IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.552 of 2000 1. Chandra Lata Devi, wife of Late Bhola Poddar. 2. Kumari Priyanka Sinha @ Suman, daughter of Late Bhola Poddar. Resident of Village- Ujiarpur, P.s. Ujiarpur, Dist- Samastipur. …………………Petitioners…Appellants. Versus Sharda Singh, daughter of Brijnandan Singh, resident of Ujiarpur, P.O. and P.S. Ujiarpur, District-Samastipur. …….Applicant of Succession Case No. 9 of 1996….Respondents. With MA No.618 of 2000 Sharda Singh, wife of Late Bhola Poddar, resident of Village, P.O. and P.S. Ujiarpur, District-Samastipur. ….Plaintiff/Applicant. Versus 1. Chandralata Devi, wife of Late Bhola Poddar. 2. Kumari Priyanka Sinha alias Suman, daughter of Late Bhola Poddar, both originally resident of Village- Ujiarpur, P.S. Ujiarpur, District-Samastipur at present At Mohalla-Hajipur Chauk, P.S. and P.O. Khagaria, District-Khagaria……………Defendants/Respondents. In Miscellaneous Appeal No. 552 of 2000 For the appellants :- Mr. Parmeshwar Mehta, Advocate. For the respondent :- Mr. Birendra Mohan Singh,Advocate. Mr. Ajay Kumar Singh, Advocate. In Miscellaneous Appeal No. 618 of 2000. For the appellant :- Mr. Birendra Mohan Singh,Advocate. Mr. Ajay Kumar Singh. For the respondents :- Mr. Parmeshwar Mehta, Advocate. ----------- 14. 10. 01. 2011 Two miscellaneous appeals have been filed against common judgment and order dated 13th September, 2000, passed in Succession Case Nos. 9 of 1996 and 10 of 1996 heard and tried analogously on being amalgamated by which both the cases have been dismissed. 2. The Miscellaneous Appeal 552 of 2000 filed by the 2 Chandra Lata Devi and her daughter Kumari Priyanka Sinha @ Suman, the petitioners of Succession Case No. 10/1996 claiming herself the widow and daughter of one Bhola Poddar for grant of succession certificate whereas Succession Case No. 9 of 1996 filed by one Sharda Singh also claiming to be widow of Bhola Poddar. Sarda Singh is Opposite Party in Succession Case No. 10 of 1996 filed by Chandra Lata Devi and Kumari Priyanka Sinha. Chandra Lata Devi, is Opposite Party in Succession Case No. 9 of 1996 filed by Sarda Singh. 3. Hence appellants in Miscellaneous Appeal No. 552 of 2000 and appellant of Miscellaneous Appeal No. 618 of 2000 both claims to be the widow of deceased Bhola Poddar and seeking relief for issuance of succession certificate being successor of Bhola Poddar for his account and balance in the bank. 4. The case of Chandra Lata Devi and Kumari Priyanka Sinha in Succession Case No. 10 of 1996, that claimants themselves widow and daughter of Late Bhola Poddar alleged to be died on 09.12.1995 leaving behind them legal heir. The case of Chandra Lata Devi and Kumari Priyanka Sinha is that marriage of the appellant Chandra Lata Devi was solemnised with late Bhola Poddar in the year 1974 according to Hindu rites and appellant no. 2, Kumar Priyanka Sinha born out of the wedlock of Bhola Poddar with Chandra Lata Devi in the year 1978. Deceased Bhola Poddar was a teacher at the time of his death and the appellants are entitled to receive the amount detailed in Schedule 1 of the petition along with 3 interest. A petition has been filed under Section 372 of the Indian Succession Act with a prayer to issue succession certificate with regard to the amount mentioned in Schedule 1 of the succession petition. 5. However, one Sarda Singh, appellant of M.A. No. 618 of 2000 arising out of Succession Case No. 9 of 1996 also filed a petition for succession certificate claiming to be widow of Late Bhola Poddar with regard to property mentioned in Schedule 1 in petition. 6. However, the case of Sarda Singh in Succession Case No. 9 of 1996 that Bhola Poddar died on 09. 12. 