1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1470 OF 2009 Smt. Kanchan W/o Narendranath } Khargkharate, Age : 38 Years, } Occ. Household, R/o : Sidharthnagar, } Taluka Purna, Dist. : Parbhani. } .... PETITIONER V E R S U S 1. Indumati D/o Nagnath Waghmare } Age : 38 Years, Occ. : Household, } R/o : Sidharthnagar,Taluka Purna, } Dist. : Parbhani. } (As per the address and name } given by Indumati). } Indumati D/o Nagnath Waghmare } Age : 38 Years, Occ. : Household, } R/o : Sidharthnagar,Taluka Purna, } Dist. : Parbhani. } 2. The General Manager } South Central Railway } Secunderabad. } (Andhra Pradesh) } 3. The Divisional Railway Manager } South Central Railway } Division Office, Nanded. } .... RESPONDENTS 2 Mrs. S.G.Chincholkar, Counsel for Petitioner. Mr. S.B.Rohile, Counsel for Respondent no. 1. Mr. M.N.Navandar, Counsel for Respondent nos. 2 & 3. [ CORAM : K.K. TATED, J. ] DATE :29th AUGUST,2009 ORAL JUDGMENT : 1. Rule. Rule made absolute forthwith. By consent of parties, matter is heard at the stage of admission. 2. Heard Mrs. S.G.Chincholkar, Counsel for Petitioner, Mr. S.D.Rohile, Counsel for Respondent no. 1 and Mr. M.N.Navandar, Counsel for Respondent nos. 2 & 3. 3. By this Writ Petition under Article 226 and 227 of the Constitution of India, petitioner/original plaintiff challenges the Order dated 20/2/2009 passed by the District Judge – 2, Nanded below Exh. 25 in Misc. Civil Appeal No. 5 of 2009 arising out of the Order dated 3/1/2009 passed below Exh. 5 in R.C.S. No. 414 of 2008 by the Civil Judge (Sr.Division), Nanded. 4. A few facts of the matter are as under : Respondent no. 1 is original defendant no. 1 and respondent nos. 2 and 3 are original defendant nos. 3 and 4 in R.C.S. 3 No. 414 of 2008. Petitioner filed R.C.S. No. 414 of 2008 in the Court of the Civil Judge (Sr.Division), Nanded for declaration that petitioner be declared as legally wedded wife of deceased Narendranath Kashinath Khargkharate and for benefits arising out of service of deceased Narendranath. In that Suit, petitioners claim following reliefs : “ (1) A decree of declared as legally wedded wife of deceased Narendranath Kashinath Khargkharate and entitled all benefits arising out of service of Narendranath ; (2) Decree of declaration that the defendant no. 1 be declared as divorced wife of deceased Narendranath Kashinath with effect from 1/7/1994. (3) A decree of perpetual injunction restraining the defendant no. 2 and 3 its/their servants, agents, any other person claiming on behalf of defendant no. 1 from releasing any amount lying with respondent nos. 2 and 3 in the name of deceased Narendranath Kashinath Khargkharate to the defendant no. 1 by any other way or other benefits arising out of it ; (4) A decree of Revocation/cancellation of Succession Certificate granted to the extent of 4 defendant no. 1 in Misc. Civil Appeal No. 17/2007, by granting decree to that effect. ” 5. In the said Suit, petitioner preferred application below Exh. 5 on 25/8/2008 for temporary injunction restraining respondent nos. 2 and 3 from releasing any amount in favour of respondent no. 1 arising out of services of deceased Narendranath. The said application for interim relief was dismissed on 3/1/2009. The trial Court held that petitioner failed to prove that the marriage of respondent no. 1 Indumati and deceased Narendranath was dissolved. The trial Court further held that petitioner failed to prove that she is legally wedded wife of deceased Naranedranath. At the time of deciding the said application below Exh. 5 dated 3/1/2009, the trial Court considered the question of res-judicata and held that in view of proceeding for succession certificate filed by petitioner, principle of res-judicata is applicable in the present suit also. 6. Being aggrieved by the said Order dated 3/1/2009 passed by trial Court below Exh. 5, petitioner preferred Misc. Civil Appeal No. 5 of 2009 in the District Court at Nanded under Order XLIII Rule 1 (r) of Code of Civil Procedure. Said Appeal was dismissed by appellate Court holding that petitioner failed to make out prima facie case. At the time of dismissing Misc. Civil Appeal No. 5 of 2009, the appellate court in paragraph 20 of the Judgment held that proceeding for grant of 5 succession certificate is summary in nature and that no rights are finally decided in the said proceeding. Therefore, principle of res-judicata is not applicable. However, said issue was kept open by the appellate court in trial. 