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. SMT. RAJ RANI

CHIEF SETTLEMENT. COMMISSIONER DELHI AND ORS .

• May 3, 1984

[D A. QESAI, AMARENDRA NA TH SEN AND R.B .MISRA JJ .]

Evidence Act-S. 35-Scope of • . fJhether .certificate of _di:ath. given by respectable persons of the place where decea.\ed once resided admisible in evidence. Held no.

Nanak Chand, father of tbe appeJJ; nt, a displiced 'person from West Pakistan and having a verified claim in tlis name for _some Jand, disappeared

ome time in December 1954.

A report about his_ disappearance was lodged by the aopellant's brother, Dewan Chand, Respondent No. 2, with t.he local. police-in Punjab.

Tbe police made an enquiry ill the matter and ultimately aave out that Nanak Chand could not be traced.

In response to a: notice isiiued o the year 19'6 in suo 1noto revij)ion in regard to.the verified claim, jn tho absrnce or Nanak Charid, Dewnn Chand appeared and alleaed t.bat Nanak Chand.bad died leaving behind three. sons il; icluding him as the only Ie:gal heirS.

Dewan Cbilnd produced a certificate to the effect that Nanak Chand had died one year and 10 months prior to 25th Octo.bCr, 1956.

The certificate \Vas issued on his request by some rfspectable persons .of the place wber~ lbe family once resided.

The Additional Settlement Commissioner, Delhi, by his order d1ted. 27th October, 1956 allowed the application for substitutiorl and directed the three sons to be brougqt on record as legal repreentative!'i of the deceased Nanak Chand although NaAak Chand bad left behind three 1!ons, three daughters including theappellant and his widow.

The appellant, in an attempt to have her name substitufedt) filed a revision application against the order of the Additional Settlement Commissioner before the Chief Settlefnent Cornmis~ sloner under. s 5.of the Diplaced Persons (Claims) St1pplementary Act,

1954 ..

By his order dated 2.Sth September, 1965, the Chief SetUemeot

.- Commissioner ccnfirrned the orde_r of the Additional Settlement Commis .. sioner dated 27th October, 1956 an~ dismissed the revision appli .. ca.tion of -the appe-llant without affording; an opportunity of being_ heard to the rppella-nt.

The High Co1, lr1 dismissed the appellanfs writ petition and Letters_ Patent Appeal against the order o~ the Chief settlement Commis!!'ioner.

The High Court observed. 1J1at the Additional Settlement Commissioner acted right11 in re1'ing upon 1he death ceftificate _ prci; luc.ed by'"bewanChand and ubstilutir.g the sons .of Nnnak Chand as heirs of the deceased of his

~, riP, rd cl'aim.

Hence this appeal.

,'\llowiog t!ie appeal, .

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HELD.: A certificate given by repectable persons of :the place . where the d>tceasrd once resided,- to say the least, is not ad.missible in

f:v.idence, Sec. ~5 of 1he evidence Act povides that an elltry in any public or other official book, register, or record, stating a fact in issue or reiCvant fd'ct, and mede by a public servant in the disCbarge of his official duty,_ or by _any 01her person in performance A of a duty, specially enjoined by the law of the country in which such book, register or record iS kept; is itself a relevant fact. [769BC] ·

In the instant case a certificate by certain respectable person of tho place whCre the family once resided doesnot satisfy the fequirements of s.35 of the evidei; icC Act.

Tberfl is no. p_roof th, at any statutory duty WM cast upon the person issiiing the certificate to keep a record of birth 3nd death .andtherefore, the certificate of death hasno evldeotiary value. It is Very easy for .a. person to obtain a deat-h certificate from 'the soca11ed respectable persons in ordfr to grab the property.· If according to Dewan Chand, Nanak Charid had died heust also indicate where did be die aD.d it is the pl_ace. of .his eath which will be _relevant and not the place of bis birth or residence.

