughters were not born from jagnandan sharma.8. it is not in dispute that fulmati devi was the first wife of jagnandan sharma, but she died issueless. the objector has failed to produce any evidence regarding the exact date of death of fulmati and so it cannot be said that he had married premia devi during the life time of his first wife.9. on the other hand, in absence of any evidence brought on record to the contrary, from the oral evidence of the aws 1, 2, 3, and 4, it was established that jagnandan sharma was married with premia devi some time in the year 1964.10. in the aforesaid circumstances, we find no reason to interfere with the order dated 10.5.1991 granting succession certificate in favour of the respondent as well as the order dated 17.12.1997, passed by the learned single judge in m.a. no. 348 of 1991 (r). there is no merit in this appeal. it is dismissed but without costs.

Full Judgment

ORDER

1. Jagnandan Sharma was employee of Angar- Pathra Colliery, under M/s. Bharat Coking Coal Limited was working as night guard. He died in harness on 11.1.1988. Premia Devi, her two sons and two daughters filed Succession Certificate Case No. 79 of 1988, under the Indian Succession Act, 1925 for grant of succession certificate in respect of his death- cum- retiral benefits.

2. It was objected to by Dinanath Sharma a nephew of the deceased. By impugned

JUDGMENT / ORDER

dated 10.5.1991 succession certificate was granted to them and the mother, Premia Devi, on behalf of her two sons and two daughters, was permitted to withdraw and realise the amounts detailed in the Schedule appended at the foot of the petition, outstanding in the name of the deceased, Jagnandan Sharma.

3. According to Premia Devi, she was married with late Jagnandan Sharma some time in the year 1964 and out of their wedlock the aforesaid two sons and two daughters were born.

4. During his service period in the year 1987, Jagnandan Sharma had nominated/mentioned Premia Devi as his wife and had also given the names of his two sons and a daughter in the prescribed from. In his family health card too the names of his wife Premia Devi and two sons Gopal and Nepal stood mentioned. In the character certificate of Gopal Sharma issued by the Head Master, Middle School, his father's name was shown as Jagnandan Sharma.

5. On the other hand, the objector claimed that late Jagnandan Sharma was married with one Fulmati Devi, who died sometime in the year 1974 and thereafter he did not marry again.

6. It was claimed that on 26.12.1981 the deceased had executed a deed of gift in favour of the two minor sons of the objector, Dinanath Sharma in respect of 2.78 acres lands in village Mirjapur, District Gaya, wherein he had admitted to be issueless.

7. The objector's further case was that in the year 1959, Jagnandan Sharma in a declaration in connection with the Coal Mines Provident Fund had mentioned the name of one Fulmati Devi as his wife, who died some time in the year 1974. Thereafter he never married Premia Devi as his second wife and her two sons and two daughters were not born from Jagnandan Sharma.

8. It is not in dispute that Fulmati Devi was the first wife of Jagnandan Sharma, but she died issueless. The objector has failed to produce any evidence regarding the exact date of death of Fulmati and so it cannot be said that he had married Premia Devi during the life time of his first wife.

9. On the other hand, in absence of any evidence brought on record to the contrary, from the oral evidence of the AWs 1, 2, 3, and 4, it was established that Jagnandan Sharma was married with Premia Devi some time in the year 1964.

10. In the aforesaid circumstances, we find no reason to interfere with the order dated 10.5.1991 granting succession certificate in favour of the respondent as well as the order dated 17.12.1997, passed by the learned Single Judge in M.A. No. 348 of 1991 (R). There is no merit in this appeal. It is dismissed but without costs.

Same Court & Year Jharkhand · 2003 Same Parties Dinanath Sharma vs Premia Devi and ors. Same Subject Family Same Judge Gurusharan Sharma and; Amareshwar Sahay, JJ. Acts & Sections Indian Succession Act, 1925 - Sections 373

Family