1 CRA NO.28/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.28/2011 1) Bismillah Begum w/o Sheikh Sharif Hussain and Ors. - PETITIONERS (orig.Plaintiffs Nos. 1 to 4) VERSUS 1) Naseem Begum w/o Shaikh Sharif Hussain and Ors. - RESPONDENTS ***** Mr.PV Mandlik, Sr.Counsel h/for Mr. Amol S.Gandhi, Advocate for Petitioners; Mr.SP Tiwari, Adv. For Resp.Nos.1, 4 to 11; ----- CORAM : K.U.CHANDIWAL, J. DATE : 28th NOVEMBER, 2011. COURT'S ORDER: 1) Heard learned Counsel for the parties extensively. 2) The revision applicant feels aggrieved by rejection of her application, seeking Succession Certificate, moved vide Misc. Civil Application No.145/1993 before the 3rd Joint Civil Judge, Senior Division, Jalgaon by order dated 14th October, 2005. She carried the matter in 2 CRA NO.28/2011 Regular Civil Appeal No.221/2005, however, by order dated 24th March, 2009, the learned District Judge-1, Jalgaon, did not yield to her request and hence the present revision. 3) The facts, material for the present controversy are : Deceased Sharif Hussian had married the revision applicant – Bismillah Begum and out of the marital tie, she had given birth to three children (petitioner Nos. 2, 3 and 4). However, said Sharif Hussain allegedly divorced the revision applicant and married one Naseem Begum, who out of such wedlock with Sharif Hussain, gave birth to few of the respondents named in the revision petition. 4) Mr.Mandlik, learned Sr.Counsel for the petitioners, submits, reliance placed by both the courts to alleged Talaqnama and consent terms recorded in maintenance proceedings, is divorced from the record and reality. Both the Courts did not consider that the Talaqnama is not legally established, no evidence in support thereof being adduced, blanketly it should not have been believed. The compromise pursis in the proceedings under Section 125 Cr.P.C. was in Marathi and the revision applicant could not follow and understand the text thereof and consequently, it has been wrongly used and 3 CRA NO.28/2011 accelerated by both the courts. 5) Learned Sr.Counsel further submits, the rights flowing either in the revision petitioners or her children are squeezed by refusal of succession certificate, as she sought, by both the courts. 6) Learned Counsel for the respondents submits that the compromise pursis was tendered by none else than the revision petitioner as she desired to place reliance thereon. Now, she cannot be permitted to wriggle out from the same solemn assurance. 7) While traversing the rival contentions, a prominent aspect to be considered is, the scope of the revision application under Section 115 of CPC. The revision petitioner is mandatorily required to illustrate that there was total non- application of mind and perversity is reflected in the orders impugned. 8) The proceedings under Indian Succession Act, 1925 and particularly for seeking succession certificate in terms of Section 372 thereof are summary in its nature. There could not be a roving inquiry as to subsisting rights of the parties. Indeed, evidence has to be by way of 4 CRA NO.28/2011 applications documents and within the terms and bracket illustrated under Section 372 ofthe said Act. 9) Talaqnama though was disputed by the revision petitioner, was produced and confronted to the witnesses. Witnesses did not dispute existence of the same. Acceleration or acting upon said Talaq is further cemented. If one peruses service record left behind by the deceased, as in the service record, at all the places, he has referred Naseem Begum, the person entitled to receive his pensionary benefits, as widow. He consciously and knowingly excluded the revision petitioner Bismillah Begum to be successor behind him. These aspects were coherently considered by both the courts. 10) The learned Sr. Counsel placed reliance to the judgment of the this Court in the matter of Dagdu Chotu Pathan Vs. Rahimbi Dagadu Pathan and Ors. - 2002(3) Mh.L.J. 602. In the said judgment, issue was roving to rights of a woman under Section 125 Cr.P.C. wherein the husband came with a case of divorce to the wife. It was observed, mere placing of Talaqnama without examining the witnesses attesting, that too, from the same community, such assertion of the husband cannot be activated to believe that there 5 CRA NO.28/2011 was indeed Talaqnama and consequently, non- entitlement of the wife to receive the maintenance. It was observed, it was not factum of Talaq but conditions preceding to the stage giving Talaq are also required to be proved. This Court did not approve stand of the husband in the context of the nature of proceedings under Section 125 of Cr.PC and observed that mere uttering the words “talaq, talaq, talaq’ three times, it will not amount to a valid divorce and consequently, in the said case, the Full Bench upheld the rights of the lady (wife) under section 125 Cr.PC to get maintenance. Re-visiting the facts of the present case, I find from no angle the observation of the Supreme Court could be coined by the revision petitioner. 11) Both the courts have indeed taken care as the children begotten from the wedlock with Shaikh Sharif, or the revision petitioner, are treated as successors of Sheikh Sharif and they are also issued or benedicted with the Succession Certificate. The fear or the apprehension, which the learned Sr.Counsel felt/expressed, that the petitioner may not be able to get compassionate appointment, also is a hollow fear without supporting document. Re-visiting two judgments of the courts below, there is no error or perversity to call the orders questioned for interference. 6 CRA NO.28/2011 The Civil Revision Application lacks merit, dismissed. Rule discharged. 12) The status quo granted on 4th September, 2009 is extended up to 31st January, 2012. (K.U.CHANDIWAL) JUDGE bdv/