Afr High Court
Case Details
1 2025:CGHC:22580 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CR No. 180 of 2017 Order Reserved on 25.03.2025 Order delivered on 09.06.2025 Khitibhushan Patel S/o Kanwaldhar Patel Aged About 63 Years R/o Village Armuda Tahsil Pussore District Raigarh Chhattisgarh., Chhattisgarh versus --- Applicant 1. Smt. Fulkumari Patel W/o Late Panchram Patel R/o Bade Gumda, Tahsil Gharghoda, District Raigarh Chhattisgarh., Chhattisgarh 2. The Branch Manager , U C O Bank Raigarh Tahsil And District Raigarh Chhattisgarh. , District : Raigarh, Chhattisgarh 3. Public at Large --- Respondent(s) CR No. 175 of 2017 Khitibhushan Patel S/o Kanwaldhar Patel Aged About 63 Years R/o Village Armuda Tahsil Pussore District Raigarh Chhattisgarh. , Chhattisgarh ---Applicant(s) Versus 1. Smt. Fulkumari Patel W/o Late Panchram Patel , R/o Bade Gumda Tahsil Gharghoda District Raigarh Chhattisgarh., Chhattisgarh 2. Public At Large Respondent(s) SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2025.06.09 16:32:16 +0530 2 CR No. 176 of 2017 Khitibhushan Patel S/o Late Kanwaldhar Patel, Aged About 63 Years R/o Village Armuda, Tahsil Pussore, District Raigarh, Chhattisgarh., Chhattisgarh ---applicant Versus
Legal Reasoning
1. Smt. Fulkumari Patel W/o Late Panchram Patel, R/o Bade Gumda, Tahsil Gharghoda, District Raigarh, Chhattisgarh., Chhattisgarh 2. The Branch Manager, State Bank Of India, Pussore Branch, Tahsil Pussore, District Raigarh, Chhattisgarh., District : Raigarh, Chhattisgarh 3. Public at Large, --- Respondent(s) CR No. 179 of 2017 Khitibhushan Patel S/o Late Kanwaldhar Patel, Aged About 63 Years R/o Village Armuda, Tahsil Pussore, District Raigarh, Chhattisgarh, Chhattisgarh ---Applicant(s) Versus 1. Smt. Fulkumari Patel W/o Late Panchram Patel, R/o Bade Gumda, Tahsil Gharghoda, District Raigarh, Chhattisgarh, Chhattisgarh 2. The Branch Manager, State Bank Of India, Pussore Branch, Tahsil Pussore, District Raigarh, Chhattisgarh, District : Raigarh, Chhattisgarh 3. Public At Large --- Respondent(s) CR No. 184 of 2017 Khitibhushan Patel S/o Kanwaldhar Patel Aged About 63 Years R/o Village Armuda, Tahsil Pussore, Distict Raigarh Chhattisgarh , Chhattisgarh ---Applicant(s) 3 Versus 1. Smt. Fulkumari Patel D/o W/o Late Panchram Patel R/o Bade Gumda, Tahsil Gharghoda, District Raigarh Chhattisgarh, Chhattisgarh 2. The Divisional Manager, Bhartiya Jeevan Beema Nigam, First Floor, Sunaliya Building, Sattigud Chowk, Tahsil And District Raigarh Chhattisgarh , District : Raigarh, Chhattisgarh 3. Public at Large --- Respondent(s) For Applicant(s) For Respondent No.1 For Respondent No.2 For UCO Bank : Mr. H.S. Patel, Advocate : Mr. Manoj Kumar Sinha, Advocate : Mr. Swayam Tehanguria, Advocate : Mr. Ravindra Sharma and Mr. Rakesh Kumar For SBI : Mr. Sudeep Agrawal with Ms. Ruchi Agrawal, Manikpuri, Advocates Advocate Hon'ble Shri Justice Narendra Kumar Vyas CAV Order 1. Since the issue involved in the bunch of Civil Revisions and the facts are
Decision
one and the same, they are heard analogously and are being disposed of five Civil Revisions i.e. CR No. 180 of 2017, CR No. 175 of 2017, CR No. 176 of 2017, CR No. 179 of 2017 and CR No. 184 of 2017 by this common order. 2. These five civil revisions have been preferred under Section 384 (3) of the Indian Succession Act, 1925 (henceforth ‘the Act’) against the order dated 13.10.2017 passed by the Fourth Additional District Judge, Raigarh in different Civil Appeals which have been dismissed, affirming the order of Succession Court i.e. Second Civil Judge, Class-I, Rajgarh in five Succession Cases. 3. Facts of the case, in brief are that the marriage of Panchram and 4 Fulkumari Patel was solemnized in the year 1987 and from their wedlock, daughter namely Jyoti was born. On 07.05.1993 Fulkumari Patel left her matrimonial house and daughter also. On 26.06.1999 Pancharam who was working as constable in the police department died during service in the road accident. Subsequently, Jyoti Patel used to live with her grandfather namely Kamaldhar and he died also. Thereafter, Jyoti Patel started living with the elder brother of deceased Pancharam. It is contended that on 30.12.2005 the applicant adopted Ku. Jyoti Patel as his daughter and since then she was living with the applicant. In the year, 2000, Jyoti Patel obtained compassionate appointment on the post of constable in the Police Department and unfortunately, she died unmarried on 17.09.2014. 4. During her life time, Ku. Jyoti Patel had taken some Insurance insurance policy and also deposited money in different banks. After her death dispute arose between the respondent No.1 and the applicant to inherent the estate of deceased deposited by way of Insurance policy as well as money in the Banks, therefore, five applications under Section 372 of Indian Succession Act were filed before learned Second Civil Judge Class-I Raigarh for claiming Succession over the estate of the deceased mainly contending that deceased Ku. Jyoti Patel was his adopted daughter, looked after by him and also provided education to her, therefore, he is entitled to get succession certificate in his favour. The respondent No.1 / objector appeared in the said proceedings and raised 5 objection and also filed counter claim, claiming succession for insurance policies issued by life insurance corporation, Raigarh, Fixed deposit receipt, amount kept in the saving account. The respondent No.1 has also filed Succession Case No. 21 of 2014 against the applicant for getting succession of the money deposited in the Police Department wherein the applicant has also filed counter claim. 