IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.05.2010 CORAM: THE HONOURABLE Mr. JUSTICE M.VENUGOPAL C.R.P.No.572 of 2004 1.Palaniammal 2.Selvi 3.Vijaya 4.M.Prema ... Petitioners / Appellants Vs. 1.Chinnapillai 2.Ramesh ... Respondents / Respondents Prayer: Petition filed under Section 115 of Civil Procedure Code against the Judgment and Decree dated 24.7.2003 made in C.M.A.No.41 of 1998 passed by the Fast Track Court No.I, Salem confirming the fair and decretal order in S.O.P.No.11/95 dated 23.6.1997 passed by the Principal Subordinate Judge, Salem. For Petitioners : Mr.Pitty Parthasarathy For M/s.S.K.Nachimuthu For Respondents : Mr.R.Nalliappan ORDER The Revision Petitioners/Appellants/Respondents have projected this Civil Revision Petition as against the Judgment dated 24.7.2003 in C.M.A.No.41 of 1998 passed by the Learned Additional District Judge, Fast Track Court No.I, Salem. 2.The Learned Appellate Authority viz., Additional District Judge, Fast Track Court No.I, Salem, in the Judgment dated 24.7.2003 in C.M.A.No.41 of 1998, had inter alia opined that the Respondents/Petitioners had failed to prove the alleged customary divorce said to have been held between the First Respondent/First Petitioner and the deceased Manickam and resultantly, dismissed the Appeal with costs. 3.According to the Learned Counsel for the Revision Petitioners/Appellants/Respondents, the Courts below failed to see that the First Respondent/First Petitioner had clearly admitted that she had deserted the deceased Manickam and subsequently, her husband married the First Revision Petitioner/First Respondent and both of https://hcservices.ecourts.gov.in/hcservices/ them continued to live together for so many years and admittedly, the First Respondent/First Petitioner was not living with the deceased Manickam for nearly more than 25 years and even when there was no valid divorce between the First Respondent/First Petitioner and her husband, it should be presumed that the marriage between them was a dead one and hence, the S.O.P.No.11 of 1995 ought to have been dismissed. 4.It is the further contention of the Learned Counsel for the Revision Petitioners that the First Respondent/First Petitioner had not questioned the marriage between the First Revision Petitioner/First Respondent with her deceased husband Manickam for all these years and therefore, the finding of the Court below that the marriage was ab initio void one was unsustainable in the eye of law. 5.Lastly, on the side of the Revision Petitioners, a plea is projected that both the Courts committed an error in coming to the conclusion that except the oral evidence of R.W.2 and R.W.3 there was no documentary evidence to prove that there was a customary divorce between the First Respondent/First Petitioner and the deceased Manickam. 6.The Learned Counsel for the Revision Petitioners cites the decision of Hon'ble Supreme Court in S.P.S.Balasubramanyam V. Suruttayan AIR 1992 Supreme Court 756 wherein the Hon'ble Supreme Court has observed that 'a man and woman living under same roof and cohabiting for a number of years and the presumption that they lived as a husband and wife arises and the presumption is not destroyed by the circumstances and evidence proved in the case and that the children born to them not illegitimate.' 7.However, the Learned Counsel for the Respondents cites the decision of Hon'ble Supreme Court in Rameshwari Devi V. State of Bihar and others (2000) 2 Supreme Court Cases 431 at page 432 wherein it is observed that 'it was amply established on the basis of oral and documentary evidence that the deceased employee and the second spouse were living as husband and wife and the cohabitation for a long period gives rise to a strong presumption of wedlock and it was therefore not necessary for the State Government to require the second spouse to prove her marriage in court of law, insofar as entitlement to family pension was concerned.' 8.He also relies on the decision of Hon'ble Supreme Court in Ramesh Chandra Rampratapji Daga V. Rameshwari Ramesh Chandra Daga 2005 (1) CTC 66 wherein it is held that 'A Hindu Marriage can be dissolved only in accordance with the provisions of the Hindu Marriage Act, 1955 by obtaining a decree of divorce from the Court and in the absence of decree of dissolution of marriage from Court https://hcservices.ecourts.gov.in/hcservices/ earlier marriage was held to be subsisting and present marriage was a void one.' 9.It is the evidence of P.W.1 (First Respondent/First Petitioner) that the deceased Manickam was her husband and their marriage took place before 25 years and that her husband was working as Line Man at Dharmapuri Pennagaram Electricity Board Office and he expired on 12.5.91 and that she is the legally wedded wife of Manickam and that the First Revision Petitioner/First Respondent was kept by her husband and through the First Petitioner/First Respondent her husband Manickam had Petitioners 2 to 4/Respondents and after the death of her husband, she furnished Ex.X.1 certificate of Electricity Department and when the First Petitioner/First Respondent made an endeavour to receive the death benefits of her husband Manickam, at that time she objected to the same and that Ex.A.4 is the letter return to the Electricity Board dated 28.11.1994 directing her to produce the Succession Certificate from the competent Court. 10.It is the evidence of P.W.1 (First Respondent/First Petitioner) that it is incorrect to state that a customary divorce took place between her husband Manickam and herself and that she has filed proof to show that she is the wife of Manickam. 