INDIAN SUCCESSION ACT,-sec.373- The question whether the petitioner No.1 took divorce from late Latchaiah or not ?, the question whether the late Latchaiah had married respondent No.2 legally or not ?, cannot be decided in this petition. Without declaration of the status of petitioner No.1 as wife of late Latchaiah, the relief sought by the petitioner cannot be ordered. The scope of this petition is limited and restricted for issuance of succession certificate and this scope cannot be extended to declare and decide the marital status of the parties. In the circumstances, the petitioners failed to make out their case.”= The Court below, vide impugned order, dismissed the petition.= Section 373 of the Indian Succession Act, 1925 deals with procedure on application for succession certificate. Sub-section (3) thereof reads thus: “The Judge cannot decide the right to the certificate without determining the questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereof.” Therefore, basing on the evidence available on record, court has to decide prima facie the best title for the purpose of releasing the policy amount by Life Insurance Corporation of India.= As seen from the impugned order, it is clear that the trial court has totally ignored Section 373 (3) of the Indian Succession Act, 1925 so as to determine whether the appellants/petitioners are entitled to issuance of succession certificate basing on the evidence available on record. The first appellant claims that she is legally wedded wife of the late Latchaiah, but the case of the second respondent is that she gave divorce to late Latchaiah and later her marriage was performed with the deceased Latchaiah. The Court below passed the order without adverting to the evidence and the documents produced by the parties.

CMA 1249 / 2008

CMASR 42838 / 2008

PETITIONER RESPONDENT CHILUKURI SHARADA AND ANOTHER   VS THE LIC OF INDIA KHAMMAM AND ANOTHER PET.ADV. : M/S CHINNA BABA,SRIKALA K RESP.ADV. : RAGHU SUBJECT: INDIAN SUCCESSION ACT DISTRICT:  KHAMMAM

THE HON’BLE SRI JUSTICE K.C.BHANU

CIVIL MISCELLANEOUS APPEAL No. 1249 of 2008

JUDGMENT:

1.       This appeal is directed against the Order dated 22.08.2008 in S.O.P. No.19 of 2005 on the file of the Principal Junior Civil Judge, Khammam, whereunder and whereby the petition filed by the appellants/petitioners for issuance of succession certificate in their favour authorizing them to receive the amount covered by LIC policy, was dismissed.

2.       Heard both sides.

3.       The brief facts are that the appellants herein filed the petition before the court below for grant of succession certificate to receive amount in respect of LIC policy no.681539606 obtained by one late Latchaiah, claiming that they are his wife and son respectively.  But, the first respondent/LIC did not pay the amount stating that name of the second respondent has been recorded as nominee in respect of the policy.  It is the case of the second respondent that she is the legally wedded wife of late Latchaiah and the first petitioner is his divorcee, and that she lived with the deceased till the date of his death and they were blessed with children by name Harish and Raju.   

 The Court below, vide impugned order, dismissed the petition.

4.       The relevant portion of the order reads thus:

“There are rival contentions in between the petitioner No.1 and respondent No.2 about their status with late Latchaiah.  

The question 

whether the petitioner No.1 took divorce from late Latchaiah or not ?, 

the question 

whether the late Latchaiah had married respondent No.2 legally or not ?, 

cannot be decided in this petition. Without declaration of the status of petitioner No.1 as wife of late Latchaiah, the relief sought by the petitioner cannot be ordered.  

The scope of this petition is limited and restricted for issuance of succession certificate and this scope cannot be extended to declare and decide the marital status of the parties.  In the circumstances, the petitioners failed to make out their case.”

5.          Section 373 of the Indian Succession Act, 1925 deals with procedure on application for succession certificate.  Sub-section (3) thereof reads thus:

“The Judge cannot decide the right to the certificate without determining the questions of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereof.”

         

          Therefore, basing on the evidence available on record, court has to decide prima facie the best title for the purpose of releasing the policy amount by Life Insurance Corporation of India.

6.       As seen from the impugned order, it is clear that the trial court has totally ignored Section 373 (3) of the Indian Succession Act, 1925 so as to determine whether the appellants/petitioners are entitled to issuance of succession certificate basing on the evidence available on record. 

The first appellant claims that she is legally wedded wife of the late Latchaiah, but the case of the second respondent is that she gave divorce to late Latchaiah and later her marriage was performed with the deceased Latchaiah.   

The Court below passed the order without adverting to the evidence and the documents produced by the parties. 

7.  Therefore, the impugned order is set aside and the matter is remanded to the trial court with a direction to decide the point basing on the evidence available on record and pass appropriate orders after giving reasonable opportunity to both the parties.  

8.       The learned counsel for the first respondent/LIC stated that policy amount has been deposited with the court.  Therefore, it is made clear that release of the amount is subject to the orders that may be passed by the Court below.  

9.          Accordingly, the Civil Miscellaneous Appeal is allowed.   No costs.

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(K.C.Bhanu, J.)

12.8.2011

DRK

THE HON’BLE SRI JUSTICE K.C.BHANU

CIVIL MISCELLANEOUS APPEAL No. 1249 of 2008

12.8.2011