Smti.Hadisa Hanif Alias Hadisa Khatoon v. Maseena Bibi

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** FMAT/6/2024 Smti. Hadisa Hanif Alias Hadisa Khatoon Vs.

Maseena Bibi Mr. KMB Jayapal ... for the appellant Ms. A.S.Zinu ... for the respondent November 14, 2024 [SR] Item no. 1 1.

The instant appeal is directed against the judgment and order dated 4th June, 2024 passed by the District Delegate in Misc. Judicial Case No. 7/2021.

2.

There were two petitioners in the Family Court. The second wife of the deceased and the son born out of the relations of the deceased and second wife. They applied for a succession certificate before the learned District Judge, Port Blair of the service dues of the deceased Hanif Bux. 3.

The learned District Judge relegated the matter to the District Delegate, who took up the proceedings and issued citation. The objector was first wife Maseena Bibi. 4.

Issues were framed and evidence were led by both sides. 5.

The District Delegate, after analyzing the evidence, on record issued the succession certificate in favour of the son namely the appellant No. 2 Tanveer Hanif son of the deceased from the alleged second wife and the respondent, the lawfully married first wife.

6.

Mr. Jayapal, learned counsel for the appellant, second wife would argue that, being a lawful second wife she was equally entitled to the terminal service benefits of the deceased alongwith her son. He therefore submits that the District Delegate has committed error by ignoring the evidence and law that she was the lawfully married wife of the deceased Hanif Bux. It is further submitted that the Nikhanama and the marriage certificate were brought on record and that have been ignored by the Court.

7.

On the jurisdiction of the District Delegate, reliance is placed on Section 372 of the Indian Succession Act where it is prescribed that an application for succession certificate can only be made before the learned District Judge and the District Delegate does not have the jurisdiction or authority to deal with such application.

8.

This Court however, notices Section 388 of the Act of 1925. By reason of the said section, the jurisdiction of the District Court for the purpose of the Act can be invested in a court subordinate to the District Judge. By notification of the official gazette in any court of any of any inferior grade. 9.

Ms. Zinu, learned counsel appearing for the respondent places a Notification dated 9th March, 2021 issued by the office of the District and Sessions Judge, A&N Islands, whereby it has been specified that in respect of an application for grant of succession certificate the District Delegate appointed under Section 388 (1) of the Act would enjoy concurrent jurisdiction with the District Judge and can exercise all powers of the District Judge therefor.

10.

In view of the above, the jurisdictional issue raised by Mr. Jayapal is no longer sustainable and must fail. 11.

On the argument raised on merits, it must be borne in mind that the subject matter of the application for succession certificate are the service and terminal dues of the deceased who was an employee of the Forest Department under the Andaman & Nicobar Administration.

12.

The said employee was governed under the CCS (CCA) Rules applicable to Central Government Employees. The said rules clearly prescribed that irrespective of the religion of government employee, he cannot marry for the second time during the subsistence of the first marriage. Admittedly the deceased got married to the appellant during the subsistence of the marriage with the respondent No. 1, objector. 13.

The argument of Mr. Jayapal is that the employer could at best take out department proceeding against the deceased but the deceased, being a Muslim, is entitled to have four wives as per Shariyat law at any point of time. This Court is unable to accept the argument.

14.

The very subject matters of the succession certificate are terminal dues payable by Central Government on account of the service of the deceased rendered to the Central Government. Disbursement of such dues have to be essentially governed by the CCS (CCA) Rules applicable to all Central Government employees. The CCS (CCS) Rules provide that only a lawfully wedded wife is entitled to be one of the legal heirs of the deceased.

15.

The appellant having married the deceased during the subsistence of the wedlock between the opposite party No. 1 and the deceased, is not entitled to any or part of portion of the service benefits of the deceased.

16.

In the above circumstances, the issue of succession certificate to the son Tanveer Hanif and to the first wife OP namely Maseena Bibi, by the District Delegate cannot be faulted. In fact the said Maseena Bibi, first wife, has fairly expressed no objection whatsoever to a portion of the service benefit being granted to Tanveer Hanif despite the fact that he is the child of the second wife.

17.

In view of the above, no interference is called for in the impugned judgment.

18.

FMAT/6/2024 is hereby dismissed.

19.

The Trial Court Record be sent back immediately. ( Rajasekhar Mantha, J. ) ( Partha Sarathi Sen, J. )