5. Learned Succession Court after hearing the parties, has partly allowed the succession certificate in favour of the applicant in case No. 18 of 2014 and directed that the applicant is entitled to get half of the amount deposited in the State Bank Branch Pusour bearing account No. 11356597894. Learned trial Court in Succession Case No. 21 of 2014 filed by Fulkumari has granted Succession for obtaining Rs. 3,50,000/- the dues payable to legal heirs after death of Ku. Jyoti Patel. The applicant preferred an appeal and after hearing the parties, the appellate Court vide impugned order dated 13.10.2017 has been rejected the appeals of the applicant and affirmed the order passed by the trial Court. Hence, this revision. 6. Learned trial Court vide order dated 30.01.2016 granted succession certificate in favour of respondent No. 1 in all five cases. Against that order, the applicant has preferred an appeal under Section 384 of Succession Act, 1925 which has been dismissed by Appellate Court vide order dated 13.10.2017. The details of succession Application, amount claimed, appeal number and date of order passed by the Appellate Court are given in the table form as under:- 6 Civil Revision Succession No. Appellate Case No. Appellate Order Dated Bank/Acc ount details Amount CR No. 175 of 2018 CR No. 176 of 2017 CR No. 179 of 2017 CR No. 180 of 2017 CR No. 184 of 2017 21 of 2014 13 of 2016 13.10.2017 Salary Account 19 of 2014 15 of 2016 13.10.2017 TDR FDSaving A/c. No. 11356653 737 Rs. 3,50,000/- Rs. 2,73,363/- 18 of 2014 16 of 2016 13.10.2017 A/c. No. 11356597 894 Rs. 1,21,505.3 9/- 20 of 2014 14 of 2016 13.10.2017 Saving A/c. No. 20290110 045451 17 of 2014 17 of 2016 13.10.2017 Total 15 Insurance Polices Total Rs. 10,49,000/- Rs.9,00,00 0/- Rs. 26,57, 868/- 7. Learned counsel for the applicant would submits that order passed by the trial Court as well as Appellate Court are perverse, erroneous and contrary to the material available on record. He would further submit that both the Courts below have failed to appreciate the evidence and documents produced before it in its correct perspective. He would further submit that both the Courts below have erred in considering the fact that respondent No.1 had deserted by her husband and daughter, and since then she has not turned up in her matrimonial house for taking care of her daughter, therefore, the respondent No.1 is not entitled to seek succession certificate in her favour. He would further submit that the both Courts below have failed to appreciate that the name of applicant is 7 mentioned as nominee of deceased Jyoti Patel in her service record and other documents related to Bank as well as LIC, therefore, being nominee the applicant is entitled to receive the amount deposited in the name of deceased. He would further submit that after desertion of Jyoti Patel by her mother, she was looked-after by the applicant and provided education after death of Pancharam Patel father of deceased Jyoti which clearly establishes that the applicant has performed all liability and legal moral obligation of maintaining Jyoti Patel, therefore, he is entitled to get succession of the estate left by the deceased. He would further submit that the both the Courts have failed to appreciate that during her lifetime deceased Jyoti has sworn an affidavit mentioning that she is living under conservation of the applicant and the applicant will be the successor and would pray for allowig the Civil Revisions. To substantiate his submission, he would rely on the judgment in the case of State of Chhattisgarh and others vs. Dhirjo Kumar Sengar reported in 2009(13) SCC 600. 8. On the other hand, learned counsel for respondent No.1 would submit that respondent No.1 claiming successor of late Jyoti Patel, being her mother, as such order passed by both the Courts below is legal, justified and does not warrant interference by this Court. He would further submit that both Courts below have allowed the application for grant of succession certificate in favour of respondent No.1 being mother of late Jyoti Patel. He would further submit that there is concurrent finding of the both courts below wherein both the Courts below have held that the respondent No.1 is successor of late Jyoti Patel, as such there is no any 8 illegality committed by the both courts below. He would further submit that concurrent findings recorded by both the courts below holding that respondent No.1 is entitled for succession certificate and, therefore, granting certificate is a concurrent finding based on evidence available on record and interference is not called for in revisional jurisdiction under Section 388(3) of the Act,1925 and would pray for dismissal of the appeals. To substantiate his submission, he would rely on the judgment of Hon’ble Supreme court in the case of Smt. Sarabati Devi and Anr. vs. Smt. Usha Devi reporte din 1984 (1) SCC 424. 