1. The instant Misc. Appeal has been filed under Section 384 of the Indian Succession Act against the order dated 28.01.2020 passed by learned Principal District Judge, Ramgarh, in Succession Case No.43 of 2011 by which 75% of post- death benefits of Late Zaki Anwar Khan have been allowed in favour of Salma Khatoon and 25% has been allowed in favour of Saidus Saba Salma (appellant), who is wife of the deceased [Late Zaki Anwar Khan].

2. As per the case of the petitioner/ applicant before the learned Court below that she was married to Zaki Anwar Khan (deceased) on 21.09.2000 who died in harness while serving in Railways on 25.09.2010.

3. The petitioner moved the Court below for grant of Succession Certificate under Section 372 of the Indian Succession Act, in which the mother [Salma Khatoon] of the deceased and his two sisters, namely, Sakra Praween and Ambari Khatoon were impleaded as defendant Nos.1 to 3.

4. Defendant No.2 [Sakra Praween] did not appear to contest the case. However, defendant Nos.1 and 3 contested the grant of succession Certificate. It was, inter-alia, pleaded on their behalf that Smt. Sana Khatoon who was also the wife of Late Zaki Anwar Khan (deceased) and was not impleaded in the suit. It was further pleaded that the applicant/ petitioner was not the legally married wife of Late Zaki Anwar Khan.

5. Vide order dated 05.09.2013, Sana Khatoon and her son from the deceased [Zaki Anwar Khan], namely, Imran Khan were impleaded as defendant Nos.4 and 5.

6. Altogether nine witnesses were examined on behalf of the plaintiff and Ext.1 to Ext.16 were adduced into evidence which included original Nikahnama, Letter issued by the Railways for producing succession certificate, family list etc.

7. The defendants examined three witnesses and Ext. A to Ext. H were adduced into evidence which included 10th Class Certificate of Md. Imran Khan issued by CBSE. The certified copy of the order dated 25.07.2012 passed in Succession Case No. 177/2011 by the Court of Judicial Commissioner, Ranchi, Railway pass of Zakir Anwar Khan etc.

8. Learned Trial Court recorded a finding that the petitioner as well as defendant No.4 (Sana Khatoon) were wives of the deceased- Zaki Anwar Khan and it was also proved that Md. Imran Khan was the son of Zaki Anwar Khan and was born from Sana Khatoon. On the basis of the said finding, the impugned order was passed.

9. It is argued by learned Sr. counsel for the appellant that under a design and some oblique motive, Sakra Praween [sister of the deceased] has been presented as Sana Khatoon in order to get the share from the post-death of the deceased. This was for the reason that the mortal relationship between the petitioner and the deceased was quite estranged as criminal case under section 498 A of the IPC was also filed. Due to this, Sakra Praween was set up as the wife of the deceased, so as to deprive her of her lawful claim flowing from marital relationship.

10. In order to buttress his argument, learned Sr. counsel has placed reliance on the testimony of P.W.1 wherein he has stated that Zaki Anwar Khan had married only the appellant- Saidus Saba Salma and had died issueless leaving behind his mother [Salma Khatoon] as well as sisters, Sakra Praween and Ambari Khatoon. He has denied that the deceased had ever married to any Sana Khatoon. In Para-8, he has stated in no uncertain term that Sana Khatoon is none else but Sakra Praween and her son was Imran Khan.

11. It is argued that he is the own maternal-uncle of the deceased, aged 70 years, therefore, there was no reason on his part to submit false statement. He has denied suggestion in Para-4 of his cross-examination that the deceased was married to Sana Khatoon on 24.06.1987 and further has deposed in Para-5 that he had no information regarding the said marriage. However, in Para-8 he has admitted that on one occasion he had entered the name of his sister in the Railway pass as his wife.

12. It is contended by the learned Sr. counsel appearing on behalf of the appellant that since both Sakra Praween and Sana Khatoon were one and the same person, therefore, at no point of time Sakra Praween appeared before the Court to dispel the contention of the appellant that they were two individuals and not one.

