yp' IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (/§ECOND APPEALN5. <^< (Pl / 2004 APPELLANTS ,^ 'l / 1^ RESPONDENTS M^ i4..-'.-S' // ^<^--; ^/^"?/ <-' ,:? ^'^. ^ «•' .» 1. Satyabhania @ Sohagbati, aged about 45 years, Widow Late Satyadev Dubey, ^2. Sunil Dubey, aged about 23 years, : 5'oWidow Late Safyadev Dubey, ^3. ArchanaDubey, aged about ISyears, S/S'Wtdow Late Satyadev Dubey, 4. Rakesh Dubey, aged about 16 years, (Minor) y»'WidQffi-Late Satyadev Dubey, All Resident of Ghumka, Tahsil & •^b'°~ District - Rajnandgaon (C.G.) VERSUS Smt. Kamla Devi, Deserted Wife Late Satyadev N Dubey , Santosh Kumar Dubey, S/o. Late Satayd Dubey aged about 30 years ^ | Sunian, D/o. Late Sataya Dubey aged about 33 yeais'..'::1^:'.. ' • ;; ' . ! ! , : i AllresidenrQfPigrblli,'Shiv,District—Itawa(U.ff.) 4. Sanjay|Dubey,^Si/o.Late 3atya.yev Dulii^y, .aged 20 years, Prisorier iri Central Jail, Raipur |C.Gl.f! Presently R/o. Village Ghumka, Tahsil and Distri.et -i RajnandgaonfC.G.) il ' 1 APPEALUNDER SECTION 100 OF THE CODE OF CIYIJL PROCEDURE I la^. HIGHCOURTOF CHHATTISGARH AT BILASPUR S i: 1 i Civil Revision No. 101/2004 APPUCANTS Satyabhama @ Sohagbati and others Versus RESPONDENTS Smt. Kamla Devi and others SB:- HON'BLE SHRI N.K. AGARWAL, J PRESENT:- Shri Anoop Majiimdar, Advocate, for the applicants. Shri Sameer Singh, Advocate, for the respondents No. 1 fo 3. ORAL ORDER (27-1-2011) 1. LegaUty and propriety of the order dated 10-2-2004 passed in Ciyil Appeal No. 16/2002 by the District Judge,| Rajnandgaon disniissing the applicants appeal and conErming the order passed by the Civil Judge Class I, Rajnandgaon in Succession Case No. 9/98 and 10/98 dated 16-8-2002 is under assail in the instant revision. Facts of the case in brief are as iinder:- 2. Satyadev Dubey, Head Constable died on 9-8-1997 in Government Hospital, Rajnandgaon while he was on duty.| Respondent Smt. Kamladevi @ Sohagbati is his widow and respondents No. 2 and 3 are his son and daughter. l 3. After death of Satyadev Dubey, respondents No. 1 fo 3 as weU as applicants have preferred appUcations under Section 372 oflndian Succession Act, 1925 for @-ant o| succession certifitate with regard to the araount ojf D.P.Cj Gratuity, Group Insurance, Widow fund, sun-endere|d| leave, Departmental Provident Fuhd and Family Pensicu'ij amountingto Rs. 2,78,77?7/-lying;depositwiththe office of Police Superintendenit, iRajfiandgELon. Case of the applicants -was that aftei{ divorce ;befrween late Satyadev ©ub^and the respondent No. 1, the applicant No. 1 got g 3 A.i:'';:. lii. I S ;^ raarried with late Satyadev Dubey and started living •vn\ him as his wife and applicants No. 2 to 4 are children out of their wedlock. The appUcants were nominated by late Satyadev Dubey in pension case and therefore, the applicants are entitied for grant of succession certificate for retrial dues of late Satyadev Dubey. The respondents No. 1 to 3 have also preferred application for grant of succession certificate for the same amount. Both have denied the clairas of each pther in their reply. Learned trial Court on appreciation of the evidence led, submissions made and material placed on record, dismissed the appUcants' application and allowed the application of respondents No. 1 to 3. The appeUate eourt after re-appreciating the entire evidence and documents placed held, the applicants failed to prove that the applicants No. 2 to 4 and respondent no. 4 are children legitimate or iUegitimate born out of relationship of applicant and late Satyadev Dubey; the nomination form is doubtful and dismissed the appeal. Hence this revision. Shri Anoop Majumdar, leamed counsel for the applicants; woiild subrait, fhe nomination was admitted by the trial court in. applicants' favour. However, the applicants' claim was denied on the ground that the app.licants are not famity members of late Satyadev Dubey in terms of the| provisions and are not entitled for grant of successionj certtficate. The trial court declined to grant successioi|i i certificate on the ground that marriage was not; provefl j between the applicant No. 1 and late Satyadev IDubey;! admittedly there was no divorce between the responcienjtj No. 1 and late Satyadev Dubey and theappliGant no. 1 is; I ;i legally married wife of one Yogehdra, above iindings arej not correct. He would further submit that as per Sectioti; 16 Qfthe Hindu Marriage Act, atleajsttheappliGahts N6. 