IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 644 (S/S) of 2005 (1) Kumari Babli, minor of 11 years, D/o Late Sri Jagdish Prashad, (2) Santosh Kumar, minor of 9 years, S/o Late Sri Jagdish Prashad, Through their mother and natural guardian Smt. Madhu Devi, W/o Late Sri jagdish Prashad, All R/o Village Jamariya, Post Sankar, Patti and Vikas Khand Salt, Tehsil Bhikyashen, District Almora. …………………..Petitioners. versus (1) Uttaranchal power Corporation through its Managing Director at Dehradun. (2) Life Insurance Corporation of India, through its Divisional manager, Divisional Office Life Insurance Corporation of India, Nainital Road, Haldwani, District Nainital. (3) Post Master, Post Office Marchola (Sankar) Patti Salt, Tehsil Maliyakhal, District Almora. (4) Smt. Shakuntala Devi W/o Late Sri Jagdish Prashad R/o Village Jamariya, Post Sankar, Patti and Vikas Khand Salt, Tehsil Bhikyashen, District Almora. (5) Executive Engineer, Electricity Distribution Division, Uttaranchal Power Corporation, Ranikhet (Almora). …………………………Respondents. Sir Yogesh Pandey, learned counsel for the Petitioners. Sri B.D. Upadhyaya, learned counsel for respondent no. 1. Sri S.S. Chaudhary, learned counsel for respondent no. 2. Hon’ble Prafulla C. Pant, J. Heard learned counsel for the petitioners and learned counsel for respondent no. 2. (2) By means of this writ petition the petitioners have sought writ in the nature of mandamus directing the respondents no. 1, 2 and 3 not to pay amount of share of petitioners from the Provident Fund, Gratuity etc. payable after the death of Jagdish Prashad, to respondent no. 4 Shakuntala Devi. (3) Brief facts of the case are that Jagdish Prashad, father of the petitioners, was employed with Uttaranchal Power Corporation as a skilled labour. He was married to respondent no.4 Shakuntala Devi, but she left him in 1985, along with the children born out of the wedlock. In 1993 Jagdish Prashad got married to Smt. Madhu Devi (mother of the petitioners), without disclosing that he was earlier married to Shakuntala Devi and had children. It is only after two years of marriage of Madhu Devi with Jagdish Prashad, she came to know that Shakuntala Devi was fist wife of Jagdish Prashad. After some time the behaviour of Jagdish Prashad became cruel to Madhu Devi and children born out of the second wedlock. In 2004, Jagdish Prashad died. It is stated in the writ petition that the amount relating to Provident Fund, Insurance, Pension, Gratuity etc. payable to Jagdish Prashad is apprehended to be paid by the employer Uttaranchal Power Corporation to Smt. Shakuntala Devi in connivance with her. Hence this writ petition. (Vide interim order dated 20th May 2005 it appears that 50% of the dues were directed to be paid to respondent no. 4). (4) A counter affidavit has been filed on behalf of the employer respondent no.1 and respondent no. 5 in which it is admitted that Jagdish Prashad was employee of the Corporation. However, it is stated that petitioners are not entitled to the payment claimed by them unless they show succession certificate issued by the competent authority in their favour. (5) Respondent no. 4 filed its separate counter affidavit in which she has claimed to be the lawful legal heir of the deceased Jagdish Prashad. It is further stated in her counter affidavit that there are three children, namely, K. Puja, Km. Shobha and Arun Kumar born out of the wedlock with the deceased. It is denied by her that she left her husband in 1985. In support of her submission, it is further stated that Puja and Arun Kumar born in the year 1990 and 1993 respectively. (6) Third counter affidavit on the record is the one filed on behalf of respondent no. 2 Life Insurance Corporation of India, in which it is stated that the answering respondent is liable to make the payment only to the nominee of the deceased employee. It is stated in the counter affidavit of respondent no. 2 that there was Insurance Policy No. 240118158 of the deceased employee and he had nominated Smt. Shakuntala Devi to receive the claim. In a supplementary counter affidavit filed on behalf of the respondent no. 2 on 19th November 2007, it is stated that an amount of Rs.1,23.078/- has been paid to Shakuntala Devi. (7) In the rejoinder affidavit filed on behalf of the petitioners the averments made in the writ petition are reiterated. (8) Admittedly, Jagdish Prashad was employee of the Uttaranchal Power Corporation and he has died in the year 2004. It is also not disputed that the said Jagdish Prashad was earlier married to Shakuntala Devi respondent no.4 and he had children from her. The question raised before this Court is that the petitioners are the children of the second wife Madhu Devi. They claim their share on the dues payable to the deceased employee. Such disputed question of fact, relating to legitimacy of children and the extent of share cannot be decided by this Court in its writ jurisdiction. In the counter affidavit of respondent no. 1 and respondent no. 5 it is rightly stated that the petitioner should produce succession certificate to claim the amount which still remains unpaid. (9) Having heard learned counsel for the parties and after perusing the affidavit, counter affidavits and rejoinder affidavit filed on behalf of the parties, in view of the above discussion this writ petition is disposed of with the observation that the petitioners may seek the remedy under Indian Succession Act, if available to him, from the competent authority to claim the unpaid amount from the respondent employer. (Prafulla C. Pant, J.) Dt. 27.02.2008 NS