HIGM COURT OF CHHATTJSGARH AT BILASPUR Sjnsie_Bench : Hon'bie Shri Diiip Raosaheb Deshmukh, J. Applicants Civi! Revision No.26 of 2007 1. Smt. Pushpa Bai, aged about 35 years, W/o Laleshwar Naag. By Caste Katar, R/o Viijage Kartha, Tahsil Charama, Distt. Kanker 2. Smt. Prem Bai.aged ab,out 68 years. W/o Late Badriram, R/o Vjliage Kartha, Tahsil Charama, Distt. Kanker 3. Minor Revatiram, S/o Laleshwar, aged about 6 years 4. Minor Rishiram, aged about 3 years, D/o Laleshwar 5. Minor Pomima, aged about 18 months, (wrongly mentioned as 18years), D/o Laleshwar No.3 to 5 being minor through their mother Smt. Pushpa Bai, W/b Laleshwar Naag, By Caste Kalar, R./o Viliage Kartha, Tahsil Charama, Distt. Kanker Non-AppSicants versus Aasbati, W/o Late Laieshwar Naag, By Caste Ka!ar, aged about 40 years, R/o Viliage Bhaisakatta, Tahsil Charama, Disit. Kanker General Pubiic. Civij Revision under Section 115 of the Code ofCJviI Procedure readwith Section 384(3) ofthe Sndian Succession Act Present: Shri Parag Kotecha, counsel for the applicants. Shri Anand Shukla, counsel for the caveator/non-applicant No.1. ORALORDER (PasSed on this 14th day of JuSy,2008) This civii revislon arises out of an order dated 13-02-2007 passed by the District Judge, Kanker in Miscelianeous Civii Appeal -~<2-- No.6/2006. The learned District Judge has affirmed the order dated 04-2006 passed by the Civii Judge C!ass"l, Kanker in Succession Case No.7/2004 granting succession certificate in favour of the non-appiicant No.1, Aasbati, the widpw of late Laleshwar Naag. Aithough the learned District Judge held that Smt. Prem Bai, the mother ofthe deceased was not entstSed to a succession certificate it was directed that the appiicant No.2< Smt. Prem Bai, the mother of Laleshwar Naag wouid be entitied tohershare. (2) Admittediy, Laleshwar Naag appolnted as Assistant Teacher in Higher Secondary School, Viilage Parsoda, Tahsil Charama died intestate at Raipur on 28-03-2004. Non-Applicant No.1, Aasbati is his Segaily married wife. Laieshwar Naag had nominated his mqther Smt. Prem Bai, appiicant No.2 for receiving the amount ofGeneral Provident Fund and Group Snsurance Scheme. Laleshwar Naag had married applicant No.1, Pushpa Bai during the subsistence of his mamage with non-applicant No.1, Aasbati. Applicants No.3, 4 and 5 are the minor children of Laieshwar Naag through Smt. Pushpa Bai. (3) The soie ground urged by Shri Parag Kotecha, learned counsel for the applscants in this revision is that both the Courts below have commltted an iliegaijty in not granting succession certificate in favour of the minor children of late Laleshwar Naag. Retjance was piaced on Vidhyadhari and others vs. Sukhrana Bsi and others, (2008) 2 SCC 238. In the case law cited the deceased had made nomination in fayour of the second de facto wife, It was held that in view of the fact that the second wife was nominated by the deceased for coSiecting the provident fund, life cover scheme, pension, Ilfe insurance and other dues and as many as four children were borne by her through the -3>- deceased, she was, while baiancing the equities, obviously preferabie for Issuance of a succession certificate, as she had stayed with the deceased as his wife and had daimed the succession certlficate to the exclusion of the legal helrs of the deceased. 11 v^as heid that merely being the legally wedded wife of the deceased by itseif did not entitle her to a succession certificate in comparison to the second cfe facto wife, who ail through had stayed as the wife of the deceas^d and had aiso borne his four children, Piacing reliance on Rameshwsri Devi vs. State ofBihar and others, (2000) 2 SCC 431, itwas held that even ifa government servant had contracted second marriage during the subsistenceof his flrst marriage, chiidren borne out of such second marriage would stiij be legitimate though the second marriage itself would be void< It was heid that such children would be entitled to the amount of pension. In the presentcase, it is an undisputed fact that the appticant No.1, Smt. Pushpa Bal, i.e., the cte facto second wife was not nomlnated by the deceased for receiving his death benefits. in this view ofthe matter, the oniy point urged by Shri Parag Kotecha, iearned counsel for the applicants in this revision is that both the Courts be!ow committed an illegaiity in not awarding a succession certificate in favour of the iegitimate minor children of the deceased, though born out of a second marriage, which was void. No other point was canvassed before me. (4) Shri Anand Shuk!a, learned counsei for the caveator/non- applicant No.1 argued in support ofthe impugned order. (5) HaVing considered the rivai submissions, i have perused the record. in Rameshwari Devi vs.> State of Bihar andl others (supra), the Supreme Court has held that even if a government servant has »»^^ contracted a second marriage during the subsistence of his first marriage, children borne out of such second marriage wouid sti!l be legitlmate though the second marriage itself wouid be void. The Court, therefore, went on to hoid that such chsldren, but not the second wife, would be entitied to the pension. in the present case, since the deceased nominated the applicant No.2, Smt. Prem Bai, i.e^ his mother and not the de facto second wife, i.e., Smt. Pushpa Bai, the applicant No.1 for receiving the death benefits the case iaw of Vi<Shyadhan and others vs. Sukhrana Bas and others (supra) is distinguishable. However, since applicants No.3 to 5 are admittedly iegitimate children of the deceased and Smt. Prem Bai, i.e., the mother of the deceased are the CIass-1 heirs under Section 8(a) and Rule 2 of Section 10 of the Hindu Succession Act and Smt. Prem Bai is the nominee of the deceased, both the Courts below have acted illegally in refusing to grant a succession certificate in their favour. The direction given by the learned District Judge that Smt. Prem Bai was entitled only to receive her share is a!so completely vague in nature. (6) For the reasons aforesaid, this revision is allowed. it is ordered that besides the non-applicant No.1, Aasbati the appiicant No.2, Smt. Prem Bai and appilcants No.3, 4 and 5, i.e., Revatiram, Rishi Param Naag and Poomima respectively are aiso entitied to 1/5th share each in the death benefits of the deceased, i.e., the amount of Genera! Provident Fund, Group Insurance Scheme, Pensjon, D.C.R.G. and Leave Encashment. The share of minor applicants No.3, 4 and 5 shall be kept under deposit in a nationalized bank as a special fixed deposit til! they attain majority. | i DUq) Raosaheb Deshmukh Judge ^^