Decided on November 14,1968

Choteykhan Appellant
Zeenat Respondents


BHARGAVA, J. - (1.)THIS appeal by Chotey Khan is duected against the Order 30th January, 1967, of the learned District Judge, Ajmer rejecting appellant's application for grant of succession certificate in respect of the amount of provident fund and gratuity of Khudabux deceased who was an employee in the Railway Loco Workshop, Ajmer.
(2.)THE appellant on the death of Khudabux on 9.5.1963, claiming to be his brother applied to the District Judge. Ajmer for grant of a succession certificate. It was stated by the appellant that Khudabux deceased had married Mst. Zeenat who is the respondent in this Court, but subsequently divorced her by a written document on 12th January, 1963, and as such is not eligible for the provident fund and gratuity. His application was opposed by the respondent and she denied that she was ever divorced by Khudabux. It was further stated that the respondent both as a widow and a nominee was entitled to receive the provident fund and gratuity from the railway and that the appellant had no right to the said amount. The learned District Judge framed the following issues:
1. Whether the petitioner is entitled to a succession certificate in respect of the debt shown in para 6 of the petition? 2. Whether Mst. Zeenat alias Chisi is the divorced wife of late Khudabux? 3. Relief.

In support of issue No. 2 six witnesses were examined on behalf of the appellant and in rebuttal respondent gave her own statement.

(3.)THE learned District Judge after a consideration of that evidence held that the divorce of Mst. Zeeat by Khudabux was not proved. Having come to this finding he rejected the appellant's application holding that he was not entitled to succession certificate in the presence of the wife of the deceased i.e., the respondent. The appellant has now come in appeal and the contentions of the learned Counsel are:
1.That the learned District Judge has not correctly appreciated the evidence and has therefore, arrived at a wrong conclusion that the respondent had not been divorced by Khudabux. 2. That even if the respondent is not proved to have been divorced, she is only entitled to receive the provident fund from the railway as nominee vide Section 5(1) of the Provident Fund Act, 1925, but is not entitled to appropriate it to the exclusion of the appellant who also, according to Mohammedan Law has a share in the assets of the deceased.


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