The certificate obviously is not of -the place where :Nanak.Chand ded". The authorities have graveJy-erred in relying upon tho

cortific, ate of death which was inadmissible in evidence. [769DE) ·

To •ee whether daughters would be entitled to interest in the pro perty left by Nanak Chand will depend upon the death of Nanak Chand before .. or after the enforcement of Hindu Suctession Actand to decide as to when'Nanak Chand died it was absolutely essential that an opportunity Sbc;>uld have been .offered to the appellant in acordance with the principles

of natural justice. [769H; 770A]

CiyIL APPELLATE JURiSDictioN 1971.

Civil Appeal No. 485 of

• From the Judgmeut and Order .dated the 29th January, 1970 of the .Delhi High Court in Let ers Patent Appeal No. 8/70. ' . . .

D.D. Thakur, E.G. Agarwala and V.X. Pcnditia for the Appel 1 !ant.

Charnan Lal ltrora for the Respondent.

• The. Judgment of the Court was delivered by

M1sRA, J. The. present appeal by certificate is directed against the judgment of the High Court of Delhi dated 29th January, 1970 ' in letttrs pattnt arperlccnJirrning the judgment and order of tho Je11rped Single judge of the High Court date\! 7t!i January, 1970,

RAJ RANI v. SETTLEMENT COMMR. (M; sa, J.) 165

Nanak Chand, father of the appellant was a displttced person from West Pakistan where he had le!t agric\lltural lands i~ village Chhota Bhukh Auta(, tehsil Bahawal .Nagar, district Bahawalpur.

After the partition of the country his claim beating Index No. B/BP- 3/259 was verified in his name for 26 standard acres 12! units. Nanak Ch!\lld disappeared sometime in December, 1954 and a rport about his disappearance. was lodged. by the appellant's brother Dewan ,

• Ciiand, arrayed in this appeal as respondent No. 2, on 25th ·"'- December, t'954 with. the local police, Malhout, district Ferozepnr, Punjab.

An enquiry was made by the police in the matter and ultimately the police gave out that Nanak Chand could not be traced.

In the year 1956 a notice was issued in suo moto revision in. regard to the verified claim referred to above, .by the Additional Settlement Commissioner, Delhi. to Nannk Chand, claimant. As Nanak Chand could not and did not appear in compliance with the notice, the. eldest brother of the appellant, namely, Dewan Chand, appeared before the Additinal Settlement Commissioner, Delhi on o.ctober 25, 1956 and altegca that Nanak Chand had 'died leaving behind thre sons, namely, Dewan Chand, Prabhu Dayal and Ashok Kumar (minor) as the only legal heirs of the deceased . •

The learned Additional Settlement Commissioner by his order dated 27th October, .1956 altowed the application for. substitution and directed Dewan Chand, Prabhu Dayal and Ashok Kumar alone . to .be brought 0n the record as legal represrntatives of the deceased Nanak Chand, alth0ugh Nanak Chand had left behind the aforesaid . three sons; three daughters, namely, Satnam' Devi, Laj,,; anti and

Smt. Raj Rani, and h.is widow Smt. Chandan Bai. .

Prabhu Dayal; one of the three sons of Nanak Chand died in 1961 leaving behind his daughter Santosh Kumari. His .widow Smt.

Lajwanti appliedfor being substituted as an heir of the deceased alongwith her minor daughter Sailio; h Kumari. Jn 1904 the mother of the; appetlant also ; ipplied to the Settlement Officer that she and . her three d.aughte.rs may also be substituted as heirs and legal representatives of Nanak Chand deceased regarding payment ofcompel)- ·

sa(ion in re.spec! of the vorified claim They also prayed for cond.o:nation of delay in fi]ing the application for substitution an(! f9r initiating proceedings under s. 9 of the Displaced Persons. '{Compensation aµd Rehabilitation) Act~ 1954. The Settleme11t

SUPR!!ME COURT REPORTS [l 9841 3 S.C.R.

OfficH cocerntd recomtended for condonation of delay in_ hfr report dated 24th March, 1964 to the Regional Settlement Commissioner Rajasthan with the_ delegated powers of Chief Settlement Commis:

sioner, Rajas!han, who by his order dated 6th April, 1964 condoned the delay and directed that the case niay• be processed and finalised accordiiig to rules.

. .,

When the relevant -record was received by the M.O./S.O.