2 and 3 are entitled for grarEt, oft suGeession certificate along with responaentsieven assjiiuminglfcliett they are iUegitimat|e; ehildren in terins 6f Section 5 of'the Hindu Mamlage Actj ^ AiA i' i ! i. r /^ ' '%• B &>.a;"?*S!!» ;: ll :"'!a*;-iji 'a ^ '^ i'il w jjj^ Itl" ^S 7, 8. and the finding recorded by the first appellate court is not' correct that the applicants No. 2 to 4 and respondent No. 4 are not bom out of relationship between the appUcant No. 1 and late Satyadev Dubey and thus they are not the children of late Satyadev Dubey legitimate or illegitimate. On the other hand, Shri Sameer Singh, learned counsel appearing for the respondents No. 1 to 3 would submit that as per the evidence adduced and documents produced in the case and the case put forth by the applicants, it is crystal clear that neither she was wife of late Satyadev Dubey nor applicants No. 2 to 4 and respondent No. 4 are children born out of their relationship. He would further submit that late Satyadev Dubey had already nominated the respondent No. 1 as his nominee for family pension (Ex. P-75-C). As per the evidence of Clerk of office of Supenntendent of Police (N.A. 1), there is no order sheet regarding inclusion of D-1 and D-2 in the service book and there is a difference in the signature in the nomination filled in fhe year 1975 and in the year 1980. The trial court as weU as the first appeUate court after taking into consideration the entire evidence adduced by both fhe parties haye granted succession certificate in favour of respondents no. 1 to 3 and there is no jurisdictional Ulegality committed by the court below and the instant revision deserves to be dismissed. I have heard leamed coi.msel fbr the parties and perusedi the record of the courts below and the order impiigned. I Shri. Anoop Majumdar, learned counsel for the applicants] vehemenfly argued thatas per Section 50 of the Evidencpi Act, the nomination filed by deceased Satyadev Dubey is| very relevant piece of evidence which shows that tiiei applicant No. 1 is wife and other applicants are children of fhe deGeased. Both the eourts below have ignored this aspect oftheimatter. Fpr litiis, reliance has been placed on the decision pf the Supreme.Gourt'in the case ofBcisant ^^S^S^ tl I J ^.^. -^' •1-lbiil •'! \ il .-IH Singh -v- Niranjan Singh reported in AIR 2008 SC 1512. ^^ The above judgment of Supreme Court lays down that the essential reqiurements of the section 50 are i.e. (1} there raust be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfils the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Here in the instant case, learned appellate court has doubted correctness of D-1 and D-2 which were in fact fUled for the purpose of gratuity amount. On facts, it was found the applicants are not family members. In such a state of eiffairs, if learned both the courts below have concurrently held that the respondents No. 1 to 3 are entitled for greint of succession certtficate then it cannot be said that learned courts below have committed any jurisdictional irregularity. While dealing with the scope of revision, hon'ble Supreme Court in case of The Manciging Director (MIG) Hindustan Aeronautics Ltd. Bangalore Hyderabdd and another —v-Ajit Prasad Tarway reported in AIR 1973 SC 76 has observed in para 5 of its judgment as under:- "5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order pf the flrst appellate court may be right or wrong; may be in aecQrdance with law or may not be ;;" .:-•&. ''•» /,/^'"' '\ ^,:ihi'*!y?iis» "i '•ifc 1!1 '-il-''.;'"ii^SS-w-'i.^H'; .;:.; 'VW/./ jl'^^-^^' 1 : l:i \~ .J had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code." 10. More over, the succession certtficate only gives right to collect and the applicants are always at liberty to establish their tiUe in the civil court. 11. I view of above, I do not find any scope of interference in the impugned orders in exercise of revisional jurisdiction of this Court. 12. The revision being devoid of substance is liable to be and is hereby dismissed. Sd/- N. K. Agarwal Judge