1995 and was employed as a teacher in Rajkiya Uchch Vidyalaya, Bagbara and it has been alleged that said Bhola Poddar married with one Smt. Kamni Devi, who died in around 1971 without any issue and alleged that Bhola Poddar married with Sarda Singh. But unfortunately Sarda Singh did not bless with any child from Bhola Poddar and thus Bhola Poddar died issueless leaving behind Sarda Singh as sole heir. Hence Sarda Devi has succeeded to the property of the deceased and is coming in possession. It has further been asserted that said Bhola Poddar had one full brother, namely, Shanker Poddar, two sisters, namely, Sakuntala Devi and Jaya Devi. Earlier Sakuntala Devi died surviving by four sons. 7. Sarda Devi has filed an objection in Succession Case No. 10 of 1996. Thereafter, learned Additional District Judge order to hear both succession cases analogously and after 4 taking evidence and consideration that i.e. issues whether Sarda Devi, appellant in Succession Case No. 9 of 1996 is leaving wedded wife of Late Bhola Poddar and is entitled for succession certificate though, whether Chandra Lata Devi and Kumari Priyanka Sinha, appellant nos. 1 and 2 of Succession Case No. 10 of 1996 and leaving wedded widow and daughter respectively of Late Bhola Poddar entitled for succession certificate. Both parties adduced both oral and documentary evidence. 8. The learned Addl. District Judge framed the issue whether Sharda Devi is widow of Late Bhola Poddar or whether Chandra Lata Devi is widow of Late Bhola Poddar, since two ladies filed Succession Case for grant of succession certificate claiming to be wife of Bhola Poddar and hence the learned court below proceeded to say that strict proof of marriage is required. 9. Oral evidence adduced on behalf of the appellants of Succession Case No. 10 of 1996; P.W.1 Arun Poddar, P.W.2, Rajendra Poddar, P.W. 3 Lakhan Poddar, P.W. 4 Sital Poddar, P.W.5 Md. Daud, P.W.6 Nand Kishore Poddar, P.W.7, Rameshwar Mahto, P.W.8 Gopi Poddar, P.W. 9 Chandra Lata Devi, P.W.10 Kumari Priyanka Singh, P.W. 11 Md. Mohiuddin, P.W. Shamsad Ojha and P.W. 13 Shiv Narain Singh. Documentary evidence adduced of appellants of Succession Case No. 10 of 1996; Ext.1 Application Form, Ext. 2 Certificate issued by Mukhiya, Ext.3 Original Certificate, Ext. 4 Experience certificate, Ext. 4 Identity Card, Ext. 6 Service Book, Ext.7 Admit Car, Ext. 8 Declaration 5 Form, Ext. 9 Peerless Form and Ext. 10 Abhinandan Patra. 10. The appellant of Succession Case No. 9 of 1996, Sarda Devi has also adduced both oral and documentary evidence. Oral evidence adduced P.W.1, Bindeshwar Rai, P.W. 2 Dasrath Mahto, P.W.3 Garib Thakur, P.W.4 Ashok Sah, P.W.5 Hare Ram Chaudhary, P.W.6 Sita Ram Prasad, P.W.7 Lakshmi Sah, P.W.8 Mahesh Thakur, P.W.9 Tej Narain Kuer, PW.10 Ram Ashish Poddar, P.W.11 Tribhuwan Prasad, P.W.12 Shyam Sunder Poddar, P.W.13 Kameshwar Lal, P.W.14 Shanker Poddar, PW.15 Pawan Kumar Singh, P.W.16 Arun Kumar Mishra, P.W. 17 Shanker Jha, P.W.18 Sharda Singh and P.W Ram Awtar Mahto. Documentary evidence adduced on behalf of Sarda Devi, Ext. A Residential Certificate, Ext. B Character certificate issued in the name of Bhola Poddar, Ext. C Certificate of Family members issued by Gram Sevak, Ext. D Application for allotment of G.P.F. , Ext. E. Writing and signature of Ram Sakhi Singh on Pass Book, Ext. F L.I.C, Ext. G and G/1 L.I.C. receipts, Ext. H and H/1 Pass Book, Ext. I to I/27 Negative of photo , Ext. J to J/27 Positive of photo, Ext. K to K/3 Certificate, Ext. L to L/1 Admit Card, Ext. M Mark sheet and Ext.N Death certificate. 11. On considering both oral and documentary evidences, learned District Judge taking into consideration that two appellants in both succession cases were claiming themselves to be widow of one Bhola Poddar and they are claiming only wife of Bhola Poddar and hence observed that strict proof of marriage is 6 needed and while considering the evidence of both sides held none of them stood the test of strict marriage and rejected both the petitions. So far marriage of Sadra Devi is concerned, considered that Purohit stated that he is participant in the ceremony at Ujiarpur and not saying about marriage in his presence. However, observed that witnesses 4,5,7, 8, 10, 14, 15, 18 and 19 though state about solemnisation of marriage in Calcutta, but in cross-examination their evidence have not stood of cross examination and stated varying the statement and the witnesses in their evidence about reaching at Barat at one place for solemnisation of marriage. Since their version are different and not showing and hence disbelieve the witnesses to have attended in Barart and so observation that their evidence about solemnisation of marriage can not be relied and also disbelieve. P.W. 19 alleging himself as settler of marriage and participated in Kanyadan, but nothing of the picture shows about any Kanyadan or anything picture filed observing Kanyadan. . Further taking into consideration P.W.18, photographer of Calcutta and P.W. 16 is of Samastipur, but P.W.16 have stated to take all the photographs himself and going into the minutes in detail of the evidence hold his dissatisfaction about proof of marriage of Sarda devi with Bhola Poddar. Since Bhola Poddar and Sarda Devi were posted at the same place in school and hence possession of some document, like Pass Book is not of much consequence and no similarity. 