Rajasthau, the appellant's mother alleged that the previous order of substitution of heirs of Nanak Cliand, deceasad, had been obtained by fraud and mis-representation practised by her sous inasmuch as . they did not disclose in their application for substitution the existence of the appellan, t, her mother and si"sters. The M.0.-cumS.O. by his order dated November 16, 1964, dismissed the application of the mother of the appellant on the ground that tho previous order dated 27th Ocfober, _1956 passed by the Addition~! Settlement Commissiner declaring only three sorts of Nanak Chand deceased as his heirs, to the exclusion of deceased's. widow and daughters-was never challeµged by way of an appeal or revision, so the said order had assumed' finality.

He, therefore, declined to interfere and refused to grant redress. The ntbther of the appellant on ' he• own behalf and on behalf of . her three daughters, including the appellant,. filed an appeal in the Court of the Regional Settlement

Commissioner which came up before Shri S.S. Govilla, S.O. with delegated powers of Regionat Settlement Commissioner (Rajasthan) and he by his order dated 22nd December, 1964 C!ismissed the same.

The mother of the appellant undaunted by the failures, filed a revision petition before the Chief Settlement Commissioner, which came up for hearing before Shri D.N. Vohra, Settlement Commis sioner with delegated powers of Chief Settlement Commissioner, and he also took the view that the order dated lg th December,

1954 passed by the Additional Sttlement Commissioner had. become final and he had no jurisdiction to revise or amend the said order, and accordingly he dismissed the revision'. Thereafter the mother moved the Central Government under~. 33 of the Displaced Persons • (CQmpensation and Rehabilitation) Act, 1954 .!Jn. her own ef as well as on behalf of the appellant but the apphcat1on was _d1sm1ssed by the Central Government, Ministry of Rehabilitiation. On 30tb:

August, !96S the appellant als_o filed a revision against the ordet of the Additional Settlement Commissioner before the Chief Settlement Commissioner under. s. 5 of the ;:>isplaced Persons (Supplementary)

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ilAJ RA!!I v. SETTLEMENT COMMR. (Misra, J.) 767.

Verification of Claims Act, 195~. but this also met with the same A. fate on 25th September, 1965.without affording an opportunity of being heared to the appellant.

The appellant eventu11ly filed a writ petition before the High Court. of Delhi giving rise to the present appeal against the orders dated 25th September, 196}, passed by the Chief Settlement Commissioner, Delhi whereby he CDnfirmed the ord<; r, dated 27th October, 1956 passed by the Additional Settlement. Commissioner, refusing to substitute the appelhnt as legal heir of Nanak 'chand, deceased.

The. writ petition w.is dism'ssed by an order dated 7th January, 1970.

The appellant unsuccessfully filed a letters patent appeal which was dismissed on 29th January, 1970. Feeling aggrieve<l the appellant applied fot a certificat.e under Art. 133 of the Constitution, which waj grnnted. Thi> is how the appellant has come to this Court ..

It_ is cor(tended for the aJ?pe!lant that on 27th October, 1956 she was a minor when the order was. obtained by fraud and misrepresontation by Dewan Chand, without disclosing the names of . other heirs viz. the appel.lant and her mother and two sisters. The

appellant file~ Nvision petitfon under s. 5 of Claims (Supplementary) .

Act (12 of 1954) on 27th of November, 1964 before the learned Chief Settlement Commissioner, who without hearing the appellant an!i without affording her any opportµqity to substantiate her pleas, dismissed the revision petition on 25th September, 1965. This was in Viol.ation of the principles of f)atural justice.

The High Court chose to rely on the deposition ofDewan

Chand, respondent No. 2, to the etfeat that his father had been.

F murdered and he produced a certificate of death before the Chief Settlefrlent Commissioner certifying that Nanak Chand dd one year ten months prior to 25th October, 1956 and this certificate is alleged to have been .given on the applic; ition flied by Dowan Chand before the Prsident of the Municipal Committee, Abohat. The learn.e.d Single Judge ofthe High Court observed that the Additionah • Settlement Commissioner acted rightly in relying upon the cirtificate and substituting the sons of Nanak Chand as heirs of the deceased to his verified claim, on the ground that as Nanak Chand had died , prior tci the enforcement of the Hindu Succession Act his daughters.

ould not be heirs and could not succeed to the property of their father.

