DELHI DISTRICT COURT

SMT. ASHRAFI DEVI VS. SMT. GAYATRI DEVI

DATED : 16.09.2008

Summarised Judgement (Scroll for Complete Judgement)

Facts of the Case:

This is a succession petition filed by the petitioner Smt. Ashrafi Devi for the grant of Succession Certificate in her favour, in respect of debts and securities left behind by his deceased son Sh. Krishan Kumar, who died at Delhi on 15.03.2006, leaving behind besides petitioner, his widow and a daughter namely Smt. Gayatri (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) Devi and Ms. Pratikcha Sharma, who are respondent No. 1 and 2 in this petition.

After filing of this petition, notice of filing of this petition was given to the general public by way of publication in the newspaper 'VIR ARJUN' dated 03.05.2007, but none has appeared from general public to oppose or contest the present petition. Notices were sent to respondents, in response to the notices, respondents No. 1 and 2 filed objections in this case.

An application under order 1 rule 10 CPC has been filed by the objector in which the obector request that since the objectors have claimed that Om Parkash has obtained amount from LIC therefore he becomes a necessary party and also the LIC becomes a necessary party in this case. In reply to the application the petitioner opposes it stating that Omprakash is neither a necessary nor a proper party. Admittedly Omprakash is brother of deceased and a brother of deceased does not fall in class one legal heir category.

Observation of Court:

Therefore, in view of the above, I am of the considered opinion that there is no impediment for grant of Succession Certificate in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in the service benefits of deceased Sh. Krishan Kumar. I, accordingly direct that a Succession Certificate be issued in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in equal shares that is 1/3rd share each in the service benefits that is DCRG, CGEGIS'80 of deceased Sh. Krishan Kumar, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.

Judgement:

So far as pension and arrears of pension of the deceased are concerned, as per CCS Pension rules, the same is indivisible and payable to widow in case widow is alive and has not remarried. Thus, payment shall be exclusively right of the widow including arrears of pension, if any. The remaining service benefits be divided in the ratio of 1/3rd share each.

However, the objector Smt. Gayatri Devi also deposed that besides the securities proved by the petitioner, the deceased has also left behind a LIC bearing No. 3330370147 in which one Om Parkash was a nominee and who has already obtained the said LIC policy amount of Rs.1,13,325/-, vide Cheque No. 636853 dated 06.05.2006 drawn on Corporation Bank, Adil Bagh, Palam, New Delhi. Law is well settled that the nominee is merely a receiving hand and a nominee does not steps into the shoe of (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) successor. Nominee accept money for and on behalf of successor as a trustee only. Thus, the petitioner as well as objectors being true successors are also entitled for that amount in the ratio of 1/3rd share each.

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DELHI DISTRICT COURT

SMT. ASHRAFI DEVI VS. SMT. GAYATRI DEVI

DATED : 16.09.2008

IN THE COURT OF SHRI DIG VINAY SINGH: ADMINISTRATIVE

CIVIL JUDGE : DELHI

Petition No. : 484/2006

Date of Institution : 31.07.2006

Date of order when reserved : 16.09.2008

Date of order when announced :16.09.2008

In the matter of:-

Smt. Ashrafi Devi, w/o. Late Sh. Munshi Lal, r/o. IX/4526, Gali No. 5, Ajit Nagar, Gandhi Nagar, Delhi-110031.                                                                       ....Petitioner.

Versus

1. Smt. Gayatri Devi, w/o. Late Sh. Krishan Kumar,

2. Ms. Pratikcha Sharma, d/o. Late Sh. Krishan Kumar,

Both R/o. Type-I/40, Press Colony, Mayapuri, New Delhi-64.

3. Government of India Press, Ring Road, Maya Puri, New Delhi - 110064, through its Director.                                                                                                   .....Respondents.

JUDGMENT :

This is a succession petition filed by the petitioner Smt. Ashrafi Devi for the grant of Succession Certificate in her favour, in respect of debts and securities left behind by his deceased son Sh. Krishan Kumar, who died at Delhi on 15.03.2006, leaving behind besides petitioner, his widow and a daughter namely Smt. Gayatri (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) Devi and Ms. Pratikcha Sharma, who are respondent No. 1 and 2 in this petition.