13. Mother of Sakra Praween was examined in the Court as D.W.-2 and the admitted case of the opposite parties is that Sakra Praween was the sister of the deceased, but quite interestingly, Ambari Khatoon (D.W.-1) in para- 17 of the cross-examination, has deposed that Sakra Praween was her sister and was married to one Firoz Khan and her son was Md. Belal Khan. However, she has stated that she was not in a position to get her examined. In para-23, she has deposed that she is not acquainted with Saidus Saba Salma (the present appellant). In para-28 she has denied the suggestion that Mohin Khan and Imran Khan are the sons of Sakra and Firoz Khan. D.W.2 (Salma Khatoon) is the mother of the deceased Zaki Anwar Khan. In para-14 she has deposed that she does not know Saidus Saba Salma-appellant. However, in para-15 she has admitted that Saidus Saba Salma-appellant had lodged a case in which she had gone to jail. She has also stated that in para-24 she is not in position to get Sakra Praween examined and she cannot say where she is at present. She has admitted in para-18 that Enamul Khan was her brother. She has also expressed her inability in para-24 to get Sakra Praween examined.

14. Sana Khatoon is examined as D.W.-3. In para-22 of her cross- examination, she has feigned ignorance about Saidus Saba Salma, however in para-23 she has admitted that she had impleaded Saidus Saba Salma in a case lodged at Ranchi. It is also stated in para-23 that she has impleaded Saidus Saba Salma in the Succession Case as the second wife of her husband. She has also expressed her inability in para-27 to produce Sakra Praween as witness in the case and has also stated that she was not knowing where she was presently residing. She has denied the suggestion that she was Sakra Praween and she was sister of Zaki Anwar Khan.

15. Learned counsel appearing on behalf of the respondents is unable to explain as to why the witness No. 2 who happens to be the mother of the Sakra Praween does not know her whereabout and at no point of time she was ever produced before the Court.

16. Having heard the submissions advanced on behalf of both sides and on perusal of materials on record, it is evident that all together nine witnesses were examined on behalf of the applicant which included independent witness like the maternal uncle PW1. All these witnesses have consistently stated that it was Sakra Praween who had been set up as the wife of the deceased as Sana Khatoon to claim the post death benefit of the deceased, who was an employee of the railways. It has also come in their testimony that false entry was made in the railway pass showing Sakra Khatoon (Praween) as Sana Khatoon wife of the deceased. Beyond this, there is no official record to show that Sana Khatoon was the wife of the deceased.

17. Opposite party/respondents have examined only three witnesses and their testimony is riddled with outright falsehood that it is difficult to place reliance on their account. DW2 Salma Khatoon is the mother of the deceased and yet she expresses complete ignorance about the whereabout of her daughter, Sakra Khatoon (Praween). She has further deposed that she cannot get her daughter Sakra Khatoon (Praween) examined in the court. Very surprisingly, she states in para-14 that she does not know the present appellant, however, in subsequent paragraph she admits the case had been lodged against her by the appellant. Her testimony therefore, is not at all reliable and cannot be accepted.

18. So is the case with Ambari Khatoon (DW-1) who is none else, but the sister of Sakra Khatoon (Praween). She has also expressed her complete ignorance about the whereabouts of Sakra Khatoon (Praween) and it’s not in a position to get her examined in the present case. In para 22 she has deposed that she along with other family members had been arrested in a police case lodged in Barachatti. This case was the one which was launched by the present appellant, yet the witness refuses to know her. Under the circumstance, this witness is also not reliable.

19. Sakra Praween the sister of the deceased, therefore appears to be an elusive character and never appeared before the court. Her mother and sister, as discussed above have feigned ignorance about her whereabouts and have expressly stated that they are not in a position to produce her for evidence in the court, although she married in Ranchi as per the deposition.

20. This Court is of the view that this is a fit case to draw an adverse inference under Section 114 of the Evidence Act that Sakra Praween being the sister of the deceased and she was deliberately not produced before the Court. Further admitted fact of the case is that Sakra Praween was married to Firoz Khan, resident of Ranchi and the case proceeded at Ramgarh which is at a distance of around 45KM, but at no stage either Firoz Khan step into the witness box or Sakra Praween appears to demolish the case of the applicant that they were two different persons.

21. The humidity effect of evidence led on behalf of the applicant/Appellant leads to an irresistible conclusion that Sakra Praween was set up as Sana Khatoon to deprive the legal entitlement of the present Appellant, who was on litigating term with her deceased husband and his family members.

22. Under the aforesaid facts and circumstance, the impugned order is set aside.

23. Appellant being legally married wife of the deceased was entitled to 75% of the debt and securities, including the post death benefits due in favour of her deceased husband Zaki Anwar Khan, and his mother Salma Khatoon was entitled to 25%.

                  Miscellaneous Appeal is accordingly allowed.

                  Pending I.A., if any, stands disposed of.