Urmila Sharma vs General Public and others

Rajesh Bindal, J.—Challenge in the present petition is to the order dated May 17, 2011 passed by the learned court below whereby the appeal filed by the petitioner against the judgment of the learned trial court dated 21.3.2009 in a petition u/s 372 of the Indian Succession Act for issuance of succession certificate, was dismissed as time barred.

Learned counsel for the petitioner submitted that against the judgment of the trial court dated 21.3.2009, the petitioner filed appeal before the learned court below on July 20, 2009. Delay occurred on account of the fact that the petitioner was not informed about the order passed by the trial court by her counsel. He further submitted that deceased-Rajinder Kumar Sharma had in fact, married the petitioner during the subsistence of his first marriage. The marriage was solemnized in the year 1977. The petitioner was in knowledge of the first marriage of deceased-Rajinder Kumar Sharma with Rukmani Devi. No child was born out of the alleged wedlock of deceased-Rajinder Kumar Sharma with the petitioner. However, from the first marriage with Rukmani Devi, the deceased was having four children, namely, two daughters and two sons. Two daughters have already been married. One son is living with the first wife Rukmani Devi whereas one son was living with the petitioner and presently also he is living with her. In terms of the provisions of Indian Successions Act, the petitioner having married the deceased-Rajinder Kumar Sharma during the subsistence of his first marriage did not have any right of succession of his property. However, after dismissal of the petition qua the petitioner by the trial court, the petitioner came in possession of a Will executed by the deceased on 14.4.2002, on the basis of which, she was the only person entitled to succeed his property. An application for leading additional evidence was also filed along with the appeal, however, the appeal was dismissed on account of delay. Merits of the case were not considered by the learned court below.

After hearing learned counsel for the petitioner, I do not find any merit in the present petition. It is an admitted fact that the petitioner had married the deceased-Rajinder Kumar Sharma having knowledge about his earlier marriage and the children born out of that wedlock. From the first wedlock, two daughters and two sons were born. No child was born out of the marriage of the petitioner with deceased-Rajinder Kumar Sharma. One son born out of first wedlock of deceased Rajinder Kumar Sharma with Rukmani Devi is living with the petitioner. In the petition filed for succession before the trial court by the petitioner and one son born out of the first wedlock of deceased-Rajinder Kumar Sharma with Rukmani Devi, learned trial court rightly held that the terminal benefits of the deceased shall be shared equally by plaintiff No.1 and defendants No. 2 to 5 in equal shares. Considering the fact that the marriage of the petitioner with deceased-Rajinder Kumar Sharma being not legal, she was not entitled to inherit the estate left by the deceased. The appeal is admittedly belated. The case sought to be set up is that the petitioner was not informed by her counsel about the decision of the case, however, this fact was not even mentioned by the petitioner in the application filed seeking condonation of delay in filing the appeal. Judgment of trial court is dated 21.3.2009, even the certified copy thereof was applied on 13.6.2009 and after the same was prepared on 19.6.2009, it was received by the petitioner only on 17.7.2009 and the appeal was filed on 20.7.2009. Learned trial court found that delay was not properly explained. Further the case sought to be set up by the petitioner in appeal was that on the basis of alleged Will executed by the deceased on 14.4.2002, the petitioner was entitled to inherit the entire estate left by the deceased. However, there is no plausible explanation available as to from where the aforesaid Will came in possession of the petitioner more than seven years after the death of Rajinder Kumar Sharma. Still if the facts of the case are considered, the learned court below divided the estate of the deceased, namely, terminal benefits of the deceased equally amongst the first widow and the children born to her. One of the sons born out of first marriage, is living with the petitioner and he has also been granted equal share in the terminal benefits of the deceased, which was to be shared equally between the legal representatives.

Considering the aforesaid facts, in my opinion, no case for interference is made out.

The petition is dismissed.