11.The evidence of P.W.2 is to the effect that deceased Manickam at the time of his death was working as Line Man in Service Roll No.815. In Ex.A.6-Service Roll for the Family Benefit Scheme dated 10.2.1997, the deceased Manickam had nominated his son, the Second Respondent/Second Petitioner on 10.10.74 and that he had not nominated the First Petitioner/First Respondent-Palaniammal for receiving the family benefits. 12.P.W.3 (Assistant Administrative Officer) in his evidence has stated that from their Office a letter dated 14.3.1995 has been sent to the First Respondent/First Petitioner viz., Ex.A.7 and a letter dated 13.12.1993 was sent to Palaniammal and a copy Ex.A.8 was sent to the First Respondent/First Petitioner. 13.R.W.1 (First Revision Petitioner/First Respondent) in her evidence has stated that deceased Manickam is her husband and that nearly 20 years had elapsed after a marriage and that her marriage with Manickam was conducted by the Village elders and the village elders informed her that the First Respondent/First Petitioner was kept aside and then only her marriage was performed and from Electricity Board she has received the money after putting a signature and that the First Respondent/First Petitioner is not the heir of Manickam and their alone entitled to receive the amounts of the deceased Manickam. 14.R.W.1 in her cross examination has stated that she received a sum of Rs.300/- from the Electricity Board Office and cremated the https://hcservices.ecourts.gov.in/hcservices/ body of the deceased Manickam for which she signed the same and only in the second wife status affixed impression and it is not correct to state that the Respondents/Petitioners and that the Civil Revision Petitioners 2 to 4/Respondents are heirs of Manickam and further till his husband Manickam's death, she lived with him. 15.R.W.2 in his evidence has stated that the First Respondent/First Petitioner was given in marriage to deceased Manickam and since that marriage was not fruitful, the Panchayat was convened. As per the decision of the Panchayatdhars, the First Respondent/First Petitioner was kept aside and thereafter, the First Petitioner/First Respondent's marriage with the deceased Manickam was performed by them and that the First Revision Petitioner and the deceased Manickam were residing at Dharmapuri and after separating First Respondent/First Petitioner by means of Panchayat, the deceased Manickam had not gone to the place of First Respondent/First Petitioner and that the First Revision Petitioner/First Respondent is the wife of the deceased Manickam. 16.R.W.2 in his cross examination has specifically stated that a Panchayat took place before 25 years and he could not tell the date and day on which the said Panchayat took place and for the conduct of Panchayat no written document was obtained and the First Respondent/First Petitioner was given the maintenance by the deceased Manickam after accepting her as a wife and it is correct to state that the First Respondent/First Petitioner lived like a wife and that the First Revision Petitioner/First Respondent was married to by the deceased Manickam as his second wife. 17.R.W.3 in his evidence has stated that he is the Village Gounder and that he resides at Thathampatti Village and that the marriage between the First Respondent/First Petitioner and Manickam took place before 25 years and after the birth of one son they got separated and later they obtained the customary divorce and subsequently, Manickam got married the First Revision Petitioner/First Respondent and as per their custom, when the marriage was dissolved between the parties, later they would not remained as husband and wife and they got a written document in regard to the dissolution of marriage and that the First Revision Petitioner/First Respondent is the legally wedded wife of deceased Manickam. 18.It is the evidence of R.W.3, in his cross examination, that for the dissolution of marriage between Manickam and the First Respondent/First Petitioner, the record was available with one Dhanapal Udayar and that he used to call Dhanapal Udayar for the purpose of caste. 19.It is to be pointed out that the Respondents/ Petitioners had projected the petition under Section 372 of the Indian Succession Act https://hcservices.ecourts.gov.in/hcservices/ praying for the issue of Succession Certificate to the First Respondent/First Petitioner empowering her to draw the pensionary benefits payable by the Electricity Board Authorities in respect of the death of her husband Manickam and also claiming 1/5th share in other benefits except family pension in favour of the Respondents/Petitioners and Minor Revision Petitioners/ Respondents 2 to 4 and also for directing the Superintending Engineer, Dharmapuri Electricity Distribution Circle, Dharmapuri to disburse the amounts to the Respondents/ Petitioners and the Civil Revision Petitioners 2 to 4 each 1/5th share out of the amounts payable by the Tamil Nadu Electricity Board and to pay the pensionary benefits to the First Respondent/First Petitioner in respect of the death of Manickam. 20.It is to be borne in mind that the procedure contemplated as per Section 373 of the Indian Succession Act is summary in nature. Therefore, the enquiry must be summary. It is essential for a Court of Law to hold some enquiry has to the right of the rival claimants to the certificate. 21.At this stage, this Court recalls the decision in Smt.Jayalakshmi and others V. Smt.Gayathri and another AIR 1998 Karnataka 169 wherein it is held as follows: "Where in the proceedings for grant of succession certificate instituted by the wife of deceased, an objection was raised by another woman also claiming to be wife of deceased, however, there was evidence on record showing that a divorce petition filed against her by her first husband was pending on the date when she claimed to have married to the deceased, her marriage with the deceased would be void ab initio under S.5 of Hindu Marriage Act, and the applicant who was legally wedded wife of deceased was entitled to grant of succession certificate." 