JAS RAJ CHOPRA, J. - (1.) THIS Misc. appeal arises out of the judgment of the learned District Judge, Udaipur, dated 16. 1. 84, whereby the learned District Judge has accepted the application for grant of Succession Certificate, filed by respondent Smt. Onkar Bai & her daughters Smt. Sushila Devi and Smt. Kailash Devi and rejected the objection petition filed by Smt. Ramsukhi Bai. Smt. Ramsukhi Bai has therefore filed this appeal.
(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are that deceased Arjun Lal Badapaliwal, married Smt. Onkar Bai and out of that wedlock Onkar Bai gave birth to 2 daughters i. e. Smt. Sushila Devi and Smt. Kailash Devi. Smt. Ramsukhi Bai has admitted this position. She has, however, stated that she has contracted a Nata marriage with late Shri Arjunlal, almost 30 years prior to his death and, therefore, she is also his legally wedded wife. It is not disputed that Shri Arjunlal Badapaliwal has deposited a sum of Rs. 10,500/- with the Bank of Rajasthan Ltd. Clock Tower Branch, Udaipur, and obtained a fixed deposit receipt on 20. 4. 76, bearing No. 326191/ 195. The case of the respondents is that they being the legal heirs of late Shri Arjunlal, they were entitled to receive the amount of this fixed deposit receipt, whereas Smt. Ramsukhi Bai has claimed that she, being the Natayat wife of late Shri Arjunlal and being nominated by him to receive this amount, succession certificate should not be granted in favour of the respondents and she has further claimed that Ex. D. W. l (A. l) nomination letter dated 14. 7. 76, executed in her favour amounts to an assignment and even on that account she is entitled to receive this amount. Initially she tiled an application for grant of probate on the basis of this document dated 147. 76, treating it to be a will of late Shri Arjunlal. That application for grant of probate was accepted by the learned District Judge, but on appeal, this contention of the appellant was rejected by this Court in S. B. C. Misc. First Appeal No. 121/78 decided by Hon'ble M. C. Jain, J. , on August 31, 1979. As her request for grant of probate was rejected, she claimed that she being the nominee, she is entitled to recover this amount on the basis of this document dated 14. 7. 76 and, therefore, succession certificate should not be issued in favour of the respondents-petitioners. No plea of assignment was taken by her in her written reply i. e. the objection petition, but in the memo of appeal this contention was raised that this letter may be treated even as an assignment. I have heard Mr. Suresh Shreemali for the appellant and Shri B. L. Maheshwari for the respondents, and have meticulously gone through the record. It is not disputed before me that Onkar Bai is the legally wedded wife of late Shri Arjunlal and Smt. Sushila Devi and Smt. Kailash Devi are her daughters. Smt. Ramsukhi Bai, when she entered the witness box as D. W. 1, has admitted this fact. She has, however, claimed that she has, however, contracted a Nata marriage with late Shri Arjunlal. It has been held by the learned District Judge that she has failed to prove this fact. Firstly, she has produced no independent witness to prove that she has contracted a nata-marriage with late Shri Arjunlal. She has claimed in her cross-examination that there is a custom amongst the Brhamins to contract a Nata-marriage. That caste custom has not been got proved by adducing any evidence. Rather no examination has been given, as to who amongst the Brahmins have contracted Nata-marriage. When she was asked as to what formalities were undergone at the time of the Nata-marriage, she has stated that no such formalities were undergone but later she said that they have been undergone. But she failed to state as to what were those formalities which have been undergone on the basis of which she may claim that her Nata-marriage with late Shri Arjunlal became complete. Of course she has stated that 4-5 ladies had taken their meals and they sung songs but they are not religious formalities. She has admitted that she belongs to Rajput caste. The learned District Judge has observed that even in the document dated 14. 7. 76, Smt. Ramsukhi Bai has been described as the daughter of Gottuji and not as the Natayat wife of late Shri Arjunlal. If Shri Arjun Lal has accepted her as his wife, on account of the Natamarriage performed by him, he must have mentioned this fact in Ex. D. W. l (A. l ). In this document he has only recited that she was offering certain services to him. He has nowhere admitted that she was living with him as his Natayatwife, for the past about 30 years.
(3.) P. W. 1 Smt. Onkar Bai has categorically stated that no such Nata-marriage was ever performed by Arjunlal with Smt. Ramsukhi Bai. Taking an overall view of the evidence on record, I agree with the learned District Judge that Smt. Ramsukhi Bai has not been able to prove that she is the legally wedded wife of late Shri Arjunlal. It is a settled position of law that once a man dies intestate, his succession immediately opens and the properties that vest in the deceased can be claimed on the basis of succession by his or her legal heirs. Undoubtedly in this case, the petitioners, Smt. Onkar Bai, Smt. Sushila Devi and Smt Kailash Devi have proved that they are the only legal heirs of late Shri Arjunlal and, therefore, they are entitled to succeed to the movable and immovable properties belonging to late Shri Arjunlal Badapaliwal. Mr. Shreemali, appearing for Smt. Ramsukhi Bai has contended that in the earlier proceedings which are initiated by Smt. Ramsukhi Bai, for grant of probate, this Court has observed that Ex. D. W. l (A. l) was executed by late Shri Arjunlal in his own hand and by this writing he has nominated Smt. Ramsukhi Bai to receive the amount of this fixed deposit Receipt Exa2. When this has been held by this Court in an earlier judgment, it should be held that she is entitled to recover this amount, from the bank on account of the nomination made in her favour and in the alternative it was submitted that the document Ex. DWl (A. l) be treated as an assignment of this fixed deposit receipt made by late Shri Arjunlal, in favour of Smt. Ramsukhi Bai. Mr. Shreemali has contended that in this summary proceedings if Smt. Ramsukhi Bai has proved that she is the nominee as regards the recovery of this amount of the fixed deposit receipt Ex A. 2, she alone can give the valid charge of the receipt to the bank and, therefore, succession certificate should be granted in her favour rather than in favour of the petitioners. In this respect, he placed reliance on a decision of this Court in Chotey Khan vs. Mst. Zeenat (1 ). This was a case of nomination made regarding the Provident Fund Account and the court held that after the death of the subscriber the nominee alone becomes entitled to the exclusion of all other persons, to receive such sum or part thereof; as the case may be, unless the nomination is varies or cancelled, or it becomes invalid by reason of the happening of some contingency specified therein. In this respect, reference was made to S. 2 (c), 4 and 5 (1) of the Provident Funds Act, i. e. the Act No. XIX of 1925 and it was further held that this provision overrides the provisions contained in other enactments as also any other disposition, whether it is testamentary or otherwise. ;