Jasbir Kaur & Ors. v. Pritam Kaur & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Nachhatter Singh Bains, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : C. M. No. 11607-C of 2010 : Allowed as prayed for. C. M. No. 11608-C of 2010 : Application is allowed and Annexures A-1 to A-3 are taken on record, subject to all just exceptions. Main Appeal : Appellants are widow and minor daughter of Gurkirpal Singh, who was employed as Junior Engineer in U T., Chandigarh Administration. He died in harness. Respondents no.2 and 3 herein are minor daughter and R. S. A. No. 3903 of 2010 2 minor son of said Gurkirpal Singh from his first wife Harbans Kaur. There was divorce by mutual consent between Gurkirpal Singh and Harbans Kaur and thereafter, Gurkirpal Singh married appellant no.1 Jasbir Kaur and out of this wedlock, appellant no.2, who is minor, was born. Respondent no.1 Pritam Kaur is mother of Gurkirpal Singh. Appellants herein filed petition under Section 372 of the Indian Succession Act, 1925 (in short – the Act) seeking Succession Certificate regarding amounts of salary, Death-cum-Retirement Gratuity, Pension Provident Fund, Group Insurance Scheme, Leave Encashment, Ex-gratia payment, family pension, amounts of life insurance policy and amounts deposited in two banks. The appellants claim that claim of respondents no.2 and 3 herein had been satisfied by paying Rs.1,10,000/- towards their maintenance and other things, if any, payable to them. Accordingly, the appellants claim Succession Certificate for all the amounts exclusively for themselves. Respondents herein, who were respondents no.2 to 4 in the original petition (General Public being respondent no.1), contested the claim of the appellants herein. It was pleaded that respondents are also legal heirs of Gurkirpal Singh. Payment of Rs.1,10,000/- by Gurkirpal Singh to mother of respondents no.2 and 3 was admitted, but it was denied that it was towards full and final settlement of their claim. It was denied that petitioners-appellants are the only legal heirs of the deceased. On the R. S. A. No. 3903 of 2010 3 other hand, appellants as well as respondents are legal heirs of the deceased. Various other pleas were also raised. Learned Civil Judge (Junior Division), Chandigarh, vide judgment dated 04.12.2008, held that appellants as well as respondents being legal heirs of the deceased are entitled to Succession Certificate to the extent of 1/5th share each regarding the amounts in question, subject to furnishing of indemnity bond in the sum of Rs.7,00,000/-. Said judgment of the trial court was not challenged by the appellants herein by filing first appeal. Only Pritam Kaur – respondent no.1 herein filed first appeal against judgment of the trial court. Learned Additional District Judge, Chandigarh, vide judgment and decree dated 06.08.2010, dismissed the said appeal except to the extent of modifying the judgment of the trial court that the parties shall be at liberty to furnish indemnity bonds separately qua their proportionate shares, instead of furnishing a joint indemnity bond. Instant second appeal has been preferred by the appellants, who were petitioners in original petition under Section 372 of the Act. I have heard learned counsel for the appellants and perused the case file. The instant second appeal is not maintainable for two reasons. Firstly, no second appeal lies in petition under Section 372 of the Act. Section 384 of the Act provides for first appeal only. Learned counsel for the appellant, in spite of pointed inquiry, is unable to refer to any provision R. S. A. No. 3903 of 2010 4 in the Act for filing of second appeal. Secondly, the appellants herein did not challenge the judgment of the trial court by filing first appeal. Consequently, the appellants straightway cannot file the second appeal. In addition to the aforesaid, even on merits, the appeal cannot be accepted. Admittedly, respondents no.2 and 3 herein are minor daughter and minor son respectively of the deceased Gurkirpal Singh from his first wife Harbans Kaur. Consequently, respondents no.2 and 3 are also legal heirs of the deceased. The contention on behalf of the appellants, that entire claim of respondents no.2 and 3 herein stood satisfied by payment of Rs.1,10,000/- when Gurkirpal Singh and his first wife Harbans Kaur got their marriage dissolved by divorce by mutual consent, cannot be accepted. Even according to compromise deed Annexure A-2 effected by Gurkirpal Singh and Harbans Kaur, the amount of Rs.1,10,000/- was paid for full and final settlement of maintenance of children i.e. respondents no.2 and 3 herein and other things, if payable by the first party i.e. Gurkirpal Singh towards the second party i.e. Harbans Kaur. Said clause (c) in the Compromise Deed (Annexure A-2), therefore, depicts that the amount of Rs.1,10,000/- was paid only towards maintenance of respondents no.2 and 3 herein, but they were not disinherited from the estate of Gurkirpal Singh in the event of his death. Respondents no.2 and 3 herein being daughter and son respectively of the deceased are among his Class-I legal heirs as per Hindu Succession Act, 1956 and are, therefore, entitled to inherit the estate R. S. A. No. 3903 of 2010 5 of the deceased in equal shares along with other Class-I heirs i.e. appellants and respondent no.1. There is, therefore, no legal infirmity in the judgments of the courts below holding all the five heirs i.e. appellants and respondents herein to be equally entitled to Succession Certificate i.e. 1/5th share each. Learned counsel for the appellants contended that suit filed by Pritam Kaur – respondent no.1 (mother of the deceased) claiming 1/3rd share in the retiral benefits of the deceased stands dismissed by the trial court, first appellate court and by this Court in second appeal, vide order dated

05.04.2010 in R. S. A. No.1686 of 2008 titled Pritam Kaur vs. State of Punjab and others. It was concluded in that case that parents of the deceased were not dependent upon him. However, the said judgment would not bar the rights of respondents no.2 and 3 herein. On the basis of said judgment, respondent no.1 may not be entitled to pension, but respondent no.1 being Class-I heir of the deceased, is entitled to her share in the assets of the deceased. For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine. October 04, 2010 monika ( L. N. MITTAL ) JUDGE