Virendra Kumar Tripathy vs Nirmala Devi And Ors

The facts, insofar as they are relevant for the disposal of the appeal, may be noticed. The case of the appellant is that his father Ram Briksh Sharma was married to Buch Kumari Devi and they had five issues which included the appellant and his brother Mahendra Narayan Sharma and three sisters, namely, Shyam Sunderi Devi, Kusum Devi and Kishori Devi. His brother Mahendra Narayan Sharma was born on 1.1.1916. There is some dispute as to the year of his death but that is not very material. According to the appellant he died in the year 1937 whereas according to the respondents he died in the year 1942. After his death his wife Brij Kishori Devi succeeded to his estate who also died on 4.9.92. An application for grant of succession certificate was filed by the appellant Virendra Kumar Tripathy claiming that he being the real brother of Mahendra Narayan Sharma, the husband of the deceased, was entitled to the grant of succession certificate to the estate of Brij Kishori Devi. This Succession case was numbered as Succession Certificate Case No. 66/93 in the Court of 11th Additional District Judge Patna. In the said Succession case the respondent Nirmala Devi objected and filed a reply. Later in the year 1995 she also filed a Succession Certificate Case No. 138 of 1995 claiming a Succession Certificate in respect of the estate of the late Brij Kishori Devi. Her case was that Ram Briksh Sharma had tow wives. His first wife was one Mostt. Ramdaso Devi from whom he had two issues, namely, the appellant and Mahendra Narayan Sharma the husband of the late Brij Kishori Devi. The second wife of Ram Briksh Sharma was Buch Kumari Devi who gave birth to a son, the appellant herein, and three daughters. She, therefore, claimed that the husband of late Brij Kishori Devi was her full brother and therefore she was entitled to the grant of succession certificate in preference to the appellant Virendra Kumar Tripathy who was only a step brother of Mahendra Narayan Sharma.

The facts which are not in dispute are that Ram Briksh Sharma died in the year 1964 while Buch Kumari Devi died in the year 1936 and Ramdaso Devi in the year 1944. Mahendra Narayan Sharma, the husband of late Brij Kishori Devi was born on 1.1.1916 while the appellant Virendra Kumar Tripathy was born in the year 1929. Nirmala Devi the respondent herein claimed to be 21 years younger to Mahendra Narayan Sharma which means that she was born in or about the year 1937.

Thus the appellant claimed to be the real brother of the husband of the deceased Brij Kishori Devi both being the sons of Ram Briksh Sharma and Buch Kumari Devi while respondent claimed to be the real sister of Mahendra Narayan Sharma both being the issues of Ram Briksh Sharma and Ramdaso Devi, the first wife of Ram Briksh Sharma.

The question, therefore which arises for consideration is whether Ram Briksh Sharma was married only once to Buch Kumar Devi or whether he married twice and his first wife, namely, Ramdaso Devi gave birth to the respondent herein and Mahendra Narayan Sharma. The parties led evidence before the trial court. Since it was pleaded by the respondent herein that Ram Briksh Sharma was married twice, the burden was upon her to prove this fat. The trial court accepted the evidence adduced by the appellant herein and issued succession certificate in his favour while rejecting the succession certificate case filed by the respondent herein. It found that the witnesses who deposed at the trial on behalf of the respondent Nirmala Devi were unreliable and it was apparent that they were not revealing the truth.

The respondent preferred Misc.Appeal Nos. 462 and 463 of 1997 before the High Court of judicature at Patna impugning the judgment and order of the 11th Additional District Judge Patna dated 18.9.97. The High Court on consideration of the evidence on record upset the findings recorded by the trial court while allowing the miscellaneous appeals and granted succession certificate in favour of the respondent herein holding that the evidence on record established the fact that Ram Briksh Sharma had married twice, his first wife being Ramdaso Devi, and that the respondent herein and Mahendra Narayan Sharma were born to said Ramdaso Devi.

The logic of the judgment of the High Court is that these letters proved that the appellant was the brother of Nirmala Devi. Since it is the admitted case of the parties that the appellant is not the real brother of Nirmala Devi he must be her step brother. Since in one of the rejoinders filed by the appellant it was stated that Ramdaso Devi was the daughter of one Deolal Pandey and Nirmala Devi was her daughter, the High Court connected these two facts and came to the conclusion that Ramdaso Devi was married to Ram Briksh Sharma. We do not subscribe to this logic because there is no evidence to show that Ramdaso Devi was ever married to Ram Briksh Sharma. We, therefore, come to the conclusion that the High Court was not justified in setting aside the findings of the trial court. These appeals must be allowed and we accordingly allow these appeals, set aside the impugned judgment and order of the High Court, and restore that of the trial court. There shall be no order as to costs.