THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.1000 of 2006 Dated: 18TH February, 2010 Between: Botta Varalakshmi …Appellant AND Barla Lalitha Bai and others. …Respondents THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.1000 of 2006 JUDGMENT: 1. This appeal is ﬁled by the unsuccessful petitioner in S.O.P.No.656 of 1998 on the ﬁle of the District Court, Visakhapatnam, whereby, her claim to issue Succession Certiﬁcate was negatived instead direction was issued to issue Succession Certificate in favour of the first respondent. 2. The appellant, along with her paternal grand mother, Smt.Barla Ramayamma, ﬁled S.O.P.No.656 of 1998 and sought for issuance of Succession Certiﬁcate under Section 373 of the Indian Succession Act, 1925, in respect of ‘A’, ‘B’ and ‘C’ schedule properties left behind by her father, Late Viswanatham. The appellant is the daughter of the deceased Viswanatham through his ﬁrst wife Kanakamahalakshmi and the second appellant (since died) was his mother. The deceased Viswanatham married the ﬁrst respondent, Barla Lalitha Bai, after the death of his ﬁrst wife, Kanakamahalakshmi. While working as ‘welder’ in the second respondent company, Viswanatham died on 18.08.1997 intestate. Consequent upon his death, he was eligible for ‘A’ Schedule retirement beneﬁts, ﬁxed deposits as per schedule ‘B’ and some gold ornaments mentioned in schedule ‘C’ of the petition. Claiming to be the Class-I legal heirs of the deceased Viswanatham, the appellants ﬁled the O.P. for issuance of Succession Certiﬁcate. During the pendency of the petition, the second appellant - mother died on 22.08.2000. The matter was proceeded with and the said S.O.P.No.656 of 1998 was disposed of by order dated 30.04.2004 holding that the appellant is not entitled for Succession Certiﬁcate and that the ﬁrst respondent alone was entitled for the same. In coming to this conclusion, the lower Court held that the 1st respondent alone was nominated by the deceased Viswanatham as his nominee to receive the service beneﬁts as well as the ﬁxed deposits lying with the 3rd respondent – Andhra Bank. Aggrieved by the same, the present appeal is preferred by the appellant. 3. The facts that the appellant herein is the daughter of the deceased Viswanatham through his ﬁrst wife; that the deceased Viswanatham married the ﬁrst respondent after the death of his ﬁrst wife; that the deceased Viswanatham died intestate; that the ﬁrst respondent was issueless are not in dispute. In the light of the above undisputed facts, the only question that arises for consideration in this appeal is whether the appellant is entitled for her share as the legal heir of the deceased Viswanatham or the ﬁrst respondent is exclusively entitled to succeed the properties of the deceased Viswanatham. 4. The appellant, being daughter of the deceased Viswanatham, is Class-I heir as per the provisions of Section 8 of the Hindu Succession Act, 1956 (‘the Act’, for brevity). Similarly, the ﬁrst respondent and the mother of the deceased Viswanatham are also Class-I heirs. As per the provision of Section 8 of the Act, “the property of a male Hindu died intestate shall devolve according to the provisions of Chapter II, ﬁrstly upon the heirs, being the relation speciﬁed in Class-I of the Schedule, and secondly in the absence of Class-I heirs, then upon the heirs being the relation speciﬁed in Class-II of the Schedule, and thirdly thereupon, the agnates and cognates of the deceased.” 5. Learned counsel appearing for the appellant, therefore, contended that the exclusion of the appellant from succession of the properties left behind by the deceased Viswanatham is not legal and valid. Learned counsel also contended that there was no need for the Court below to go into the ﬁndings as to the existence of the properties or otherwise and the only question which the Court below ought to have decided was regarding the legal status of the appellant. Learned counsel further contended that at any rate, the ﬁrst respondent also died on 20.06.2005 and she herself being issueless, there are no other legal heirs who could succeed as Legal Representatives of the deceased Viswanatham. He ﬁled a memo dated 26.09.2006 along with the ‘Death Certiﬁcate’ dated 07.02.2006 issued by the Registrar of Births and Deaths, Municipal Corporation of Visakhapatnam, certifying that the ﬁrst respondent died and the death was registered vide registration No.2005-21-00061. In view of the subsequent developments consequent upon the death of even the ﬁrst respondent and their being no other legal heirs, learned counsel contended that the appellant alone is entitled for issuance of Succession Certificate. 6. In view of the subsequent developments i.e. the death of the ﬁrst respondent and in view of the undisputed facts as recorded by the Court below to the eﬀect that the ﬁrst respondent died issueless and the contest was conﬁned only to the appellant and the deceased second appellant and the ﬁrst respondent herein, I am of the view that I need not to into the legal aspects as to whether the nominee alone was entitled for the succession of the properties of the deceased to the exclusion of other legal heirs. Taking into consideration that the petitioner alone is the legal heir of the deceased Viswanatham as per the memo dated 26.09.2009 ﬁled in this Court vide U.S.R.No.1196 of 1996, I am of the view that the petitioner is entitled for issuance of Succession Certiﬁcate in respect of the properties of the deceased Viswanatham. 7. It may however be noted that ‘C’ schedule property does not appear to be in existence and that based on the nomination, the second respondent already released some amounts to the ﬁrst respondent and disbursed the amount by cheque bearing No.915007, dated 18.02.2003. Therefore, the appellant is entitled for succession certiﬁcate in respect of the properties of the deceased Viswanatham that are existing as on date. 8. Accordingly, the order in S.O.P.No.656 of 1998 dated 30.04.2004 on the ﬁle of the District Court, Visakhapatnam, is set aside and the Succession Certiﬁcate be issued to the appellant herein, as per law. 9. The Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. ___________________ NOUSHAD ALI, J February 18, 2010 Bvv