# Shivam Sonkar & Anr v. State of U.P. & Ors

- **Citation:** (2025) 9 ILRA 762
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-01
- **Case number:** Writ A No. 9332 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-sonkar-anr-v-state-of-u-p-ors-53981
- **Pages:** 15

## Headnote

Rajesh Kumar Tiwari, R.M. Saggi, Akhilesh
Kumar Ojha
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
763
Issues for consideration
Whether petitioner's claim of compassionate
appointment in the absence of a succession
certificate secured by him from the competent
Court, is maintainable or not?

Headnotes
A. Service Law - Hindu Marriage Act, 1955:
Section 5; Indian Succession Act, 1925:
Section 372 - A succession certificate and
a nomination stand at par, in that, that
both do not confer upon the person,
nominated or the holder of a certificate,
beneficial interest in the movables, money
or securities that he receives, held by third
parties on behalf of the deceased. The 5th
and 6th respondents would not at all be better
placed in establishing their claim of being the
only children of the deceased employee, entitled
to claim the post retiral benefits on the basis of
a succession certificate. The nominee or the
holder of a certificate may hold beneficial
interest too in the whole or a part that he
receives under it. But, the beneficial interest
must exist independent of the nomination or the
succession certificate. A fortiori, if a nomination
is already there in favour of the second
petitioner, there is little scope for parties to vie
for a succession certificate. (Para 19)

In this conspectus of facts and the law, the
second petitioner here, who is also the recorded
nominee in the deceased's service papers, is
entitled to receive all post retiral benefits,
including family pension on account of the
deceased employee's services. (Para 21)

B. The remark in the order impugned,
requiring the petitioner to obtain a
succession
certificate
as
a
condition
precedent to the consideration of his claim
for
compassionate
appointment,
is
misconceived. The General Manager could not
have committed a more grave error than think
that
the
first
petitioner's
claim
for
compassionate appointment would depend upon
the said petitioner securing a succession
certificate u/s 372 of the Succession Act.
Clearly, a succession certificate issued
under the Succession Act entitles the
holder of the certificate, as already
remarked,
to
collect
the
deceased's
outstandings, that is to say, debts and
securities in the hands of third parties. It
is not at all something, which has any
relation to the entitlement of a dependent
of
the
deceased
to
compassionate
appointment under the employers' policy
expressed in administrative circular or
rules. The opinion, held by the General
Manager, is the result of his utter ignorance of
the law and more than that, the ill-found
confidence amongst educated persons, who are
lay as distinguished from legal, in forming
opinions on purely legal matters without trained
advice. (Para 23)

The claim of the first petitioner is based on a
case about the deceased leaving behind a family
of five souls - a widow, two married daughters
and two dependent sons. There is nothing said
by the first petitioner about the deceased's first
wife or the two siblings of half blood.
Respondent Nos.5 and 6 have come forward
with a case, where they say, it is their mother,
who was the deceased's wife, whereas the first
petitioner's mother never had matrimonial
status. Once, the first petitioner's mother has
been held to be the deceased's wife, his claim
for a consideration of his candidature for
compassionate appointment cannot be held not
maintainable. (Para 22)

C. The denial of right to a child for
consideration under the compassionate
appointment scheme, whose mother's
marriage to his father is void u/s 11 of the
Act of 1955, has been held to be violative
of Article 14 of the Constitution by the
Supreme
Court.
Quite
apart
from
the
consideration that the first petitioner's mother
has been held to be the deceased Kripa
Shankar's wife, even if it is assumed that she
was not the lawfully wedded wife of the
deceased, as asserted by respondent Nos.5 and
6,
the
right
to
a
consideration
for
compassionate appointment cannot

## Text

_Characters 0–39,942 of 52,251. This is a partial read: ask again with offset=39942 for what follows._

762 INDIAN LAW REPORTS ALLAHABAD SERIES
as recorded in the service records and has
not prayed for any change in his date of
birth.