Shri Thakur, learned counsel for the appellant strenuously contended that if he had been given an opportunity by the <; hief

Settlement Commissioner he would have been able to produce the. evidence before him. that on the own admission of Dewan Chand: Nanak Chand had dlsappeared sometime in December, 1954 and a report about his disappearance was lodged by Dewan Chand .on 25th December, 1954 with the local police; Malhout, di'stric.t . Ferozeimr and a;, a result of. an enquiry. the police gave out that

Nanak Chand could riot be traced. This evidence could not be . produced before the Chief Settlement Commissioner beause the

 appellant was not lieard, ·

The decision of this case hing~ on the question whether . Nanak Chand had died before or after the enforcement of tJ.e Hindu Succession Act.· If he died before the enforcement of the Hindu Succession Act obviously the daughters could not get any sh&re in the property left by Nanak Chand. If on the_ otlrer hand he died after the enforcement of the Hindu Succession Act, the daughters would be equally entitled to .a share in the property le ff by Nanak

Chnd. In 2.ny case the widow of Nauak Chand would be entitled to a share in the property irrespective of the fact whether Nanak Chand died before or after the Hindu Succession Act. This aspect of the case has been completely lost sight of by the High Court. If Nanak Chand disappeared in December, 1954 on the report of D'wan Chand himself and has nofbeen heard of for seven years by those who would naturally have heard of him if h.e has been alive, there could be raised. a presumption Of death when the quetion arises.. But in the instant case no presumption arises as the question . arose just two years after the date of disappearance.

As regards the actual date of death the High Court dealing with. the death certificate observed as .follows : ·

"A:s an administraiive officer doing quasi-Judicial work, the Additional Settlement Commissioner was entitled to give credence to the death certificate. He was bound only to make a preliminary enquiry as to who were the heirs of.

Nanak Chandc He did not hove to.decide that question finally.

For a preliminary enquiry the death certificate singed by the respectable persons .of the place where the famiiy resided was sufficient. therefore,· the Additional Settlement Commissioner was satisfied that the substitution

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 RAJ !\AN! v. SETTLEMEtlT COMMR. (Misra, J.) 769.

of the sons of NanakChand in place .of th.e deceased would not prejudicially affect his daughter. It was not, therefore, necessary for him to hwe given an oppJrtunity to the daughter of being heard under sub-section (2).of section 5 of •the Displaced . Persons (Claims) Supplementary . Act,

1954."

A certificate given. by cespectable persons, of the place where the deceased once resided, to say the least, is not admissible in evidence. Sec. 35 of the evidence Act provides that an entry in any public or other official book, register, or record, . st1ting a fact , in issue or relevant fact, and.made by a public servant in the discharge

of.his official duty, or by any othor person in performance of a duty specially enjoin'd by the law of.the co1ntry in which such book, register or record is kept, is itself a relevant fact.

In the instant case a certificate by certain respeciable person of the place where the family oncJ re.sided does not satisfy the requirments of s. 35 of the evidence Act. There is n) proof that any statut9ry duty was cast upon the person issuing the certificate to keep a .record of birth and death and therefore, the certificate of death has no evidentiary .value. lt is very easy for a person to obtain death. certificate from the socalled. respectable persons in order to grab .the property. If according to Dewan Chand, Nanak Chand had died he must also indicate where did he die and itis . the place of his death which-will be relevant -and not the place of his birth or residence. The certificate obviously is not of the place where Nanak Chand died. We.are of the view the authorities have gravely '.erred in relying upon the certificate of death which was indmissible

!n ((Vidence,

The High Oiurt repelled thecontcntion raised on behalf of the appellant tht opportunity. should have been given to the appellant

under s. 5 (L) of the Displacd Persons (Claim) Supplemeqtary Act, 1954 merely on the assumption that Nanak Chand had died muc.h before the enforcement of the Hindu Succession Act and, therefore, no. prejudice has been caused to the daughters as they would not be· ari heir._ It is simply begging the question.