22.One cannot ignore an important fact that the grant of Succession Certificate does not depend on the right of any claimant to the Debt. The certificate does not invest in the Grantee title to the debt or property in the debt. It only enables him/her to collect the debt and give a valid discharge to the creditor. A grant of certificate does not strike out or destroy the claims of other individuals. If there are rival claims, they are to be sorted out in appropriate proceedings in the manner known to law. In a summary enquiry, the Judge is not expected to decide whether actually the Debt belonged to the deceased or not i.e. extraneous to the enquiry that will have to be determined in the proceedings which the Grantee of a certificate commences against the Creditor for recovery, if such a dispute is raised. It may have to be decided in proceedings inter se among the respective rival claimants. The settlement of such a https://hcservices.ecourts.gov.in/hcservices/ dispute is alien to the scheme of the provisions of Part X of the Indian Succession Act. 23.This Court aptly points out the decision in Smt.Ram Pyari V. Dharam Das and others AIR 1984 Allahabad at page 147 wherein it is observed that 'the question has to the validity of void marriage being in contravention of the provisions of Section 5 (i) read with Section 11 of the Hindu Marriage Act can be gone into at the instance of a third aggrieved party even after the death of one of the spouses to the marriage. It is also further held that not only the first wife, but any one affected can bring a civil suit for declaring such marriage void.' 24.In the decision Smt.Sarbati Devi and another V. Smt.Usha Devi AIR 1984 SC 346, the Hon'ble Supreme Court has observed as follows: "A mere nomination made under Section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. Decision of Allahabad High Court Reversed. AIR 1962 All 355; AIR 1978 Delhi 276 and AIR 1982 Delhi 36, Overruled." 25.This Court also quotes the decision in Madhvi Amma Bhawani Amma and others V. Kunjikutty Pillai Meenakshi Pillai and others (2000) 6 Supreme Court Cases 301 wherein the Hon'ble Supreme Court has observed that 'a decision regarding grant of succession certificate made in proceedings under S.373 of Succession Act would not bar any party to the said proceedings to raise the same issue in a suit for partition filed in a civil court and such decision is not final between the parties and Section 387 of the Succession Act takes the decision outside the purview of explanation VIII to Section 11 of Civil Procedure Code.' 26.As far as the present case is concerned, the evidence of R.W.2 is to the effect that the First Respondent/First Petitioner is the wife of the deceased Manickam till his life time. Further, it is the categorical evidence of R.W.2 in his cross examination that the First Respondent/First Petitioner remained as a first wife of Manickam and the First Revision Petitioner/First Respondent was married by the deceased Manickam as second wife. In short, the evidence of R.W.2 is in favour of the First Respondent/First Petitioner. Even though R.W.3-Village Gounder has stated that there https://hcservices.ecourts.gov.in/hcservices/ was a dissolution of marriage between the First Respondent/First Petitioner and deceased Manickam and thereafter, the deceased Manickam got married to the First Revision Petitioner/First Respondent admittedly, no written document was produced before the Trial Court and even the record which was said to be available with one Dhanapal Udayar was not filed before the Trial Court notwithstanding his death. 27.Though R.W.3, in his cross examination, has stated that the record which was available with the said Dhanapal was demanded from him but he refused to give the same, but this Court is of the considered view that no coercive or other legal steps were taken for producing the record before the Trial Court by the concerned. In the absence of cogent, convincing and acceptable proof in regard to the dissolution of marriage in the Panchayat or the customary divorce that took place in the Panchayat when the subsisting first marriage between the First Respondent/First Petitioner and the Manickam was alive, then the First Respondent/First Petitioner and the Second Respondent/Second Petitioner (born through Manickam) and the Revision Petitioners 2 to 4/ Respondents [born out of wedlock between the First Revision Petitioner and the deceased Manickam] are entitled to the grant of Succession Certificate and in that view of the matter, this Court directs the issue of Succession Certificate to the Respondents/Petitioners in respect of family pension payable by the Tamil Nadu Electricity Board consequent to the death of Manickam and the Minor Civil Revision Petitioners 2 to 4 in respect of other benefits payable by the Tamil Nadu Electricity Board arising out of the death of Manickam and resultantly, the Civil Revision Petition fails. 28.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment dated 24.7.2003 in C.M.A.No.41 of 1998 passed by the Additional District Judge, Fast Track Court No.I, Salem is affirmed for the reasons assigned by this Court in this revision. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sgl To 1.The Additional District Judge, Fast Track Court No.I, Salem. 2.The Principal Subordinate Judge, Salem. Order in C.R.P.NPD.No.572 of 2004 GG(CO) sra 27/05/2010 https://hcservices.ecourts.gov.in/hcservices/