30. In the instant case, it is not that the
petitioner has changed his date of birth
after
having
entered
into
service,
inasmuch as admittedly the date of birth
recorded at the time of preparation of the
service book, i.e., in the year 2010, still
continues to remain the same as of date,
i.e., 01.12.1965. As already indicated,
there is no interpolation or manipulation in
the said date of birth. Thus, merely
because the respondents have issued an
erroneous seniority list and quarterly
progression report indicating the date of
birth of the petitioner as 15.01.1964, the
same would not resile from the date of
birth as recorded in the service book, i.e.,
01.12.1965.

31. So far as the argument of Sri
Rishabh
Tripathi,
learned
counsel
appearing for respondents No. 2 to 6, that
the entry into service of the petitioner as
recorded in the service book is 16.02.1980,
the said argument also merits to be rejected
and is rejected for there is a clear
discrepancy in the date of appointment
mentioned in the seniority list (16.02.1986)
vis-a-vis the service book (16.02.1980) and
moreover, in the instant case, the dispute
does not pertain to date of appointment of
the petitioner; rather pertains to date of
birth.

32. Keeping in view the aforesaid
discussion, the writ petition is allowed. The
order impugned dated 05.04.2024, a copy
of which is annexure-1 to the petition, is set
aside.

33. A writ of mandamus is issued,
commanding the respondents to continue
the petitioner in service on the basis of his
date of birth as 01.12.1965. As the
petitioner
has
been
retired
by
the
respondents with effect from 31.01.2024,
as such, the petitioner would also be
entitled for arrears of pay for the said
period of service and other consequential
benefit till his reinstatement in pursuance to
this order.

34. The arrears of pay are being
granted to the petitioner keeping in view
the law laid down by the Hon'ble Supreme
Court in the case of Union of India vs.
K.V. Jankiraman, 1991 AIR 2010,
wherein it has been held that in case of no
fault of the employee, if he is kept away
from work, the respondents cannot be
allowed to say that the principle of no work
no pay would be applicable.

35. Let the respondents comply with
this order within a period of six weeks from
the date of receipt of a certified copy of this
order.
----------
(2025) 9 ILRA 762
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 9332 of 2023

Shivam Sonkar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jai Shankar Pandey, Advocate

Counsel for the Respondents:
Rajesh Kumar Tiwari, R.M. Saggi, Akhilesh
Kumar Ojha
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
763
Issues for consideration
Whether petitioner's claim of compassionate
appointment in the absence of a succession
certificate secured by him from the competent
Court, is maintainable or not?

Headnotes
A. Service Law - Hindu Marriage Act, 1955:
Section 5; Indian Succession Act, 1925:
Section 372 - A succession certificate and
a nomination stand at par, in that, that
both do not confer upon the person,
nominated or the holder of a certificate,
beneficial interest in the movables, money
or securities that he receives, held by third
parties on behalf of the deceased. The 5th
and 6th respondents would not at all be better
placed in establishing their claim of being the
only children of the deceased employee, entitled
to claim the post retiral benefits on the basis of
a succession certificate. The nominee or the
holder of a certificate may hold beneficial
interest too in the whole or a part that he
receives under it. But, the beneficial interest
must exist independent of the nomination or the
succession certificate. A fortiori, if a nomination
is already there in favour of the second
petitioner, there is little scope for parties to vie
for a succession certificate. (Para 19)

In this conspectus of facts and the law, the
second petitioner here, who is also the recorded
nominee in the deceased's service papers, is
entitled to receive all post retiral benefits,
including family pension on account of the
deceased employee's services. (Para 21)

B. The remark in the order impugned,
requiring the petitioner to obtain a
succession
certificate
as
a
condition
precedent to the consideration of his claim
for
compassionate
appointment,
is
misconceived. The General Manager could not
have committed a more grave error than think
that
the
first
petitioner's
claim
for
compassionate appointment would depend upon
the said petitioner securing a succession
certificate u/s 372 of the Succession Act.
Clearly, a succession certificate issued
under the Succession Act entitles the
holder of the certificate, as already
remarked,
to
collect
the
deceased's
outstandings, that is to say, debts and
securities in the hands of third parties. It
is not at all something, which has any
relation to the entitlement of a dependent
of
the
deceased
to
compassionate
appointment under the employers' policy
expressed in administrative circular or
rules. The opinion, held by the General
Manager, is the result of his utter ignorance of
the law and more than that, the ill-found
confidence amongst educated persons, who are
lay as distinguished from legal, in forming
opinions on purely legal matters without trained
advice. (Para 23)