12. While considering the evidence of the side of 7 Chandra Lata Devi, held that evidence adduced on behalf of Chandra Lata Devi also does not establish marriage is not sufficient and further disbelieve Priyanka as daughter on the ground that description of father's name of Priyanka Kumari is one of the document mentioned in Rajendra Poddar though she got corrected and English version was issued after correction. But the learned District Judge disbelieved that correction was made by the parties while there was on litigation. Further Chandra Lata Devi stated that Priyanka is her daughter, but have not uttered to say that said daughter from said Bhola Poddar. Hence, learned District Judge held that from the statement of Chandra Lata Devi, Priyanka is daughter from Bhola Podar is missing and hence disbelieve and rejected both the petitions that both petitions are unable to establish that they are wife of Bhola Poddar. 13. Learned counsel for both the appellants preferred appeals and the appeals are heard analogous. However, it is pertinent to mention that during the pendency of the appeal, a petition was filed on behalf of appellant Chandra Lata Devi under Rule XLI Rule 27 read with Section 151 of Code of Civil Procedure praying therein to allow some documents as contained Annexure -1 series to be taken into consideration as additional evidence as the same necessary for just and proper adjudication of the appeal. However, the said petition under Order XLI Rule 27 was opposed by Sarda Devi, appellant filed Miscellaneous Appeal No. 618 of 2000. 8 14. However, taking into consideration of the fact, Hon'ble High Court observed by its order dated 16. 04. 2008 that both the succession cases were dismissed by the learned Additional District Judge, due to lack of sufficient evidence and observed that some more materials should come on record by way of additional evidence and hence observed that the presence of these documents on record appears to be necessary and allowed Interlocutory Application in Miscellaneous Appeal No. 552 of 2000 for taking additional evidence under the provision of Order XLI Rule 27 of C.P.C. and ordered that lower court record be sent back to the lower court under the provisions of Order XLI Rule 28 of C.P.C. in order to enable the lower court to bring all the abovementioned documents on record in accordance with law and further ordered that after taking the additional evidence the lower court shall immediately transmit the lower court record to this Court. Hence, lower court recorded additional evidence as Ext. 11. photo copy certificate of Ration Card in the name of Chandra Lata Devi, wife of Late Bhola Poddar, Ext.12 is the khesria of the 1995. Ext. 13 is certificate of of the Principal, Arya Kanya Vidyaloaya, Ext. 14 is self attested photo copy of School living Certificate of Kumari Priyanka Sinha ,Ext. 15 certificate issued by Sarpanch to the effect that Sarda Singh married with Andur Lal Mahto in 1984,Ext. 16, Admission Register of R. Lal College, Khagaria of the year 1992 to 1994, Ext. 16A Admission Register of Arya Kanya Vidyalaya Vidyalaya, 1990, Ext. 17 Tabulation Register of Intermediate 9 Consel. These additional evidences recorded by the trial court on the direction of Hon'ble High Court vide order 16. 04. 2008 in this Miscellaneous Appeal No. 552 of 2000 and Miscellaneous Appeal No. 618 of 2000. 15. However, it may be mentioned that two appeals have been filed both separately by the two appellants. However, they have stated their fact. In Succession Petition filed by these appellants that though, Chandra Lata Devi filed Succession Case No. 10 of 1996 and Sarda Singh has filed Succession Case No. 9 of 1996. However, both petitions were heard analogously. 