2 After filing of this petition, notice of filing of this petition was given to the general public by way of publication in the newspaper 'VIR ARJUN' dated 03.05.2007, but none has appeared from general public to oppose or contest the present petition. Notices were sent to respondents, in response to the notices, respondents No. 1 and 2 filed objections in this case.

3. Vide detailed order dated 07.04.2008, the objections filed by the both objectors have been decided. Reproduction of relevant para No. 3 to 5 would be relevant here.

3. Both objectors Respondent No 1 and 2 do not dispute the relationship of the petitioner with the deceased. Nor is there any dispute of the relationship between the two objectors and the deceased. It is also undisputed that deceased died intestate. Admittedly there is no other class one legal heir left behind by the deceased. A mother, widow and a daughter of a deceased male dying intestate falls in class one legal heir category as provided in the schedule of Hindu Succession Act and, section 8 section 9 of the said Act states that the assets of a deceased male dying intestate shall devolve upon all the class one legal heirs simultaneously and exclusively thereby meaning that the legal heir in class II category cannot inherit the property of a male Hindu until there are class one legal heir alive left behind by the deceased. 

Objectors claimed that they were not made party in the case nor the relationship was disclosed with the deceased. This contention is against the records. (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) In the petition name of respondents are duly mentioned and in the list of near relatives of the deceased Annexure a filed along with the petition the relationship of both the respondent is mentioned as that a wife of deceased and daughter of deceased in the name of the two respondents itself. 

It is claimed by the objectors that the petitioner in connivance with the life insurance Corporation and brother of deceased Om Parkash obtained an amount of Rs 1,1 3,325 in the month of May 2006 against an LIC policy left behind by the deceased. It is claimed that LIC is a necessary party. It is also argued that mother of deceased cannot be sole beneficiary of the assets of deceased. There is no dispute to this question that as per Hindu succession Act mother, widow and daughter of a deceased are all entitled to equal share being class one legal heir. It is lastly claimed by the objectors that the respondent No 1 widow of deceased was residing along with the petitioner during the lifetime of deceased and entire istridhan of respondent No 1 is still lying in the custody of the petitioner which is proximity to the tune of Rs 5 lakhs and therefore petitioner is liable to return those articles. 

So far as this contention is concerned it cannot be a subject matter of succession petition. The claim of istridhan cannot be agitated in this court and the proper course for respondent No 1 is to approach ordinary civil court for recovery of the same. This is a summary proceeding wherein succession to the assets of a deceased male dying intestate has to be ascertained. Section 373 of Indian succession Act clearly provides that this court is to prima facie see as to who is entitled to the succession. In such summary proceedings recovery of istridhan articles cannot be made a subject. 

So far as objection that the petitioner in collusion with Om Parkash brother of deceased and in collision with life insurance Corporation of India obtained an LIC policy amount is concerned it is claimed on behalf of the petitioner that Omprakash was a nominee made by the deceased in the said LIC policy. In case LIC has made payment to the nominee, no wrong has been committed by the LIC. It is a different matter that a nominee is merely is a trustee who holds money or receives money on behalf of actual successors. In such circumstances if the objectors claim that they have their rights to the said amount of LIC policy, the proper course for them would be to file appropriate recovery proceedings in ordinary civil court.

4. An application under order 1 rule 10 CPC has been filed by the objector in which the obector request that since the objectors have claimed that Om Parkash has obtained amount from LIC therefore he becomes a necessary party and also the LIC becomes a necessary party in this case. In reply to the application the petitioner opposes it stating that Omprakash is neither a necessary nor a proper party. Admittedly Omprakash is brother of deceased and a brother of deceased does not fall in class one legal heir category. I've already mentioned above that as per Hindu succession Act only class one legal heirs as mentioned in schedule one of Hindu succession Act are entitled to succession exclusively and simultaneously. Till the time class one legal heirs her alive class II legal heirs cannot succeed to the property of a deceased. Merely because Omprakash was a nominee who has obtained some money of LIC policy as a nominee, he does not become a necessary party or even a proper party in this case. 

At the most if objector claims that the nominee has taken away the money which belongs to the objector, the proper course would be for the objector to file suit for recovery in ordinary civil court. This application under order I rule 10 CPC is liable to be dismissed on this short ground along. The application is dismissed In view of above discussion it is held that the petitioner as well as the two objectors namely Smt Ashrafi Devi, Smt. Gayatri Devi and Pratiksha Sharma are entitled to succession certificate to the assets of deceased in the share of one-third each subject to payment of court fees proportionately. The objections are accordingly decided and put up this matter now for recording statement of the petitioner to exhibit the securities of the deceased.

