IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1282 OF 2009 Kasturbai Dagdu Dhekne ... Appellant Versus The State of Maharashtra And Others. ... Respondents -------- Shri. K. S. Bhore, Advocate for the appellant Shri. D.R. Korde, A.G.P. for respondent -------- CORAM: R.G. Ketkar, J. DATE: 6th November, 2009 PER COURT 1. This appeal is directed against the Judgment and order dated 10th February, 2009 passed by the learned Civil Judge (Junior Division) Tuljapur below Exh.1 in M. A. No. 17 of 2008. By the impugned order, the learned trial Judge rejected the application made by the appellant under Section 372 of the Indian Succession Act, 1925 (for short “Act”). 2. The above appeal was initially heard on 13th September, 2009 when the Court ordered to issue of notice to respondents and the learned A.G.P. waived service of notice on behalf of the sole ( 2 ) respondent. The parties were put to notice that the appeal will be disposed of finally at the stage of admission. 3. I have heard Mr. Bhore, learned counsel in support of this appeal and Mr. Korde, learned A.G.P. for respondent. 4. The relevant and material facts that are necessary for disposal of the appeal are as under : One Dagdu s/o Bira Dhekne was Ex-serviceman and retired from Military on 31st August, 1983. After retirement he joined service in the Land Record Office of the respondent, from where he retired on 1st May, 1998. He was receiving pension from the Military and also from the respondent. Said Dagdu expired on 19th January, 2008. After the death of said Dagdu, present appellant, claiming to be his wife made applications on 1st February, 2008 and 21st April, 2008 to the Treasury Office, Osmanabad for releasing family pension. Her application was rejected on the ground that said Dagdu had nominated one Smt. Jaya for receiving the benefits, and consequently, she is not entitled to grant of family pension. In view of this, she made application for grant of succession certificate under Section 372 of the Act on 9th June, 2008. Public notice was duly published in daily newspaper “Dainik Sangharsh” dated 7th July, 2008 inviting objections / suggestions to the present application. However, no ( 3 ) objections were raised pursuant to the public notice. The appellant filed her affidavit reiterating the contentions raised in the application. The appellant also produced the certificate of Sarpanch, Gram Panchayat, Kati dated 1st February, 2008 certifying that the appellant is legally wedded wife of Dagdu s/o Bira Dhekne. 5. The learned trial Judge rejected the application on 10th February, 2009. In the impugned order, the learned Judge recorded that Dagdu s/o Bira Dhekne had nominated Jaya for receiving the pensionary benefits after his death. Said Jaya also expired on 4th October, 2002. However, deceased Dagdu s/o Bira Dhekne did not make subsequent declaration for nominating the present appellant for receiving pensionary benefits. The learned trial Judge further observed that the status of present appellant as wife of Dagdu s/o Bira Dhekne was not in dispute. He however came to the conclusion that the case made out by the appellant did not come within the ambit of Section 372 of the Act. 6. Shri. Bhore, learned counsel for the appellant submitted that the appellant is legally wedded wife of Dagdu. To that effect, certificate was also issued by Sarpanch of Gram Panchayat Kati on 1st February, 2008. After filing of the present application under Section 372 of the Act, public notice was issued in daily newspaper “Daily Sangharsh” dated 7th July, 2008, wherein it was set out that the ( 4 ) applicant had made application for obtaining succession certificate for the purpose of receiving family pension on account of death of Dagdu s/o Bira Dhekne and called upon objections/suggestions within the period of one month from the date of publication of the said notice. However, no objections/suggestions were received pursuant to the public notice. The appellant also filed affidavit at Exh.09 reiterating her contentions. 7. Section 372 of the Act provides for making of an application for grant of succession certificate to the District Judge setting forth the particulars set out in clauses (a) to (f) of Section 372 (1) of the Act. The application so made was containing the details as required by clauses (a) to (f) of Section 372 (1) of the Act. He further submitted that under Chapter XIV of Civil Manual, the powers of the District Judge have been delegated to the Civil Judge (Junior Division) to function as the District Court. In view of this, he submitted that the learned trial Judge committed error in rejecting the application on the ground that the application did not come within the ambit of Section 372 of the Act. 8. Shri. Korde, learned A.G.P. supported the impugned Judgment and order and submitted that the appellant will have to get her status declared from competent forum and while adjudicating application under Section 372 of the Act, the Court cannot decide ( 5 ) appellant’s status as wife of said Dagdu s/o Bira Dhekne. 9. Perusal of the impugned Judgment and order indicates that the learned trial Judge himself recorded finding that the status of the applicant as wife of Dagdu was not in dispute. Having held so, the learned Judge committed error in thereafter holding that she will have to get declare her status from competent forum. In fact, there was no dispute as regards status of the appellant as wife of Dagdu. The learned trial Judge has not discussed the evidence on record while rejecting the application. 10. In view of the aforesaid discussion, in my opinion, the appellant has made out a case for grant of Succession Certificate, and hence the following order. (i) The impugned Judgment and order dated 10th February, 2009 passed by the learned Civil Judge (Junior Division) Tuljapur below Exh. 01 in M.A.No.17 of 2008 is hereby quashed and set aside. (ii) Miscellaneous Application No. 17 of 2008 for grant of Succession Certificate under Section 372 of Indian Succession Act, 1925 is ( 6 ) allowed. The learned Civil Judge (Junior Division) Tuljapur is directed to grant Succession Certificate in favour of the appellant within 8 (eight) weeks from the production of the authenticated copy of this order. (iii) Appeal is allowed in the abovesaid terms, with no order as to costs. (iv) Shirestedar to issue duly authenticated copy of this order. (v) Office to send record and proceedings to the trial Court forthwith. ( R.G. Ketkar, J. ) 06.11.2009 SRM/*