IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.NO.259 OF 2004 1.R.Rani 2.Minor R.Sharmila 3.Minor R.Praveen Kumar (Minors represented by their mother and guardian R.Rani) .. Appellants Vs. 1.R.Sathananthavathi 2.R.Nilavu 3.Minor Ranjani (rep. by mother and natural guardian R.Nilavu) (3rd respondent impleaded vide order dt.10.07.2008 in CMP No.3175 of 2005) .. Respondents This O.S.A. has been preferred under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of Letters Patent against the judgment and decree, dated 21.8.2003 made in O.P.No.503 of 1998. For Appellants : Mr.T.D.Vasu for Mr.S.Muthukumar For Respondents : Mr.J.Mahalingam for R2 - - - - JUDGMENT (The Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the learned Single Judge of this Court made in O.P.No.503 of 1998, whereby the petition filed by the appellants herein/petitioners for the issuance of succession certificate was dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2.The Court heard the learned counsel for the appellants and also the learned counsel for the respondents. 3.The appellants filed the petition with specific allegations that the marriage between the deceased V.Ravi and the first petitioner took place in the year 1982; that the petitioners 2 and 3 were born to the spouses and they were living together; that the said Ravi died in an accident that took place on 28.02.1997; that the first petitioner applied to the Tahsildar for getting legal heir certificate in order to approach the Court for getting succession certificate, but the same was declined, stating that the said Ravi had got three wives; that to the knowledge of the first petitioner, he did not marry anybody except the first petitioner; that till his lifetime, she continued to be the only wife and that the children, who were born to them and who were shown as petitioners 2 and 3, are also equally entitled along with the first petitioner; that the said Ravi was working as Grade II Police Constable in the police department; that family pension, gratuity and all other monetary benefits were available, to which the petitioners are entitled to and that the first petitioner has been nominated by the deceased himself and hence there arose a necessity to file a petition for succession certificate and accordingly, it has been filed. 4.The said petition was resisted to by the respondents, stating that it is true, marriage between Ravi and the first petitioner had taken place in the year 1982 and petitioners 2 and 3 were born out of the said wedlock; that the first petitioner filed O.P.No.263 of 1986 before the IV Assistant City Civil Court, Chennai under Section 13(1)(ia) of Hindu Marriage Act for dissolution of the marriage; that on enquiry, a decree of divorce was also granted and thus, the marital relationship of the first petitioner and her husband came to be severed; that thereafter, the said Ravi married the second respondent and a female child was also born, who is aged about 10 years and thus, the second respondent and the daughter born to them were actually entitled to have the benefit, which actually accrued to the estate of the deceased Ravi and under these circumstances, the petition was to be dismissed. 5.The original petition was taken up for enquiry. The first petitioner examined herself as P.W.1 and the second respondent was examined as R.W.1. The Archakar was examined as R.W.2. The documentary evidence were also adduced. After looking into the materials available, the learned Single Judge thought it fit not to grant the relief, but both the parties should approach the Court of Civil Law to get declaration in respect of their status and thereafter, they have to workout the remedy accordingly and under these circumstances, the petitioners have brought forth this appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 6.Advancing arguments in support of the appellants, the learned counsel would submit that in the instant case, the marriage between the said Ravi, since deceased and the first appellant is an admitted fact and both children, who were the appellants 2 and 3, were also born to the said couple, is also admitted by the respondents. So far as divorce proceedings was concerned, though document was filed, the learned Single Judge has pointed out that there is no evidence that the said decree of divorce was given effect to, but the learned Single Judge has found that both have been living together even after the decree of divorce and thus, it would be quite clear that the said Ravi, till his life time, was living with the appellants herein and the further circumstance in favour of the appellants was that the deceased has nominated the first petitioner as nominee to get all the benefits and that even then, all other petitioners were also added as parties to the proceedings. The other one, who is entitled to the benefits along with the petitioners, is the first respondent, the mother of the said Ravi and not the second respondent. From the evidence adduced as to the alleged marriage of Ravi with the second respondent, the Court was not ready to believe the evidence and hence it has rejected the same and there is no proof for the marriage between the said Ravi and the second respondent and under these circumstances, the court, even though believed the case of the petitioners, has not passed any order and hence the order has got to be set aside and succession certificate has got to be issued in favour of the appellants. 7.Contrary to the above contentions, it is contended by the learned counsel for the respondents that so far as the marriage between the first petitioner and the said Ravi was concerned, a decree of divorce was passed by the competent court, namely IV Assistant City Civil Court, Chennai. Ex.R.1 was the decree of divorce, a perusal of which would clearly reveal that the decree was actually granted. There is no evidence that after the decree of divorce was passed, there was any remarriage between them. Even assuming that they were living together, it cannot give or cloth the first petitioner as the status of wife. Added further the learned counsel that, in the instant case, in order to prove the marriage between the said Ravi and the second respondent, R.W.2 has been examined, but the Court has rejected his evidence without any proper reasons and that it would be quite clear that after the marital relationship of the said Ravi and the first petitioner severed, the marriage between the said Ravi and second respondent had taken place and under these circumstances, the Court should have not only dismissed the petition, but also ordered issuance of succession certificate in favour of the second wife and her child. 8.The Court has paid its anxious consideration on the submissions made and looked into the materials available. It is not in controversy that the marriage of the first petitioner and Ravi took place in the year 1982 and the petitioners 2 and 3 were also born to them. As per Ex.R.1, a decree of divorce was granted by the court of competent jurisdiction, namely IV Assistant City https://hcservices.ecourts.gov.in/hcservices/ Civil Court, Chennai, whereby the marriage between the parties was actually dissolved. Now, there is no further evidence to show that there was remarriage. But, the learned Single Judge has pointed out that they were living together even thereafter. Even assuming that there is any evidence to indicate that they were living together, as rightly pointed out by the learned counsel for the respondents, it would not give the first petitioner the status of wife of Ravi, since the marriage was already dissolved. 9.The contention of the learned counsel for the second respondent is that there was marriage between the second respondent and Ravi and the same was solemnized by R.W.2 and the evidence was also adduced before the Court. But, at this juncture, it is pertinent to point out that original nomination continues to be in the name of the first petitioner. The learned Single Judge has directed both the parties to approach the civil Court for declaration of their status. Under these circumstances, the court is of the considered opinion that the order of the learned Single Judge has got to be set aside. Now, it is brought to the notice of the Court that the daughter of the second respondent is not a party to the proceedings and hence a miscellaneous petition is filed to implead her. Under these circumstances, it would be appropriate to set aside the order of the learned Single Judge, remitting the matter back to the learned Single Judge for the purpose of adding the daughter of the second respondent as a party, giving an opportunity to the parties, making an enquiry and for passing suitable orders in accordance with law. Accordingly, the order of the learned Single Judge is set aside and the matter is remitted back to the learned Single Judge. The learned Single Judge is required to give an opportunity to the parties after adding the daughter of the second respondent as a party, make an enquiry and pass suitable orders in accordance with law. Since the matter is pending for a long time, the learned Single Judge is required to dispose of the matter as expeditiously as possible. Accordingly, this original side appeal is disposed of. No costs. vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Sub Assistant Registrar, Original Side, High Court, Madras. 1 cc to Mr.S.Muthukumar, Advocate, SR.36599 ka (co) dv/31.7. O.S.A.NO.259 OF 2004 https://hcservices.ecourts.gov.in/hcservices/