16. Learned counsel for the appellants, challenged the impugned order on the ground that learned Additional District Judge while going into the proceeding required to look into prima facie whether the petitioners were married but without going into the fact whether the petitioner prima facie established the marriage proceed to consider the minutes details and disbelieved evidence of both the parties holding both have not established their marriage with Late Bhola Poddar. It has further been contended that court below misdirected itself in taking into consideration the evidence of the witnesses which have adduced by oral and documentary evidence to infer that no marriage was solemnised and hence challenged the findings that lower court has proceeded in super technicalities and is asserted that marriage at Calcutta has been disbelieve in flimsy ground that witnesses have stated that some one has stated that marriage was solemnised at Calcutta and some witnesses have stated 10 that marriage was solemnised at Howrah. However, both means the same fact but in different ways. One may say that he went to Howrah and some one say went to Calcutta and it appears that expression some of them by different person in different manner and the learned court below taking into consideration the contradiction of minutes details to disbelieve the evidence of marriage which is not permissible or the interest of justice. 17. However, taking into respective submissions, question for consideration whether Sarda Devi the appellant of M.A. No. 618 of 2000 or Chandra Lata Devi and Kumari Priyanka Sinha, appellants of M.A. No. 552 of 2000 is the successor of Late Bhola Poddar. 18. The case of Chandra Lata Devi in her succession case that she was married with Bhola Poddar in the year 1974 and blessed with a daughter in the year 1978 and appellant no. 2 joined appellant no. 1 Chandra Lata Devi . Whereas Sarda Devi in her petition has stated that Bhola Poddar married with Kamini Devi his first wife in 1971 and died in 1971 without any issue and Late Bhola Poddar married with Sadra Devi, but no issue from her. Bhola Poddar died issueless leaving behind Sarda Devi. However, in Succession Case No. 9 of 1996, there is no mentioned in the petition about date of marriage of Bhola Poddar with Sarda Devi and hence both the cases, two appellants separately in their petitions claims to be married wives of deceased Bhola Poddar and hence question of consideration that who is legally wedded wife. 11 19. So far pleading is concerned, Chandra Lata Devi claims that she was married with Bhola Poddar in 1974. In the petition of Sarda Devi there is no mentioned of any date of marriage. However, during evidence adduced on behalf of Sarda Devi, witnesses deposed that the marriage of Sarda Devi was solemnised on 16. 06. 1986 at Calcutta. However, learned court below at the outset troubled in the premises considering that both are claiming to be wives of Bhola Poddar and are saying that they are wives and hence travelled to the premises of the strict proof about the marriage and told nor have been able to prove the marriage. However, the case of Chandra Lata Devi that her marriage with Bhola Poddar was solemnised in the year 1974 and Sarda Devi was admitted that marriage of Bhola Poddar was solemnised first in 1971 with Kamni and his first wife died in 1971, itself and thereafter, marriage of Bhola Poddar was solemnised with Sarda Devi, but it neither mentioned the date of marriage nor mentioned place of marriage. However, subsequently, at the stage of evidence in the year 1999, the case was developed that marriage was solemnised in 16. 06. 1986 at Calcutta and further the case developed that Barat went from Ujiarpur and hence if assuming that marriage of Bhola Poddar with Sarda Devi was solemnised in the year 1986 even then the question for consideration whether Bhola Poddar was married with Chandra Lata Devi in 1974 is ever relevant consideration. 20. However, question germane to the issue that whether Chandra Lata Devi was married with Bhola Poddar. 