The claim of the first petitioner is based on a
case about the deceased leaving behind a family
of five souls - a widow, two married daughters
and two dependent sons. There is nothing said
by the first petitioner about the deceased's first
wife or the two siblings of half blood.
Respondent Nos.5 and 6 have come forward
with a case, where they say, it is their mother,
who was the deceased's wife, whereas the first
petitioner's mother never had matrimonial
status. Once, the first petitioner's mother has
been held to be the deceased's wife, his claim
for a consideration of his candidature for
compassionate appointment cannot be held not
maintainable. (Para 22)

C. The denial of right to a child for
consideration under the compassionate
appointment scheme, whose mother's
marriage to his father is void u/s 11 of the
Act of 1955, has been held to be violative
of Article 14 of the Constitution by the
Supreme
Court.
Quite
apart
from
the
consideration that the first petitioner's mother
has been held to be the deceased Kripa
Shankar's wife, even if it is assumed that she
was not the lawfully wedded wife of the
deceased, as asserted by respondent Nos.5 and
6,
the
right
to
a
consideration
for
compassionate appointment cannot be
denied to a child born outside wedlock,
who is regarded as legitimate, even if the
marriage is void u/s 11 of the Act of 1955,
by virtue of sub-Section (1) of Section 16
of that Act. (Para 27, 28)

D. While there would be no difference as
regards the maintainability of the first
petitioner's
candidature
for
764 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate appointment under the
Uttar Pradesh Recruitment of Dependants
of Government Servants Dying in Harness
Rules, 1974, the fact that the first
petitioner's mother has been held to be
lawfully wedded wife of the deceased
Kripa Shankar, would attach more weight
to that candidature because of Rule 7 of
the Rules, 1974. (Para 28)

Unless there is a rival claim by
respondent Nos.5 and 6, preferred
after the institution of the petition or
hereafter, Rule 7 of the Rules of 1974
may not come into play at all. The
reason is that from the state of pleadings,
it nowhere appears that respondent Nos.5
and 6, or either of them, have staked
their
own
claim
for
compassionate
appointment. Theirs' has been just a case
of resisting the first petitioner's claim for
compassionate
appointment;
not
canvassing their own. If, however, their
claim is there and made in accordance
with rules within the limitation prescribed,
the claim of the first petitioner and
those of respondent Nos.5 and 6, or
one of them, whoever comes up,
would have to be considered and
dealt with by the General Manager in
accordance with Rule 7 of the Rules
of 1974. (Para 30, 31)

Writ petition allowed. (E-4)

Case Law Cited
1. Shiramabai Vs. Captain, Record Officer for
O.I.C. Records, Sena Corps Abhilekh, Gaya,
Bihar State and another, 2023 SCC OnLine SC
1026 (Para 12)

2. Banarasi Dass Vs. Teeku Dutta (Mrs) and
another, (2005) 4 SCC 449 (Para 18)

3. Pawan Kumar Masurkar Vs. State of M.P. and
others, I.L.R. 2024 M.P. 196 (Para 24)

4. Union of India and another Vs. V.R. Tripathi,
(2019) 14 SCC 646 (Para 27)

5. Mukesh Kumar and another Vs. Union of
India and others, (2022) 14 SCC 161 (Para 28)

6. Kumari Manisha Vs. State of U.P., AIR Online
2024 ALL 1481 (Para 28)

List of Acts
Hindu Marriage Act, 1955; Indian Succession
Act, 1925; Uttar Pradesh Recruitment of
Dependants of Government Servants Dying in
Harness Rules, 1974;

List of Keywords
Service,
compassionate
appointment,
post
retiral benefits.

