Suphal Marandi S/O Late Dewan Marandi Vs. Smt. Kapra Murmu W/O Late Chandra Hembram and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/519958
SubjectFamily
CourtJharkhand High Court
Decided OnSep-27-2005
Case NumberMisc. Appeal No. 238 of 2003
Judge M.Y. Eqbal, J.
Reported in2005(3)BLJR2334; [2006(1)JCR37(Jhr)]
ActsIndian Succession Act, 1925 - Sections 32 to 35; Special Marriage Act, 1872 - Sections 24
AppellantSuphal Marandi S/O Late Dewan Marandi
RespondentSmt. Kapra Murmu W/O Late Chandra Hembram and anr.
Appellant Advocate Md. S. Akhtar,; A.K. Mehta and; A.K. Mishra, Advs.
Respondent Advocate A. Lal, Adv.
DispositionAppeal allowed
Excerpt:
indian succession act, 1925, sections 32 to 35 - grant of succession certificate--deposits lying in name of deceased wife of appellant--wife having two brothers not arrayed--suit dismissed--appeal against--those brothers had died, their widows and sons made parties and they all had no objection in grant of certificate in favour of appellant--held--there being no legal impediment in granting said certificate to appellant--appeal allowed--order impugned set aside. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. m.y. eqbal, j.1. this appeal by the plaintiff-appellant is directed against the order dated 2.5.2003 passed by district judge, pakur in succession case no. 11 of 1999/2002 whereby the application filed by the appellant for grant of succession certificate has been dismissed.2. appellant filed an application under the indian succession act for the grant of succession certificate in respect of some deposits lying in the name of miru hembram, the legally married wife of the appellant who died on 25.6.1997.3. appellant's case is that miru hembram was legally married wife of the appellant who died leaving behind the appellant as her sole heir and successor. in the said succession certificate appellant impleaded two persons, namely, kapra murmu and manila marandi as opposite parties who appeared and pleaded that succession certificate with respect to the amount be granted to the appellant. learned district judge on the basis of the evidence came to the conclusion that the deceased left behind two brothers also and, therefore, in terms of section 35 of the indian succession act since the appellant knowingly concealed the fact that the deceased died leaving behind brothers and they have not been impleaded as party in the case, the application for grant of succession certificate is fit to be dismissed for non-joinder of necessary party.4. section 35 of the indian succession act confers a right to the husband to succeed to half of the property of his deceased wife, in case she dies intestate leaving no lineal descendant. but in the absence of any next-of-kin the husband would be entitled to the whole of his wife's property as her heir. section 35 reads as under :35. rights of widower.---a husband surviving his wife has the same rights in respect of her property if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.5. chapter ii of the act lays down the rules with respect to devolution of property in case of death of an intestate. sections 32 to 35 read as under :32. devolution of such property.--the property of an intestate devolves upon the wile or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this chapter.explanation.--a widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.33. where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.--where the intestate has left a widow--(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow and the remaining two thirds shall go to his lineal descendants, according to the rules hereinafter contained;(b) save as provided by section 33-a, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow and the other half shall go to those who are of kindred to him, in the order and according to the rules hereinafter contained;(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.33-a special provision where intestate has left widow and no lineal descendants.--(1) where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.(2) where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such party for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.(3) the provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees, with interest as aforesaid and such residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate's property.(4) the net value of the property shall be ascertained by deducting from the gross value thereof all debts and all funeral and administration expenses of the intestate and all other lawful liabilities and charges to which the property shall be subject. (5) this section shall not apply--(a) to the property of--(i) any indian christian,(ii) any child or grandchild of any male person who is or was at the time of his death an indian christian, or(iii) any person professing the hindu, buddhist, sikh or jaina religion the succession to whose property is, under section 24 of the special marriage act, 1872 (3 of 1872), regulated by the provisions of this act;(b) unless the deceased dies intestate in respect of all his property.34. where intestate has left no widow and where he has left no kindred.--where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the government.35. rights of widower.--a husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property if he dies intestate.6. it appears from the record that the deceased 's wife of the appellant namely miru hembram had two brothers, namely, chandra hembram and ramesh hembrarn. the wives of these two brothers, namely, smt. kapra murmu and manila marandi were made parties in the succession case and they appeared and filed affidavit stating that they have no objection in grant of succession certificate in favour of the appellant, suphal marandi.7. learned counsel appearing on behalf of the appellant contended that the two brothers of the deceased died before the succession case was filed leaving behind the two widows who are already parties in the case. admittedly, therefore, the two widows, above named, are already on record and their minor sons were representated through them. the two widows were examined in the case as opposite parties nos 1 and 2 respectively and they have stated in their evidence that they have no objection if succession certificate in respect of the estate of the deceased is granted in favour of the appellant.8. the minor sons of these two widows, after attaining majority have appeared through lawyer and filed affidavit stating, inter alia, that they have no claim over the estate of the deceased and they have no objection if succession certificate is granted in favour of the appellant.9. in the facts and circumstances of the case i am, therefore, of the opinion that there shall not be any legal impediment if succession certificate in respect of the estate of the deceased wife is granted in favour of the appellant who is, admittedly, the husband of the deceased.10. for the aforesaid reasons, this appeal is allowed and the impugned order passed by the court below is set aside. consequently it is directed that succession certificate in respect of the estate of the deceased be granted in favour of the appellant.
Judgment:

M.Y. Eqbal, J.

