1 SA365/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 365 OF 2009 Sardarbee w/o Abdul Razzak Shaikh, Aged 68 years, Occupation Household, Resident of Datta Nagar, Nilanga, Taluka Nilanga, District Latur Appellant V E R S U S Najmunnisa w/o Abdul Razzak Shaikh, Aged 65 years, Occupation Household, Resident of Osmanabad, At present CISF Quarters, Vashi (New), Mumbai Respondent Smt. A.N. Ansari, Advocate for the appellant Shri S.A.G. Qureshi, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 22nd August, 2011 ORAL JUDGMENT 1. Heard. 2. At the time of admission of this appeal, following substantial questions of law was noticed : i. Whether the suit as filed is maintainable in law when alternate efficacious remedy is provided for revocation/cancellation of the Succession Certificate under the Indian Succession Act ? ii. Whether the Civil Court has right to cancel Succession Certificate partially as prayed ? 3. The facts leading to this litigation, in short, can be stated as under : One Abdul Razzak was an employee of Panchayat Samiti, Osmanabad. In due course, he attained the superannuation and was 2 SA365/09 getting the pension. Before he retired, he had made a declaration that in case of his death, respondent should get his family pension being his wife. Abdul Razzak died in the year 2002, and soon thereafter, as per his nomination, respondent started getting pension. It is also common ground that way back in 1953, Abdul Razzak had married the appellant Sardarbee, and this couple begot as many as three daughters. In 2006, appellant Sardarbee moved an application under Section 372 of the Indian Succession Act, 1925, before the learned Civil Judge, Junior Division, Nilanga, District Latur. She even made the respondent party to such litigation. She obtained succession certificate on 15th April, 2006 showing that she, the respondent and others were the legal heirs of Abdul Razzak. On the basis of this certificate, the appellant made her claim of pension. However, she did not succeed in getting pension on the basis of the succession certificate. 2. On the other hand, the respondent filed the present suit on 4th August, 2006, for cancellation of succession certificate. Her case in the plaint was as under : Admitting that the appellant Sardarbee was Abdul Razzak’s wife, she claimed that Abdul Razzak, in 1968, divorced Sardarbee, and thereafter lawfully married her. She also stated that she too begot children out of the wedlock. The appellant opposed the suit with a story that there occurred no divorce in between herself and Abdul Razzak and that the respondent never married lawfully with Abdul Razzak. There were two questions of fact between the parties; viz, whether Abdul Razzak lawfully divorced the appellant?, and secondly, whether Abdul Razzak lawfully married the respondent? The Courts below held on facts that Abdul Razzak had lawfully divorced the appellant and had lawfully 3 SA365/09 married the respondent. When the appeal was admitted, as indicated above, the questions of fact were kept outside the scope of this appeal and the only question that is required to be decided is, whether the suit was maintainable? 3. I have narrated above the contents of the plaint and the main prayer made in it is “the succession certificate dated 15th April, 2006 issued in favour of the appellant be cancelled and be declared as null and void”. 4. In a suit of this nature, the respondent ought to have sought a declaration of her status being lawfully wedded wife of Abdul Razzak and that Abdul Razzak had divorced the appellant. She ought to have sought these reliefs, and in addition to that, as a consequential relief, she could have sought declaration that the succession certificate in question should be nullified or revoked. The learned counsel appearing for the appellant contended that in absence of such prayer and in view of express provisions of Section 383 of the Indian Succession Act, suit was not maintainable and deserved to be dismissed. Section 383 of the Indian Succession Act, reads as under : 383. Revocation of certificate.-A certificate granted under this Part may be revoked for any of the following causes, namely:-- (a) that the proceedings to obtain the certificate were defective in substance; (b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; 4 SA365/09 (d) that the certificate has become useless and inoperative through circumstances; (e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. In clause (e) mentioned above, there is a clear indication that a competent Court in a suit may finally decide as to whether the debts or securities specified in the certificate are payable or not payable to a particular person. The words used in clause (e), “suit or other proceeding with respect to effects comprising debts or securities” clearly indicate that debt or security specified in a certificate could further be subjected to a litigation which can be a suit or other proceeding. In this case, the Zilla Parishad, the employer of late Abdul Razzak was under obligation to pay family pension to his widow. In that sense, the employer was to pay family pension to the lawful widow of Abdul Razzak. 4. The parties to this litigation laid their claims of being the lawful widows of Abdul Razzak. They denied the each other’s claim and therefore the pertinent question that arose between them was, whether the appellant or the respondent was lawfully wedded wife of Abdul Razzak at the time of his death? The Courts below held that it was the respondent who was such wife of Abdul Razzak. No sooner such a finding was recorded by the Civil Court, it would directly affect the succession certificate which the appellant had received earlier. In view of this, the learned draftsman of the plaint of the respondent committed a drafting error in drafting the prayer clauses of the plaint. As indicated above, he ought to have sought declaration of status of the respondent 5 SA365/09 as well as the appellant and then as consequential relief could have claimed for revocation of succession certificate etc. But, this error on his part appears to be only technical, because the appellant who appeared as defendant in the suit, did not get prejudiced because of this error. She submitted her written statement on facts and even led evidence in support of her case. Even if the drafting of the prayer clause could have been correct, the questions between the parties would not have been changed. In view of this, I am not holding that the suit was not maintainable. 5. The answer to the second substantial question of law would also go in favour of the respondent, because, as indicated above, clause (e) of Section 383 of the Indian Succession Act clearly indicates that the suit is maintainable even for revocation of a succession certificate. The appeal should therefore fail. The Second Appeal stands dismissed. 6. In view of disposal of Second Appeal, Civil Application No. 5753 of 2009 stands disposed of. 7. Although the Second Appeal is disposed of, the Civil Application No. 7750 of 2010 is continued. The appellant is allowed to make the Manager, State Bank of Hyderabad, Branch Osmanabad as party to the application. Issue fresh notice to the respondent, returnable on 4th October, 2011. ( A.V. NIRGUDE, J. ) SRM/sa/365/09/22/8/11/ok