7. It is to be noted that petitioner also filed Misc. Civil Application No. 3 of 2001 in the Court of the Civil Judge (Sr. Division), Parbhani for Succession Certificate under Section 372 of the Indian Succession Act. In the said Misc. Civil Application No. 3 of 2001, Jt. Civil Judge (Sr.Division), Parbhani by its Judgment and Order dated 23/3/2007 held that petitioner is not entitled for Succession Certificate under Section 372 of Indian Succession Act. Being aggrieved by the said Order, petitioner preferred Misc. Civil Appeal No. 21 of 2007 in the Court of District Judge, Parbhani. Said M.C.A. No. 21 of 2007 was rejected by Principal District Judge, Parbhani on 30/7/2007. Thereafter, petitioner preferred Civil Revision Application No. 193 of 2007 in this Court. On 24/3/2008, petitioner withdrawn said Revision Application with liberty to take such steps as permitted by law and thereafter petitioner filed R.C.S. No. 414 of 2008 on 25/8/2008. 8. Learned counsel appearing on behalf of petitioner states that both the Courts below erred in law rejecting petitioner’s application for injunction restraining respondent nos. 2 and 3 from releasing any amount in favour of respondent no. 1 Indumati arising out of service of 6 deceased Narendranath till the disposal of the Suit. Learned counsel further submitted that petitioner’s name was recorded as nominee in the service book of deceased Narendranath. Those facts were admitted by respondent nos. 2 and 3 in their Written Statement filed in R.C.S. No. 414 of 2008. Learned counsel appearing on behalf of petitioner mainly relied on paragraph 6 of the Written Statement filed by respondent nos. 2 & 3, which is as follows : “ (6) That, in reply of para no. 2 and 3 of the plaint, it is submitted that the contents therein are not within the knowledge of answering defendant and so denied in toto. The documents with the answering defendant reveals that the deceased Narendranath has while working with the defendant executed a document declaring the composition of his family member for availing privileges existing in the railway administration. The document reveals that following are the family members (i) Narendranath - Self 21/4/1955 (ii) Kanchan - Wife 01/07/1965 ”. 9. On the basis of these submissions, learned counsel appearing on behalf of petitioner submitted that petitioner made out 7 prima facie case for injunction restraining respondent nos. 2 and 3 from releasing any benefits in favour of respondent no. 1. On the other hand, learned counsel appearing on behalf of respondent no. 1 submitted that the competent court granted Succession Certificate in favour of respondent no. 1 and, therefore, respondent no. 1 is entitled to benefits arising out of the service of deceased Narendranath. He further submitted that though the name of petitioner is shown as nominee in deceased’s service book, petitioner is not entitled for benefit, because nomination only indicated the hand which is authorized to receive the amount on behalf of beneficiary. On the basis of these submissions, learned counsel appearing on behalf of respondent no. 1 submitted that petitioner failed to make out any prima facie case in the present Writ Petition. Not only that, under Article 226 and 227 of the Constitution of India, scope of interference in the concurrent findings is very limited. Learned counsel appearing on behalf of respondent nos. 2 and 3 states that as the Succession Certificate granted in favour of respondent no. 1, they are bound to release all the benefits of deceased to the respondent no. 1. 10. Learned counsel appearing on behalf of petitioner in support of her submission that res-judicata will not be applicable in the present case, relies on Judgment in the matter of Madhavi Amma Bhawani Amma and others V/s Kunjikutty Pillai Meenakshi Pillai and others reported in AIR 2000 SUPREME COURT 2301 . She 8 mainly relied on head note ‘ C ’, which reads as under : “ (C) Civil P.C. (5 of 1908), S. 11 – Res judicata – Decision in proceedings for grant of succession certificate – Not being final adjudication of rights of parties – Cannot operate as res judicata in subsequent proceedings ”. 