3 The deceased Sh. Krishan Kumar was the son of petitioner Smt. Ashrafi Devi. He expired on 15.03.2006 at Delhi and his death certificate is proved as Ex.PW1/1. Besides the petitioner, the deceased has left behind (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) his widow Smt. Gayatri Devi and one daughter Ms. Pratikcha Sharma, who are objectors No. 1 and 2 in this petition. There is no other class-I legal heirs of the deceased except petitioner and objectors No. 1 and 2. The deceased was working with Government of India Press. A reply has been filed by the said department furnishing the outstanding dues of the deceased, the same is proved as Ex.PW1/2. The deceased was ordinarily a resident of Delhi.

4 Therefore, in view of the above, I am of the considered opinion that there is no impediment for grant of Succession Certificate in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in the service benefits of deceased Sh. Krishan Kumar. I, accordingly direct that a Succession Certificate be issued in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in equal shares that is 1/3rd share each in the service benefits that is DCRG, CGEGIS'80 of deceased Sh. Krishan Kumar, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.

5 So far as pension and arrears of pension of the deceased are concerned, as per CCS Pension rules, the same is indivisible and payable to widow in case widow is alive and has not remarried. Thus, payment shall be exclusively right of the widow including arrears of pension, if any. The remaining service benefits be divided in the ratio of 1/3rd share each.

However, the objector Smt. Gayatri Devi also deposed that besides the securities proved by the petitioner, the deceased has also left behind a LIC bearing No. 3330370147 in which one Om Parkash was a nominee and who has already obtained the said LIC policy amount of Rs.1,13,325/-, vide Cheque No. 636853 dated 06.05.2006 drawn on Corporation Bank, Adil Bagh, Palam, New Delhi. Law is well settled that the nominee is merely a receiving hand and a nominee does not steps into the shoe of successor. Nominee accept money for and on behalf of successor as a trustee only. Thus, the petitioner as well as objectors being true successors are also entitled for that amount in the ratio of 1/3rd share each.

No further orders are required to be passed in the matter. File be consigned to Record Room.

Announced in the open court on 16.09.2008            

(DIG VINAY SINGH )

Administrative Civil Judge:Delhi

Objector with counsel Sh. S.P. Chaudhary.

Statement of petitioner and objector recorded as PW1 and OW1. PE closed.

Arguments heard.

Be awaited for orders

Recalled

After lunch

Present : None.

Vide separate judgment announced in the open court today, Succession Certificate is ordered to be issued in favour of petitioner Smt. Ashrafi Devi and also in favour of objectors No. 1 and 2 namely Smt. Gayatri Devi and Ms. Pratikcha Sharma in equal shares that is 1/3rd share each in the service benefits that is DCRG, CGEGIS'80 of deceased Sh. Krishan Kumar, on filing of requisite court fee and on furnishing an Indemnity Bond with one surety within 15 days.

So far as pension and arrears of pension of the deceased are concerned, as per CCS Pension rules, the same is indivisible and payable to widow in case widow is alive and has not remarried. Thus, payment shall be exclusively right of the widow including arrears of pension, if any. The remaining service benefits be divided in the ratio of 1/3rd share each.

However, the objector Smt. Gayatri Devi also deposed that besides the securities proved by the petitioner, the deceased has also left behind a LIC bearing No. 3330370147 in which one Om Parkash was a nominee and who has already obtained the said LIC policy amount of Rs.1,13,325/-, vide Cheque No. 636853 dated 06.05.2006 drawn on Corporation Bank, Adil Bagh, Palam, New Delhi. Law is well settled that the nominee is merely a receiving hand and a nominee does not steps into the shoe of (Jud./P.No.484 of 06/dtd.16.09.08/Smt. Ashrafi Devi Vs. State/total pages (6)/KK) successor. Nominee accept money for and on behalf of successor as a trustee only. Thus, the petitioner as well as objectors being true successors are also entitled for that amount in the ratio of 1/3rd share each.

No further orders are required to be passed in the matter. File be consigned to Record Room.