Whether daughers would be entitled to an interest in the propert; left by Nanak Chand • will depend upon the. deatli of Nanak Chand before or after the enforcement of Hindu. Succession Act. It .wasan important question, . therefor a, to decide whether Nanak Chand died before th\i enforce .

A ..

• 710

SUPREME COURT REPORTS [1984] 3 S; C.ft.

ment of Hindu Succession Act or not.· For that it was absolutely 'essential that an opportu"ity should h1; e been afforded to the appellant in accordance with the principle of natural justice.

As observed earlier, if ail opportun'ity had been. given w the appellant she would have produced the admission of Dewan Chand that his father Nanak Chand dtsappearcd sometime in December, I J54 and . as a result of an enquiry by the police, no trace of him could be found out.

The finding th'.lt Nanak Ch1nd died before the enforcement of the Hindu Succes>ion. Act, based on the death certificate, cannot be sustained for .a moment as it is based on an inadmissib\e piece of evidence. If that finding is set aside, there is no escape from the conclusion that Nahak Chand died not before but after the enforcement of the Hindu Success.ion A<; j, that is, after 25th October, 1956.

There is no dispute that Nanak Chand died leaving behind . his widow,. three sons and three danghters. Dewan Chand fraud;;. fontly obtained on 'order alleging that Nanak Chand died leaving behind only .three sons. If Nanak Chand died after the enforcement of the. Hindu.

Succession Act, as found ear1ier, .obviously, his widow, three sons and three daughters wold succeed . to his interest in equal shares, which would work out to I/7th. Now the question• arises what was the. interest of Nanak Chand at the ti.ne of his death.

As the prop_erty in question was Mitaksharil coparcenery P'.operty, his interest wonlcf be determined in ace0rdance with the provisions of Explanation I of s. 6 of the Hindu Succession Act, It would be. appropriate at this stage lo read s. 6. insofar as it is material for the purpose Of this case :

"6. When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara copareenery property, his interest in the property, shall devolve by survivorship npon the sntviving

 G members of the coparcenery and not in aceordance with this Act :

Provided that, if the deceased had left him. surviving a . female relative specified in Class I of the Schedule or a male . relative, specified in that class who claims, through such female relative, the interest of the. deceased in the Mitakshara coparcenery property shall devolve by testamentary

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l. .

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RAJ , RANI V. SETTLEMllNT C0M.Md. (Mi; ra, J.) ?1[

or intestate succ; ssion, as the casi may be,. under this Act A and .. not by survivorship.

Explanatio!l' I.-For the purposes of this section,. the interest of a Hindu Mitakshara coparcenery shall be deemed to be the share in th' property that would have been_

allotted to him if a partition of the property had taken place immediately before his death, irrespective of whethr he was entitled lo claim partition or not."

' The interest of Nanak Chand shall bo 'deemed to be the share in the prop,, ty that would han' bem allotted to him if a partition ofthe property had taken place im1mdiately before his death irres pective c;>f wheth'r he wai entitled t_o claim putition or not. In view of Explanation I ofs. 6, Nanak Chand would hwe got I/5th interest on p>ttition between him 11nd h, s ivife and three so1is. If once -the intere>t of Nanak Chand is determined to be I/ 5th before . . hii. death, his itµerast would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5 Xl/7, that is, i/35theach. The. claim of these heirs. cannot be denied merely because some of them have not advanced the claim.

When the questfon of determination of hare among the heirs crops up before the Court, the Court hai to see that.every heir gets his duo.

Shri Itror,1 appearing for the. respond, nts could not successfully meet the point raised on behalf of the appellant.

 For the foregoing discussion the appeal must succeed and it is accordingly allowed atrd the judgment of the High Court as well. as of the authorities below are setjaside and share~ of the lhree sons, three daughters and.the widow are determined as follows: Each of the three sons-1/35; each of the hree daughter;-1/35; the widow- J/35+1/5. As the widow has inherited the interest of her husband after his death her _share would be augmented by 1/5. Therefore, her share would come to 1/35+ l/5.'...8/35.

. In the circumstances of the case we direct the parties to bear their own costs.

H.S.K.

Appeal allowed •