Smt. Mamta Devi and Others vs Sanjay Singh Yadav

Rakesh Tiwari, J.—We have heard Sri Sudhakar Yadav, counsel for the appellants on the question of delay condonation.

This FAFO is reported to be beyond time by 42 days. Having gone through the affidavit filed in support of delay condonation application, we are of the view that the cause shown for delay in filing appeal is sufficient. Delay is condoned. Delay condonation application is, accordingly, allowed.

Heard learned counsel for the appellants on merits of the case.

This FAFO has been filed challenging the validity and correctness of the judgment and order dated 23.12.2012 passed by Civil Judge (S.D.), Shahjahanpur in Suit No. 45 of 2012: Sanjay Singh Yadav v. Smt. Mamta Devi.

Brief facts of the case are that late Babu Ram Yadav who was working as Village Development Officer in Social Welfare Department, Shahjahanpur, died on 13.8.2010; that his first marriage was solemnized with Smt. Sudha. He had one son namely Sanjai Singh Yadav from the aforesaid wedlock. After death of his first wife, Babu Ram Yadav solemnized his second marriage with Smt. Mamta Devi, appellant No. 1 in the present appeal. From this wedlock five children were born who have been arrayed as respondent Nos. 2 to 6 in this appeal. Babu Ram Yadav died during service period on 13.8.2010 leaving behind him Sanjai Singh Yadav (son) from first wedlock, Smt. Mamta Devi his second wife and five sons and daughters i.e. respondent Nos. 2 to 6 as stated above.

Respondent-Sanjai Singh Yadav filed civil suit No. 45 of 2012: Sanjai Singh Yadav v. Mamta Devi and others, before Civil Judge (S.D.), Shahjahanpur on 6.10.2012 regarding issuance of succession certificate claiming his right on the basis of WILL dated 9.7.2010. Objections were filed by appellant No. 1 on her own behalf and her daughter and sons. By the impugned judgment dated 23.12.2012, 1/6th part of all retiral benefits of late Babu Ram Yadav were directed to be paid to his minor children namely Swati Devi (16 years), Vijai Yadav (14 years), Sonam (13 years), Bhanu Singh (11 years) and Nirbhai (09 years) under the guardianship of their mother Smt. Mamta Devi, and 1/6 remaining part was directed to be paid to Sanjai Singh Yadav.

The judgment dated 23.12.2012 was challenged by the appellant in Civil Misc. Writ Petition No. 15171 of 2013. The writ petition was dismissed on 22.3.2013 by this Court on the ground of alternative remedy with liberty to file appeal. Consequently, the appellants have filed this appeal.

The only contention of learned counsel for the appellants is that forged WILL is the basis of claim by Sanjai Singh Yadav and the Court below has passed the order impugned without hearing the appellants. It is argued that Babu Ram Yadav husband of appellant No. 1 had mentioned her name in his service book as nominee, but the Court below has not considered this fact while passing the impugned order and in this view of the matter, the order impugned is liable to be set aside.

We have perused the impugned award as well as claim set up by Sanjai Singh Yadav son of late Babu Ram. It appears from the WILL that Babu Ram father of Sanjai Singh Yadav had built his property in his life time. It also appears from the WILL that appellant No. 1, his second wife, pressurising her husband on behest of her father and brother purchased a land and constructed the shops on it which was got transferred in her name subsequently.

It is averred in the WILL that Mamta Devi, appellant No. 1, the second wife of Babu Ram Yadav was not looking after her step son Sanjai Singh Yadav who was born from wedlock of Babu Ram Yadav with his first wife and as such he had given his 1/3rd share i.e. part of house to live in from his ancestral property. As regards his agricultural land, retiral benefits and other properties are concerned, he has distributed the same to Sanjai Singh Yadav son from his first wife and to all the sons and daughters of his second wife equally to 1/6th share of each in it. Relevant portion of WILL is reproduced below:

As regards the impugned order of the Court below is concerned, after service of notice on the respondents concerned, the same was passed as under:

Since the appellant-respondent had appeared before the Court below and had filed their objections and had contested the case, the contention of learned counsel for the appellant that appellant was not heard is incorrect. The WILL executed by Babu Ram appears to be balanced one as second wife was transferred a house and shops in his life time by her husband from which income she can survive with her family. It appears that in order to balance the WILL, he gave Sanjai Singh Yadav his 1/3rd share in the ancestral house. In the circumstances, it seems that maker of WILL deed Sri Babu Ram Yadav had rightly distributed his property not only in favour of Sanjai Singh Yadav, but everyone and had taken care of each and every members of his family. Had the WILL been forged then certainly Sanjai Singh Yadav had taken whole of the property or share which is not in the present case.

For all the reasons stated above, we are of the considered view that the appeal is liable to be dismissed and is, accordingly, dismissed. No order as to costs.