9. I have heard learned counsel for the parties and perused the record. 10. The question for determination before this Court is “Whether the impugned order passed by the Courts below suffers from perversity or illegality warranting interference by this Court?. 11. To appreciate the point emerged for determination by this Court, it is expedient for this Court to go through the relevant provisions of Succession Act, 1925, Hindu Succession Act 1956 and Life Insurance Act 1938. Section 372 of Succession Act deals with application for Succession certificate and section 372(3) provides that application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof. This Section does not prohibit a nominee from claiming a certificate on the basis of nomination but the nominee has no right to retain the assets of deceased. The distribution has to be made as per their succession Act applicable to them. Section 15 of Hindu Succession Act, 1956 provides general Rule of 9 Succession in case of Female Hindu. According to the Section, the property of female Hindu intestate shall devolve according to the Rules set out in Section 16. Sections 15 and 16 of the Hindu Succession Act are reproduce below:- Section 15:- The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:- (a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1), (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. Section 16:- Order of succession and manner of distribution among heirs of a female Hindu. The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely:― Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2.―If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestates death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestates death. Rule 3.―The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death. Section 39 of the Insurance Act, 1938 deals with the Nomination by policyholder. This section provides that holder of a policy of life 10 insurance on his own life may, when effecting the policy or at any time before the policy matures for payment, may nominate the person to whom the money secured by the policy shall be paid in the event of his death which means the nominee will be hand who he is authorized to receive the amount. The amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. 12. The law with regard to right of the nominee vis-a-vis the heirs of the deceased is subject matter of examination by the Hon’ble Supreme Court in various judgments. The supreme Court in the case Smt. Sarabati Devi and Anr. vs. Smt. Usha Devi reported din 1984 (1) SCC 424. The Hon’ble Supreme Court has held as under:- 5. We shall now proceed to analyse the provisions of section 39 of the Act. The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. If the nominee is a minor, the policy holder may appoint any person to receive the money in the event of his death during the minority of the nominee. That means that if the policy holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bon fide to the nominee already registered with him, the insurer gets a valid discharge. Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the lifetime of the assured. If the policy is transferred or assigned under section 38 of the Act, the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate. It is not necessary to refer to sub-section (7) of section 39 of the Act here. But the summary of the relevant provisions of section 39 given above establishes clearly that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. 11 Such succession may be testamentary or intestate. There is no warrant for the position that section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament' in paragraph 16 of the decision of the Delhi High Court in Mrs. Uma Sehgal's case (supra). If section 39 of the Act is contrasted with section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenous character of the right of a nominee would become more pronounced. It is difficult to hold that section 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in sub-section (6) of section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where registered. wills are 13. The Hon’ble Supreme Court in the case of Shipra Sengupta vs. Mridul Sengupta and others reported in 2019 (10) SCC 680 has held as under;- 16. Learned counsel for the applicant also placed reliance on a Division Bench judgment of the Delhi High Court in Ashok Chand Aggarwala v. Delhi Administration and others (1998) VII AD (Delhi) 639. This case related to the Delhi Co- operative Societies Act . The High Court while following Sarbati Devi case (supra) held that it is well settled that mere nomination made in favour of a particular person does not have the effect of conferring on the nominee any beneficial interest in property after the death of the person concerned. The