11. It is clear that the Apex Court held that decision in a proceeding for grant of succession certificate would not operate as res judicata in subsequent proceedings. In the present case also, the appellate court in its Judgment in paragraph 20 has specifically held that the proceedings for grant of succession certificate is summary in nature and that no rights are finally decided in such proceedings and, therefore, res judicata is not applicable. The other point raised by the learned counsel appearing on behalf of petitioner that petitioner’s name is shown as nominee in the service book of deceased and, therefore, she is entitled for the benefits arising out of service of the deceased. She has specifically relied on the Judgment of Apex Court in the matter of Vidyadhari and others V/s Sukhrana Bai and others reported in AIR 2008 SUPREME COURT 1420 . Head note ‘ A ’ of that Judgment reads as under : “ Succession Act (39 of 1925), S. 372 – Succession Certificate – Grant of – Claimant though not regularly wedded stayed for long time as wife of 9 deceased husband – Not only made nominee by deceased but also was mother of four children of deceased – Entitled to grant of succession certificate . The Apex Court in this matter held that the claimant who stays with deceased for long time as wife, is entitled for grant of succession certificate. But, in the present case, the application filed by petitioner for succession certificate was rejected. Against that, petitioner preferred Appeal. That Appeal was also dismissed. Thereafter, petitioner preferred Civil Revision Application and that Civil Revision Application was withdrawn by the petitioner on her own for taking appropriate proceedings. Therefore, in the facts and circumstances of the present case, the authority in the matter of Vidyadhari and others V/s Sukhrana Bai and others (cited supra ) is not applicable in the present case. 12. On the other hand, learned counsel appearing on behalf of respondent no. 1 relied on following authorities in support of his contention that wedded wife and in whose favour succession certificate is issued, is entitled for all the benefits of deceased. In support of his contention, he relied on following authorities : (1) G.L. Bhatia V/s Union of India and 10 another - (1999) 5 Supreme Court cases - 237. (2) Smt. Sarbati Devi and another V/s Smt. Usha Devi - (1984) 1 Supreme Court Cases 424 (3) Smt. Violet Issaac and others V/s Union of India & others - (1991) 1 Supreme Court Cases – 725. In the matter of G.L.Bhatiya (cited supra), the Apex Court held that the widow staying separately from her husband for long time, is also entitled to pension benefits. In the matter of Sarbati Devi and others (cited supra), the Apex Court held that the nominee’s interest in the amount under a policy when assured dying intestate is subject to the claim of heirs of the assured under law of succession. In the matter of Smt. Violet Issaac and others (cited supra), the Apex Court held that the widow and minor/unmarried children of the deceased employee are entitled to family pension under Railway Family Pension Rules, 1964. 13. In the present case, though the petitioner filed application for succession certificate, same was rejected by trial court as well as appellate court and thereafter petitioner on her own, withdrawn Civil Revision Application to take appropriate steps according to law. 11 14. In any case, Suit is pending for hearing and final disposal. The Appellate Court directed trial court to decide the suit within one year from the date of Order i.e. from 20/2/2009. In the above mentioned facts and circumstances, I do not find any substance in the present Writ Petition and same is dismissed. Rule discharged. 15. Interim relief granted by this court on 13/3/2009 stands vacated. Learned counsel appearing on behalf of petitioner prayed to continue interim relief for further eight weeks . 16. Considering the facts and circumstances of the present case, request of the learned counsel appearing for petitioner to continue, interim relief dated 13/3/2009 is rejected. [ K.K. TATED ] JUDGE knp/WP1470.09