1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR Second Appeal No. 104 of 2006 Appellants : 1) Smt Kamal widow of Sahebrao Gawande, aged about 36 years, 2) Ku Sneha Sahebrao Gawande, aged about 6 years, Minor, through mother-natural guardian, appellant no.1 Both residents of Wadgaon, District Yavatmal versus Respondents : 1) The Executive Engineer, M.S.E.B. Division Office, Karda Road, Pusad, District Yavatmal 2) Ramdas Ramkrushna Gawande, aged about 52 years, resident of Balaji Ward, Pusad, District Yavatmal 3) Smt Surekha Sahebrao Gawande, aged about 32 years, resident of Khaparkhed, Tah. Saoner, District Nagpur 2 4) Anita Sahebrao Gawande, resident of Balaji Ward, Pusad, District Yavatmal 5) Ku Nandini Sahebrao Gawande, minor, through mother-natural guardian – appellant no.4, resident of Balaji Ward, Pusad, District Yavatmal Mr A.U. Vaishnav, Advocate for appellants Coram : A.P. Bhangale, J Dated : 16th November 2009 P.C. 1. Heard submissions on behalf of appellants. None appears for respondents, though served. 2. This second appeal is directed against common judgment and order in Regular Civil Appeal No. 47 of 2004 and Regular Civil Appeal No. 34 of 2005 whereby both the appeals were dismissed by order dated 13.12.2005 by the Additional District Judge, Pusad. 3. Briefly stated, it is the case of appellants that Sahebrao Ramkrushna Gawande expired leaving behind 3 his widow Kamal and minor daughter Sneha. Ramdas Ramkrushna Gawande, brother of Sahebrao applied for succession certificate under Section 372 of the Indian Succession Act by filing MJC No. 280 of 2000 before the Court of Joint Civil Judge, Senior Division, Pusad in respect of securities stated in the application. Kamal applied by filing MJC No. 36 of 2000 for herself and for Sneha. Objectors viz. Surekha and Anita were claiming themselves as legally wedded to late Sahebrao during his life-time. The trial Court held in favour of Ramdas Ramkrishna Gawande that he alone can claim as successor of deceased Sahebrao and issued succession certificate in favour of Ramdas while rejecting claim put up by appellants and objectors. It is further the case of appellant Kamal that she was married to late Sahebrao as per the customs prevailing in Maratha caste on 10.11.1994 and Sneha is their daughter born out of wedlock on 15.8.2008. Despite producing documentary evidence of birth certificate of Sneha; wedding card; letter from Insurance Company admitted by the respondents and oral evidence led about her marriage with Sahebrao, the trial Court refused to grant 4 succession certificate disregarding the relevant legal provisions. According to appellant no.1, as class-I heirs, the appellants were entitled under the provisions of Hindu Succession Act to get succession certificate in preference to Ramdas, a class-II legal heir. Section 16 of the Hindu Marriage Act contains presumption of the legitimacy in respect of children born of even void or voidable marriage. The child can be treated as legitimate child by statutory fiction under Section 16 of the Hindu Marriage Act, 1955. It is further the case of appellants that the amounts payable to late Sahebrao on account of his death, are required to be disbursed amongst his legal heirs in accordance with the provisions of Hindu Succession Act. According to the appellants, trail Court erred in law to issue succession certificate to brother of late Sahebrao while excluding other claimants in a mechanical manner. According to appellants, the trial Court did not notice Section 112 and Section 35 of the Evidence Act and failed to apply presumption of marriage between Kamal and Sahebrao. The birth-date certificate of Sneha was also disregarded. Resultantly, the appellants were 5 refused succession certificate by the Courts below. 4. Learned counsel for appellants in support of appeal submitted that the Apex Court in Jinia Keotin & ors v. Kumar Sitaram Manjhi and ors (2003) 1 SCC 730 held that Section held that Section 16 of the Hindu Marriage Act while engrafting a rule of fiction in ordaining the children, though illegitimate are to treated as legitimate, notwithstanding that the marriage is void or voidable so far as succession or inheritance by such children in the property of their parents. In ruling of Maruti Ram Mane v. Shrikant Maruti Mane reported in 2007 (3) AIR Bom R 366, reliance was placed upon Jinia Keotin’s case (supra). In PEK Kallani Amma v. K. Devi reported in AIR 1996 SC 1963, the Apex Court had interpreted Section 16 of the Hindu Marriage Act, 1955 and held that its object is to protect legitimacy of children born of void or voidable marriage. In SPS Balasubrmanyam v. Suruttayan @ Andali reported in AIR 1992 SC 756, presumption that man and woman living under the same roof cohabiting for number of years, lived as husband and wife, children born to them are not illegitimate. 6 5. Learned Advocate for appellant also referred to ruling in the State of Chhatisgarh v. Dhirjo Kumar Sengar reported in AIR 2009 SC 2568 wherein it is held thus - “A succession certificate can be granted in favour of any person. It may be granted to an heir or a nominee. By reason of grant of such certificate, a person in whose favour succession certificate is granted becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representatives. He does not derive any right thereunder. The succession certificate merely enabled him to collect the dues of the deceased. No status was conferred on him thereby. It did not prove any relationship between the deceased and the applicant. Even otherwise, the respondent and his father were entitled to the said dues being his heirs and legal representatives.” 6. In view of the above rulings and for the 7 aforesaid reasons, the trial Court would be required to examine the evidence after giving full opportunity to the parties to lead evidence and to arrive at the conclusion as to entitlement of each of the claimants including objectors before the Court bearing in mind the principles of law stated above. 7. The impugned judgments and orders are hereby set aside. The matters are remitted back to the trial Court for adjudication and decision afresh. The trial Court shall afford opportunity to all the parties including objectors to lead evidence, produce documents and participate in hearing in accordance with law. The trial Court shall decide applications as early as possible. Appeal stands disposed of accordingly. A.P. BHANGALE, J hsj