nomination indicates the hand which is authorized to receive the amount or manage the property. The property or the amount, as the case may be, can be claimed by the heirs of the deceased, in accordance with the law of succession, governing them. 17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of 12 the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same. 14. Further submission of learned counsel for the applicant is that the deceased was her adopted daughter, therefore, he is adoptive father of the deceased, even if being nominee he is not entitled to get estate of deceased but being fallen within the heirs of category as defined 16(c) of Hindu Succession Act, 1956 as adoptive father, he is entitled to get succession of estate, as such he would pray for quashing of the order passed by appellate Court except 50% share of the amount of Rs. 9,00,000/- kept in the bank account which has been received by the applicant being nominee. This submission deserves to be rejected as according to Section 6 of Hindu Adoption and Maintenance Act 1956 there is certain procedure has to be followed for valid adoption which is not available on record. Section 6 reads as under:- Section 6 Requisites of a valid adoption.―No adoption shall be valid unless— (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter. 15. The applicant in the evidence before the trial Court has not led any evidence to demonstrate that requirement of valid adoption as provided under Section 6 of the Act has been fulfilled or not. Even the applicant has not led any evidence to prove that there had been actual giving and taking ceremony performed while adopting the deceased. The Hon’ble Supreme 13 Court in the case of M. Gurudas & Ors vs Rasaranjan & Ors reported in 2006 (8) SCC 367 has held as under:- 26. To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony. Performance of 'datta homam' was imperative, subject to just exceptions. Above all, as noticed hereinbefore, the question would arise as to whether adoption of a daughter was permissible in law. 27.In Mulla's Principles of Hindu Law, 17th edition, page 710, it is (1) The stated: ceremonies relating to an adoption are "488. Ceremonies relating to adoption (a) the physical act of giving and receiving, with intent to transfer the boy from one family into another; (b) the datta homam, that is, oblations of clarified butter to fire; and (c) other minor ceremonies, such as putresti jag (sacrifice for male issue). (2) They physical act of giving and receiving is essential to the validity of an adoption; As to datta homam it is not settled whether its performance is essential to the validity of an adoption in every case. As to the other ceremonies, their performance is not necessary to the validity of an adoption. (3) No religious ceremonies, not even datta homam, are necessary in the case of Shudras. Nor are religious ceremonies necessary amongst Jains or in the Punjab. Therefore, it cannot be held that the applicant being adoptive father of deceased is entitled to get the estate of deceased. 16. From the above stated position of law, it is quite vivid that nominee has right to receive the amount under the Policy issued by the Insurance Company or the amount deposited in the bank either in the saving account or in the fixed deposit receipt but their distribution will be governed as per their law of succession. Since the parties are Hindu, as such distribution of the estate of deceased will be governed by Hindu Succession Act, 1956 and deceased being female, therefore, her estate will be distributed as per Sections 15 and 16 of the Act 1956. Section 16 14 of the Act provides that the legal heir specified in sub section (1), the mother being fallen in category C of Section 15 will be entitled to get succession of the estate deposited with the Insurance company or with the bank or with the employers i.e. Police Department. It is pertinent to mention here that the deceased being unmarried female and father of deceased also died, therefore, the mother is only legal heir to get succession of assets involved in the applications filed for grant of succession. Learned trial Court has granted succession in favour of respondent No.1 and learned Appellate Court considering the provisions has rightly dismissed the appeal filed by the appellant. The findings recorded by both the Courts below are legal and justified which does not warrant interference by this Court in exercise of power of revision. Even otherwise, it is well settled legal position of law that the power of interference by the revisonal Court is very limited unless findings recorded by the both the Courts suffer from perversity or patent illegality which warrants interference. 17. Considering this aspect of the matter, I am of the view that both the Courts below have not committed any material irregularity or illegality in granting succession in favour of respondent No.1 which warrants interference by this Court. Accordingly, the civil revisions being devoid of merit deserve to be dismissed and they are hereby dismissed. Sd/- (Narendra Kumar Vyas) Judge Santosh