12 However, P.W. 1 Arun Poddar has stated about marriage of Bhola Poddar and even stood the cross-examination P.W. 2 Rajendra Poddar stated Chandra Lata Devi is his sister and she was married with Bhola Poddar at Ujjainpur by Hindu rites and the marriage solemnised after taking seven steps around the holy fire and in the case Avinandan Patra was also published and married was solemnised in the year 1974. The two witnesses P.W.1 and 2 are aged about 62 years and has stood cross-examination and there is nothing in their evidence to disbelieve his evidence. P.W. 3 Lakhan Poddar has stated that Bhola Poddar is his nephew and was married at Khagaria with the daughter of Ambika Poddar and he had been in the Barat and has stated that said daughter of Ambika Poddar married with Bhola Poddar and blessed with a daughter, namely, Priyanka. P.W. 4, Sital Poddar, however, in his evidence there is nothing in the evidence to disbelieve the witness. P.W.6 Nand Kishore Poddar, P.W.8 Gopi Poddar stated that Bhola Poddar is his cousin and he had been in the Barat of Bhola Poddar and has stated that Bhola Poddar was married with Chandra Lata Devi. P.W.9 Chandra Lata Devi has stated that PW. 10 Priyanka is her daughter and her husband died in the year 1995. It is further stated that marriage was solemnised in the year 1974. 21. However, Ext. 6 is the document of the year 1993 certified copy of Service Book and it mentioned that Chandra Lata is wife of Bhola Poddar. Ext. 7 Admit Card of Priyanka Kumari dated 17.12.1993, father's name mentioned as Bhola Poddar. Ext. 11 is 13 the Ration Card issued of the year 1993, in which Chandra Lata Devi as shown to be wife of Bhola Poddar. However, it is duplicate and date mentioned is of year 1998. Ext. 12 is Voter List showing Chandra Lata Devi, wife of Bhola Poddar. Ext. 13 is the document of 2007 i.e. for the period of litigation and again certified copy issued Bihar School Examination Board showing Priyanka is daughter of Bhola Poddar. Ext. 14 School Leaving Certificate showing Priyanka Kumar is the daughter of Bhola Poddar. Ext. G and G/1 L.I.C. premium showing Sarda Singh deceased wife of Bhola Poddar of the year 1995 and L.I.C. certificate 1989 which is Ext. F. There are some documents which are Ext. G and G/1, F. and D. showing Sarda Devi is wife of Bhola Poddar. 22. However, having regard to the facts that there are evidence of witnesses 1, 2, 3, 4 and 5 that marriage solemnised of Chandra Lata Devi with Bhola Poddar and witnesses have stated about Saptpadi and there is nothing in the evidence to disbelieve and there are some documentary evidences as name of Chandra Lata Devi finds in the service Book (Ext. 6) as wife of Bhola Poddar as far as back 1993 prior to the litigation. 23. It can well infer that Bhola Poddar was married with Chandra Lata Devi in the year 1974 and was blessed with a daughter Priyanka. However, learned court below doubted that Priyanka is daughter on the sole ground that father's name of Priyanka as Rajendra Poddar. However, the same was corrected subsequently when came in notice and certificate was issued and 14 hence evidence of witnesses that marriage of Bhola Poddar was solemnised with Chandra Lata Devi is prima facie established and marriage of Bhola Poddar with Chandra Lata Devi was established in the year 1974, then subsequent marriage of Sarda Devi with Bhola Poddar has no legal consequences to general status of wife as per Hindu law. 24. However, it appears that learned lower court misdirected itself in proceeding that strictless proof disbelieve evidences both oral and documentary on flimsy grounds find and hold that Chandra Lata Devi is wife of Bhola Poddar having married in the year 1974 entitled for succession certificate to be issued in favour of her as claims of Sarda Devi in the life time of compensation is not maintainable and hence Miscellaneous Appeal No. 552 of 2000 of Chandra Lata Devi is allowed. Hence, the District Judge is directed to grant succession certificate to Chandra Lata Devi and Kumari Priyanka Sinha. 25. However, having regard to the fact that marriage of Chandra Lata Devi with Bhola Poddar itself has been established. The marriage of Sarda Devi with Bhola Poddar in life time of Chandra Lata Devi is not legal hence Miscellaneous Appeal No. 618 of 2000 filed by Sarda Devi is hereby dismissed. m.p. ( Gopal Prasad, J.)