Case ID: 4803

Judgment:
Civil Appeal No 485 of 1971. From the Judgment and order dated the 29th January	 1970 of the Delhi High Court in Letters Patent Appeal No. 8/70. D.D. Thakur	 E.C. Agarwala and V.K. Panditta for the Appellant. Chaman Lal Itrora for the Respondent. The Judgment of the Court was delivered by MISRA J. The present appeal by certificate is directed against the judgment of the High Court of Delhi dated 29th January	 1970 in letters patent appeal confirming the judgment and order of the learned Single judge of the High Court dated 7th January	 1970	 765 Nanak Chand	 father of the appellant was a displaced person from West Pakistan where he held left agricultural lands in village Chhota Bhukh Autar	 tehsil Bahawal Nagar	 district Bahawalpur. After the partition of the country his claim bearing Index No. B/BP 3/259 was verified in his name for 26 standard acres 12.5 units. Nanak Chand disappeared sometime in December	 1954 and a report about his disappearance was lodged by the appellant 's brother Dewan Chand	 arrayed in this appeal as respondent No. 2	 on 25th December	 1954 with the local police	 Malhout	 district Ferozepur	 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 Nanak 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 Additional Settlement Commissioner	 Delhi on October 25	 1956 and alleged that Nanak Chand had died leaving behind three 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 allowed the application for substitution and directed Dewan Chand	 Prabhu Dayal and Ashok Kumar alone to be brought on the record as legal representatives of the deceased Nanak Chand	 although Nanak Chand had left behind the aforesaid three sons	 three daughters	 namely	 Satnam Devi	 Lajwanti and Smt. Raj Rani	 and his 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 applied for being substituted as an their of the deceased alongwith her minor daughter Santosh Kumari. In 1964 the mother of the appellant also applied to the Settlement officer that she and her three daughters may also be Constituted as heirs and legal representatives of Nanak Chand deceased regarding payment of compensation in respect of the verified claim. They also prayed for condonation of delay in filing the application for substitution and for initiating proceedings under section 9 of the . The Settlement 766 Officer concerned recommended for condonation of delay in his report dated 24th March	 1964 to the Regional Settlement Commissioner	 Rajasthan with the delegated powers of Chief Settlement Commissioner	 Rajasthan	 who by his order dated 6th April	 1964 condoned the delay and directed that the case may be processed and finalised according to rules. When the relevant. record was received by the M.O./S.O. Rajasthan	 the appellants mother alleged that the previous order of substitution of heirs of Nanak Chand	 deceased	 had been obtained by fraud and mis representation practised by her sons inasmuch as they did not disclose in their application for substitution the existence of the appellant	 her mother and sisters. The M.O cum S.O. by his order dated November 16	 1964	 dismissed the application of the mother of the appellant on the ground that the previous order dated 27th October	 1956 passed by the Additional Settlement Commissioner declaring only three sons of Nanak Chand deceased as his heirs	 to the exclusion of deceased 's widow and daughter was never challenged 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 mother of the appellant on her 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 Regional Settlement Commissioner (Rajasthan) and he by his order dated 22nd December	 1964 dismissed 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 Commissioner with delegated powers of Chief Settlement Commissioner	 and he also took the view that the order dated 18th December	 1954 passed by the Additional Settlement 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 section 33 of the on her own behalf as well as on behalf of the appellant but the application was dismissed by the Central Government	 Ministry of Rehabilitation. On 30th August	 1965 the appellant also filed a revision against the order of the Additional Settlement Commissioner before the Chief Settlement Commissioner under section 5 of the Displaced Persons (Supplementary) 767 Verification of Claims Act	 1954	 but this also met with the same fate on 25th September	 1965 without affording an opportunity of being heared to the appellant. The appellant eventually filed a writ petition before the High Court of Delhi giving rise to the present appeal against the orders dated 25th September	 1965	 passed by the Chief Settlement Commissioner	 Delhi whereby he confirmed the order dated 27th October	 1956 passed by the Additional Settlement Commissioner	 refusing to substitute the appoint as legal heir of Nanak Chand	 deceased. The writ petition was dismissed by an order dated 7th January	 1970. The appellant unsuccessfully filed a letters patent appeal which was dismissed on 29th January	 1970 Feeling aggrieved the appellant applied for a certificate under article 133 of the Constitution	 which was granted. This is how the appellant has come to this Court. It is contended for the appellant that on 27th October	 1956 she was a minor when the order was obtained by fraud and misrepresentation by Dewan Chand	 without disclosing the names of other heirs viz the appellant and her brother and two sisters. The appellant filed revision petition under section 5 of Claims (Supplementary) Act (12 of 1954) on 27th of November	 1964 before the learned Chief Settlement Commissioner	 who without hearing the appellant and without affording her