S.B. Civil Misc. Appeal No.135/1998 Smt. Sunita & Anr. Vs. Jagliya Dated : 23.11.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. Kishan Swami, for the appellant. Mr. Prashant Chahar for the respondent. *** Challenge in this appeal is to the order dated 15th November, 1997 whereby the Additional District Judge, Hindaun City, held the respondent applicant Jagliya to be the legal representative of deceased Babu Lal and further held that he had 1/3rd share in the amount of pension. 2. The facts giving rise to this appeal succinctly run thus: That the respondent-Jagliya filed an application under Section 372 of Indian Succession Act, 1925 (herein after referred to 'the Act of 1925') against the appellants on 20th September, 1993 in the Court of Additional District Judge, Hindaun City stating therein that the respondent- Jagliya was the son of Shri Babu Lal, who expired on 13th June, 1993. The appellants namely, Smt. Sunita and Hemlata are the widow and the daughter of the deceased, respectively. The respondent Jagliya in this application implored the Court to issue succession certificate with regard to the amount described in para 4 of the said application. This application was registered as Civil Misc. Case Application No.42/1993, titled as Jagliya Vs. Sunita and ors. -2- 3. The appellants also filed a similar application under Section 372 of Act 1925 on 13th August, 1993 in the same Court for issuing succession certificate in their favour with regard to the same amount. This application was registered as Civil Misc. Application No.44/1993. The learned Additional District Judge vide order dated 5th September, 1994, ordered to consolidate both the applications and tried them together. The appellants filed their reply to the application of Jagliya stating therein that Jagliya was not the son of late Shri Babu Lal. It was also stated in the reply that Shri Babu Lal got married with one Savitri Devi in the year 1972, who left the house of her husband in the year 1975 and started living with Nanuwa as his wife. Thereafter, Babu Lal filed a divorce petition against her, which was allowed on 5.7.1991 by the District Judge, Sawai Madhopur. The appellants also stated in the reply that out of the wedlock of Babu Lal and Savitri, no child was born and thus, the appellants prayed the Court to dismiss Jagliya's application. 4. The learned court below framed two issues on the basis of pleadings of both the parties. Both the parties led evidence to substantiate their pleadings. After conclusion of trial, the learned trial Court decided both the applications -3- and held that Jagliya was the legal representative of deceased Babu Lal and as such he was entitled to 1/3rd share in the amount of pension. Aggrieved with this order, appellants have preferred this appeal. 5. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order. 6. The learned counsel for the appellants has assailed the impugned order on the ground that the learned court below had no jurisdiction to decide the issue as to whether Jagliya was the son of the deceased or not. He further canvassed that the Court was only competent to adjudicate the dispute regarding the extent of share in the pension. Hence, the entire proceedings of the court below were without jurisdiction and deserve to be quashed. 7. E converso, the learned counsel for the respondent defended the impugned order and stated the same to be just and proper. He further canvassed that since both the parties had filed separate applications for issuing succession certificates in their favour, the learned court below consolidated both of them and adjudicated with one common order. Learned counsel took me through the evidence of PW/4 Bhagwan Singh and contended that he deposed before the -4- Court that Jagliya was born out of the wedlock of deceased Babu Lal and Sabo who was the first wife of Babu Lal. Bhagwan Singh is the father of the deceased Babu Lal and there is no reason to distrust his testimony. 8. Learned counsel further contended that the impugned order is apt and just, which warrants no intervention and the appeal deserves to be dismissed. 9. Having reflected over the submissions made at the bar and carefully scanned relevant material on record, it is pertinent to point out that it is open to any person to apply for the certificate, though, ordinarily speaking, it is the heir of the deceased that is expected to make the application. Even an assignee of a debt from the heir of the deceased creditor may be entitled to apply for a certificate. 10. Adverting to the facts of the instant case, it is noticed that two similar applications were filed before the Additional District Judge, Hindaun City, by both the parties imploring to issue the succession certificates in their favour. So far as the appellants are concerned, it is an admitted fact that the appellant Smt. Sunita is the widow of deceased Babu lal and Kumari Hemlata is the daughter of late Shri Babu Lal. Coming to the statements of PW/4 Bhagwan Singh who is father of the -5- deceased Babu lal, it is found that he had four sons including the deceased Babu Lal. Babu Lal married three times. Firstly,he married with Vidya, second time he married with Sabo and thirdly, he married with Sunita. Out of the wedlock of Babu and Vidya, no child was born, but out of the wedlock of Babu Lal and Sabo two children were born. The first child died and the second child born was Jagliya. Out of the wedlock of Babu Lal and Sunita, Hemlata was born. Thus, from the statement of PW/4 Bhagwan Singh, it is tangible that Jagliya was born out of the wedlock of Babu lal and his second wife Sabo. The learned trial Court discussed and analyzed the evidence led by both the parties at length and arrived at a right conclusion that Jagliya was the legal heir of deceased Babu Lal. PW/4 Bhagwan Singh also deposed before the Court that Jagliya was born at Hindaun and his name was got entered in the Book of Mukesh Jaga. PW/3 Mukesh is a Jaga of the family of Bhagwan Singh, who maintained the record of every one born and died in the family of PW/4 Bhagwan Singh. His register is being maintained in the ordinary course of business. Hence, there is no reason to disbelieve the entries of register being maintained by PW/3 Mukesh. The statements of both, PW/3 Mukesh and PW/4 Bhagwan Singh inspire confidence and they are found to -6- be trustworthy. So far as the statements of Sunita are concerned, she is undeniably, an interested witness as it is she who along with her daughter Hemlata filed an application to issue the succession certificate only in their favour, excluding the claim of respondent Jagliya. The impugned order is found to be perfectly just and proper, which suffers from no infirmity. Under Sub Section 3 of Section 373 of the Act of 1925, the Court can grant succession certificate to the applicant if he appears to be the person having prima facie best title thereto, and in such circumstances, there is nothing wrong in the Court deciding to grant certificate to the heirs in proportion to their shares. Having analyzed and appreciated the evidence emerging on record, the learned trial court rightly arrived at a conclusion that the respondent Jagliya was also legal representative of the deceased Babu lal and he was entitled to have 1/3rd share in the amount of pension. The argument advanced by the learned counsel for the appellant in this regard is not found to be sustainable. 11. No other argument except the above has been advanced by either of the parties. -7- 12. For the reasons afore-stated, the appeal fails and the same being bereft of any merit stands dismissed. (MAHESH BHAGWATI)J. Pcg