1. This appeal by the plaintiff-appellant is directed against the order dated 2.5.2003 passed by District Judge, Pakur in Succession Case No. 11 of 1999/2002 whereby the application filed by the appellant for grant of succession certificate has been dismissed.

2. Appellant filed an application under the Indian Succession Act for the grant of succession certificate in respect of some deposits lying in the name of Miru Hembram, the legally married wife of the appellant who died on 25.6.1997.

3. Appellant's case is that Miru Hembram was legally married wife of the appellant who died leaving behind the appellant as her sole heir and successor. In the said succession certificate appellant impleaded two persons, namely, Kapra Murmu and Manila Marandi as opposite parties who appeared and pleaded that succession certificate with respect to the amount be granted to the appellant. Learned District Judge on the basis of the evidence came to the conclusion that the deceased left behind two brothers also and, therefore, in terms of Section 35 of the Indian Succession Act since the appellant knowingly concealed the fact that the deceased died leaving behind brothers and they have not been impleaded as party in the case, the application for grant of succession certificate is fit to be dismissed for non-joinder of necessary party.

4. Section 35 of the Indian Succession Act confers a right to the husband to succeed to half of the property of his deceased wife, in case she dies intestate leaving no lineal descendant. But in the absence of any next-of-kin the husband would be entitled to the whole of his wife's property as her heir. Section 35 reads as under :

35. Rights of widower.---A husband surviving his wife has the same rights in respect of her property if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.

5. Chapter II of the Act lays down the rules with respect to devolution of property in case of death of an intestate. Sections 32 to 35 read as under :

32. Devolution of such property.--The property of an intestate devolves upon the wile or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter.

Explanation.--A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.

33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.--Where the intestate has left a widow--

(a) If he has also left any lineal descendants, one-third of his property shall belong to his widow and the remaining two thirds shall go to his lineal descendants, according to the rules hereinafter contained;

(b) save as provided by Section 33-A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow and the other half shall go to those who are of kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.

33-A Special provision where intestate has left widow and no lineal descendants.--(1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.

(2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such party for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. Per annum until payment.

(3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees, with interest as aforesaid and such residue shall be distributed in accordance with the provisions of Section 33 as if it were the whole of such intestate's property.

(4) The net value of the property shall be ascertained by deducting from the gross value thereof all debts and all funeral and administration expenses of the intestate and all other lawful liabilities and charges to which the property shall be subject.

(5) This section shall not apply--

(a) to the property of--(i) any Indian Christian,

(ii) any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or

(iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose property is, under Section 24 of the Special Marriage Act, 1872 (3 of 1872), regulated by the provisions of this Act;

(b) unless the deceased dies intestate in respect of all his property.

34. Where intestate has left no widow and where he has left no kindred.--Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.

35. Rights of widower.--A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property if he dies intestate.

6. It appears from the record that the deceased 's wife of the appellant namely Miru Hembram had two brothers, namely, Chandra Hembram and Ramesh Hembrarn. The wives of these two brothers, namely, Smt. Kapra Murmu and Manila Marandi were made parties in the succession case and they appeared and filed affidavit stating that they have no objection in grant of succession certificate in favour of the appellant, Suphal Marandi.

7. Learned Counsel appearing on behalf of the appellant contended that the two brothers of the deceased died before the succession case was filed leaving behind the two widows who are already parties in the case. Admittedly, therefore, the two widows, above named, are already on record and their minor sons were representated through them. The two widows were examined in the case as opposite parties Nos 1 and 2 respectively and they have stated in their evidence that they have no objection if succession certificate in respect of the estate of the deceased is granted in favour of the appellant.

8. The minor sons of these two widows, after attaining majority have appeared through lawyer and filed affidavit stating, inter alia, that they have no claim over the estate of the deceased and they have no objection if succession certificate is granted in favour of the appellant.

9. In the facts and circumstances of the case I am, therefore, of the opinion that there shall not be any legal impediment if succession certificate in respect of the estate of the deceased wife is granted in favour of the appellant who is, admittedly, the husband of the deceased.

10. For the aforesaid reasons, this appeal is allowed and the impugned order passed by the Court below is set aside. Consequently it is directed that succession certificate in respect of the estate of the deceased be granted in favour of the appellant.