any opportunity to substantiate her pleas	 dismissed the revision petition on 25th September	 1965. This was in Violation of the principles of natural justice. The High Court chose to rely on the deposition of Dewan Chand	 respondent No. 2	 to the effect that his father had been murdered and he produced a certificate of death before the Chief Settlement Commissioner certifying that Nanak Chand died one year ten months prior to 25th October	 1956 and this certificate is alleged to have been given on the application filed by Dewan Chand before the President of the Municipal Committee	 Abohar. The learned Single Judge of the High Court observed that the Additional Settlement Commissioner acted rightly in relying upon the certificate 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 to the enforcement of the Hindu Succession Act his daughters would not be heirs and could not succeed to the property of their father. 768 Shri Thakur	 learned counsel for the appellant strenuously contended that if he had been given an opportunity by the Chief Settlement Commissioner he would have been able to produce the evidence before him that on the own admission of Dewan Chand	 Nanak Chand had disappeared sometime in December	 1954 and a report about his disappearance was lodged by Dewan Chand on 25th December	 1954 with the local police	 Malhout	 district Ferozepur and as a result of an enquiry the police gave out that Nanak Chand could not be traced. This evidence could not be produced before the Chief Settlement Commissioner because the appellant was not heard. The decision of this case hinges on the question whether Nanak Chand had died before or after the enforcement of the Hindu Succession Act. If he died before the enforcement of the Hindu Succession Act obviously the daughters could not get any share in the property left by Nanak Chand. If on the other hand he died after the enforcement of the Hindu Succession Act	 the daughters would be equally entitled to a share in the property left by Nanak Chand. In any case the widow of Nanak 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 Dewan Chand himself and has not been heard of for seven years by those who would naturally have heard of him if he has been alive	 there could be raised presumption of death when the question arises. But in the instant case to 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: "As an administrative office 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 Chand. He did not hove to decide that question finally. For a preliminary enquiry the death certificate signed by the respectable persons of the place where the family resided was sufficient. Therefore	 the Additional Settlement Commissioner was satisfied that the substitution 769 of the sons of Nanak Chand in place of the deceased would not prejudicially affect his daughter. It was not	 therefore	 necessary for him to have given an opportunity to the daughter of being heard under sub section (2) of section 5 of the . " A certificate given by respectable persons of the place where the deceased once resided	 to say the least	 is not admissible in evidence. 35 of the evidence Act provides that ail entry in any public or other official book	 register	 or record	 stating a fact in issue or relevant fact	 and made by a public servant in the discharge of his official duty	 or by any other person in performance 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. In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of section 35 of the evidence Act. There is no proof that any statutory 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. It is very easy for a person to obtain death certificate from the so called 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 it is tho 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 inadmissible evidence. The High Court repelled the contention raised on behalf of the appellant that opportunity should have been given to the appellant under section 5(2) of the displaced Persons (Claim) Supplementary Act	 1954 merely on the assumption that Nanak Chand had died much before the enforcement of the Hindu Succession Act and	 therefore	 no prejudice has been caused to the daughters as they would not be an heir. It is simply begging the question. Whether daughters would be entitled to an interest in the property left by Nanak Chand will depend upon the death of Nanak Chand before or after the enforcement of Hindu Succession Act. It was an important question	 therefore	 to decide whether Nanak Chand died before the enforce 770 ment of Hindu Succession Act or not. For that it was absolutely essential that an opportunity should have been afforded to the appellant in accordance with the principle of natural justice. As observed earlier	 if an opportunity had been given to the appellant she would have produced the admission of Dewan Chand that his father Nanak Chand disappeared sometime in December	 1954 and as a result of an enquiry by the police	 no trace of him could be found out. The finding that Nanak Chand died before the enforcement of the Hindu Succession Act	 based on the death certificate	 cannot be sustained for a moment as it is based on an inadmissible piece of evidence. If that finding is set aside	 there is no escape from the conclusion that Nanak Chand died not before but after the enforcement of the Hindu Succession Act	 that is	 after 25th October	 1956. There is no dispute that Nanak Chand died leaving behind his widow	 three sons and three daughters. Dewan Chand fraudulently obtained on order alleging that Nanak Chand died leaving behind only three soils If Nanak Chand died after the enforcement of the Hindu