Gauhati High Court
Gajen Talukdar And Ors. vs Smt. Dipamoni Das on 24 March, 2005
Equivalent citations: AIR 2005 Gau 147
Bench: A Saikia
1. Heard Mr. P. P. Das, learned Counsel for the appellants. Also heard Mr. J.I. Borbhuyan, learned Counsel appearing for the respondent.
2. The legality and correctness of the judgment dated 4-1-2000 passed by the learned District Judge, Nalbari in Misc. (J) Case No. 50/99 arising out of Succession Case No. 28/98 has been challenged in this appeal on the sole ground that the learned Judge misconstrued Section 383 of the Indian Succession Act, 1925 (for short, the 'Act') and revoked the Succession Certificate duly granted to the appellant contrary to the provisions of Section 383 of the Act.
3. The factual matrix of the case as disclosed in the pleadings placed on record by the rival parties is that the appellant, the father of the deceased Dipen Talukdar who had an insurance policy for an amount of Rs. l.00.000/- in his name and on being shot dead by some miscreants on 19-8-97, approached the learned District Judge, Nalbari in Succession Certificate Case No. 28/98 on 29-4-98 for granting Succession Certificate in his favour with regard to the amount under the insurance policy aforesaid. The learned Judge on being satisfied with the materials on record made available before him, granted such Succession Certificate vide order dated 10-11-98.
4. Being aggrieved by such order dated 10-11-98, the respondent moved the same competent Court for revocation of the said Succession Certificate claiming that she was legally married wife of late Dipen Talukdar and their marriage was solemnized under the Hindu rites and customs on 22-3-96 and out of that wedlock a female child was born to them on 7-2-97. It was further alleged that such Succession Certificate was obtained by the appellant fraudulently and by suppressing material facts. In support of her claim of being a legally married wife, she produced documents i.e., Marriage Certificate issued on 16-1-99 which was marked as Exh. "A" as well as Birth Certificate dated 9-2-97 being Exh.-2 showing the birth of that female child wherein father's name was shown as Dipen Talukdar.
5. The learned Judge on perusal of those documents and upon hearing learned Counsel for the parties, in exercise of power under Section 383 of the Act, by the impugned judgment and order dated 4-1 -2000 revoked the Succession Certificate so granted in favour of the appellant and ordered for issuance of Succession Certificate to the respondent for Rs. 1.00.000/-. This is how the matter has been brought before this Court on appeal.
6. Mr. Das, learned Counsel appearing for the appellant, assailing the impugned judgment and order, has strenuously argued that at the time of filing of the Succession certificate Case on 29-4-98, there was no suppression of material facts nor was the certificate obtained fraudulently inasmuch as the appellant was not at all aware of such marriage. Even he had no knowledge of his deceased son's marriage with the respondent. It was only on filing of the revocation application he came to know that the alleged marriage took place between his son and respondent on 22-3-96 as reflected in the alleged marriage certificate procured on 16-1-99. It is submitted that a written objection praying for revocation and grant of Succession Certificate was filed by the respondent only on 18-5-99 much after the grant of Succession Certificate in favour of the appellant and as such the question of suppression of material facts at the time of filing and obtaining the said certificate by the appellant does not arise at all. Moreso, denying such claim of legal marriage with his son, the appellant filed objection before the learned District Judge against the prayer for revocation but according to him, the learned Judge, ignored such objection and illegally and without jurisdiction revoked the Succession Certificate earlier granted in his favour. In the premises forenoted, his categorical stand is that such revocation of Succession Certificate hits the provisions of Section 383 of the Act.
7. On the other hand, Mr. Borbhuyan, learned Counsel for the respondent, supporting the impugned judgment and order has contended that the Succession Certificate in question was obtained by the appellant fraudulently and by suppressing material facts and the same fact is evident from the petition filed by him itself wherein the respondent, being legally married wife and a necessary party was not arrayed as a party in the proceeding. Though the appellant, being a father, was well aware of the fact of their marriage, intentionally or wilfully in order to deprive the respondent of her share in property in question, hurriedly obtained the Succession Certificate. Hence the learned Judge rightly and correctly revoked . the same and granted Succession Certificate in her favour.
8. Before going to resolve the matter on the basis of the arguments advanced on behalf of the learned Counsel for the contesting parties, it would be apposite and apt to refer to Section 383 of the Act containing provision for revocation of succession certificate which reads as under :
"383. Revocation of certificate.-- A certificate granted under this Part may be revoked for any of the following causes, namely:--
(a) that the proceedings to obtain the certificate were defective in substance;
(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked."
9. In view of the submissions put forward by the learned Counsel for the parties, it is gathered that the respondent preferred this application for revocation of Succession Certificate under Clause (b) of Section 383 of the Act referred to above. Clause (b) of Section 383 clearly provides that a Certificate can be revoked, if same is found to be obtained fraudulently by making a false suggestion or by concealment from the Court some material facts related to the case. On careful perusal of the records, it appears that on the date of filing the Succession Certificate, the appellant had no knowledge about the marriage of the respondent with his late son. Even there was no whisper on the evidence on record to indicate that the appellant was ever informed or made aware of such marriage. Records also reveals that the alleged marriage certificate which was accepted as Exhibit 'A' was dated 16-1-99 and a hand written document as proof of the marriage solemnized on 22-3-96 which was obtained much after the issuance of the Succession Certificate which was granted on 10-11-98.
10. Upon hearing the learned Counsel representing their respective parties and on thorough examination of the materials available on records as well as the impugned judgment and order, it appears that there was no suppression of material facts at the time of preferring the application for grant of succession certificate and/or obtaining the certificate by the appellant. Nor had he obtained the certificate fraudulently. It is, therefore, not permissible to revoke the certificate underSection 383(b) of the Act. That apart, the learned District Judge not only revoked the certificate but also granted Succession Certificate in favour of the respondent only on the basis of the written objection filed by her on 18-5-99 which contained prayer for both revocation of certificate granted earlier to the appellant as well as to grant of certificate in her favour. Law requires that an application under Section 372 of the Act seeking for such certificate has to be made by the party giving detailed particulars as provided under the aforesaid section. In the case in hand, it was not done. Accordingly, this Court is of the firm view that the revocation of the succession certificate issued earlier is illegal and in violation of the provision of Section 383 of the Act. At the same time, granting of succession certificate to the respondent by the impugned judgment and order in absence of any application under Section 372 of the Act is held to be improper and bad in law. The impugned judgment and order is hereby set aside and quashed.
11. Although the impugned judgment and order has been set aside and quashed having been found to be contrary to the provision of Section 383 of the Act as well as for non-compliance ofSection 372 of the Act and the reasons being recorded hereinabove, the Court feels that as on date, the entitlement of the respondent and her minor daughter in view of the Exht. A, the marriage document and Exht. 2, the birth certificate of female child, to the succession certificate for the amount in question along with the appellant cannot be ignored. This Court is, therefore, of the opinion that the ends of justice would be satisfied if the matter is remanded to the Court of the learned District Judge to grant succession certificate also to the respondent including her minor daughter along with the appellant on the succession certificate already granted to the appellant on 10-11-98 so as to enable them to get the amount in question in three equal shares. It is ordered accordingly. The learned District Judge is directed to dispose of the matter within one month from the date of appearance of both parties who are directed to appear before him on 25-4-2005.
12. In view of what has been discussed and indicated above, this appeal stands disposed of on remand. Send down the case records immediately.
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