Succession Act	 as round earlier	 obviously his widow	 three sons and three daughters would succeed to his interest in equal shares	 which would work out to 1/7th. Now the question arises what was the interest of Nanak Chand at the time of his death. As the property in question was Mitakshara coparcenery property	 his interest would be determined in accordance with the provisions of Explanation I of section 6 of the Hindu Succession Act. It would be appropriate at this stage to read section 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 coparcenery property	 his interest in the property	 shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance 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 771 or intestate succession	 as the case may be	 under this Act and not by survivorship. Explanation I. For the purposes of this section	 the interest of a Hindu Mitakshara coparcenery shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death	 irrespective of whether he was entitled to claim partition or not." The interest of Nanak Chand shall be deemed to by the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. In view of Explanation I of section 6	 Nanak Chand would have got 1/5th interest on partition between him and his wife and three sons. If once the interest of Nanak Chand is determined to be 1/5th before his death	 his interest would devolve upon his widow	 three sons and three daughters equally and thus the share of each one of them would be 1/5 x 1/7	 that is	 1/35th each. The claim of these heirs cannot be denied merely because some of them have not advanced the claim. When the question of determination of share among the heirs crops up before the Court	 the Court has to see that every heir gets his due. Shri Itrora appearing for the respondents 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 and the judgment of the High Court as well as of the authorities below are set aside and shares of the three sons	 three daughters and the widow are determined as follows: Each of the three sons 1/35; each of the three daughters 1/35	 the widow 1/35+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+1/5=8/35. In the circumstances of the case we direct the parties to bear their own costs. H.S.K. Appeal allowed.

Summary:
Nanak Chand	 father of the appellant	 a displaced person from West Pakistan and having a verified claim in his name for some land	 disappeared some time in December 1954. A report about his disappearance was lodged by the appellants brother	 Dewan Chand	 Respondent No. 2	 with the local police in Punjab. The police made an enquiry in the matter and ultimately gave out that Nanak Chand could not be traced. In response to a notice issued in the year 1956 in suo moto revision in regard to the verified claim	 in the absence of Nanak Chand	 Dewan Chand appeared and alleged bat Nanak Chand had died leaving behind three sons including him as the only legal heirs. Dewan Chand produced a certificate to the effect that Nanak Chand had died one year and 10 months prior to 25th October	 1956. The certificate Was issued on his request by some respectable persons of the place where the family once resided. The Additional Settlement Commissioner	 Delhi	 by his order dated 27th October	 1956 allowed the application for substitution and directed the three sons to be brought on record as legal representatives of the deceased Nanak Chand although Nanak Chand had left behind three sons	 three daughters including the appellant and his widow. The appellant	 in an attempt to have her name substituted	 filed a revision application against the order of the Additional Settlement Commissioner before the Chief Settlement Commissioner under s 5 of the . By his order dated 25th September 1965	 the Chief Settlement Commissioner confirmed the order of the Additional Settlement Commissioner dated 27th October	 1956 and dismissed the revision application of the appellant without affording an opportunity of being heard to the appellant. The High Court dismissed the appellant 's writ petition and Letters Patent Appeal against the order of the Chief Settlement Commissioner. The High Court observed that the Additional Settlement Commissioner acted rightly in relying upon the death certificate produced by Dewan Chand and substituting the sons of Nanak Chand as heirs of the deceased of his certified claim. Hence this appeal	 Allowing the appeal	 764 ^ HELD: A certificate given by respectable 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	 stating a fact in issue or relevant fact	 and made by a public servant in the discharge of his official duty	 or by any other person in performance 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. [769B C] In the instant case a certificate by certain respectable person of the place where the family once resided does not satisfy the requirements of section 35 of the evidence Act. There is no proof that any statutory 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. It is very easy for a person to obtain a death certificate from the so called 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 it is 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. The authorities have gravely erred in relying upon the certificate of death which was inadmissible in evidence. [769D E] To see whether daughters would be entitled to interest in the property left by Nanak Chand will depend upon the death of Nanak Chand before or after the enforcement of Hindu Succession Act and to decide as to when Nanak Chand died it was absolutely essential that an opportunity should have been offered to the appellant in accordance with the principles of natural justice. [769H; 770A]