Appearances for Parties
For Appellant: Mr. Jai Shankar Pandey,
Advocate
For Respondent: Mr. Rajesh Kumar Tiwari,
Addl. Chief Standing Counsel for respondent
No.1 Mr. R. M. Saggi, Advocate for respondent
Nos. 2, 3 and 4 Mr. Akhilesh Kumar Ojha,
Advocate for respondent Nos. 5 and 6

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order of the General Manager, Water
Works Department, Nagar Nigam, Kanpur
dated
11.04.2023,
rejecting
the
first
petitioner's
claim
for
compassionate
appointment. So far as petitioner No.2 is
concerned,
she
seeks
a
mandamus
commanding the General Manager, Water
Works Department, Kanpur Nagar Nigam
to pay her post retiral benefits on account
of
her
husband's
services,
including
gratuity, provident fund, as also family
pension, together with interest accrued on
sums of money due under different heads.

 2. It is not in dispute that Kripa
Shankar, the first petitioner's father and the
second petitioner's husband, was employed
as a Beldar in the Water Works Department
(for short, 'the Water Works') within the
establishment of the Nagar Nigam, Kanpur
(for short, 'the Nigam'). There is also no
issue about the fact that he died in harness
on 18.06.2021. It is not disputed either that
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
765
in Kripa Shankar's service-book, the names
of the first petitioner and the second
petitioner are recorded as son and wife,
respectively. It is also not in dispute that
the two petitioners included, in Kripa
Shankar's service-book, five members of
his family are shown. They are: (1) Smt.
Ram Kumari (wife), (2) Smt. Rekha
Sonkar, daughter (married), (3) Smt.
Surajmukhi,
daughter
(married),
(4)
Shivam Sonkar, son, and (5) Shiva Sonkar,
son.

3. Upon Kripa Shankar's demise, the
second petitioner, Ram Kumari, applied for
payment of death-cum-retirement benefits
on account of her husband's service,
enclosing therewith a copy of Kripa
Shankar's
death
certificate
dated
12.08.2021. Also filed along with the
claim, was a family membership certificate
issued by the Sub-Divisional Officer,
Sadar, Kanpur Nagar dated 14.05.2022,
where the five family members of Kripa
Shankar were shown. The first petitioner,
on his part, applied for compassionate
appointment on 30.05.2022 to the General
Manager, Water Works as the family were
reeling under a tremendous financial crisis
and on the verge of starvation. The
application for compassionate appointment
was supported with the family membership
certificate, above mentioned, the first
petitioner's father's death certificate and
affidavits of no objection from the other
family members, to wit, Shiva Sonkar, Smt.
Surajmukhi and Smt. Rekha. The first
petitioner's case is that there is no legal
impediment in considering his case for
compassionate appointment. However, the
Executive Engineer (Headquarters), Water
Works, vide order dated 07.06.2022,
rejected the first petitioner's claim for
compassionate appointment on the specious
grounds that the General Manager, Water
Works, had declined the claim because the
family
membership
certificate
dated
14.05.2022 was not valid for the purpose of
government service.

4. The petitioners challenged the said
order, moving this Court vide Writ-A
No.2587 of 2023. This Court quashed the
order dated 07.06.2022 on the ground that
the first petitioner being recorded as the
deceased's heir in the service-book, the
family
membership
certificate
dated
14.05.2022 was a document informative in
nature, but not relevant. The Executive
Engineer was directed to pass fresh orders,
ignoring paragraph No.3 of the family
membership certificate dated 14.05.2022.
After the said order was served upon the
General Manager, Water Works, he again
rejected the first petitioner's claim for
compassionate appointment on ground that
the deceased employee had a first wife, of
whom he had two children, Arti Sonkar and
Sani Sonkar and that the said fact had not
been disclosed in the family membership
certificate produced by the first petitioner
in support of his claim. The General
Manager also relied on Arti Sonkar's
Aadhaar Card, PAN Card, her mark-sheet
of BA IIIrd year produced by Arti Sonkar
and Sani Sonkar, allegedly born to the
deceased of his first wife, all of which
showed late Kripa Shankar as their father,
besides the family membership certificate
dated 14.05.2022 (wrongly mentioned as
17.05.2022) issued by the Sub-Divisional
Officer, Sadar, Kanpur Nagar, which too
shows Kripa Shankar's name as the father
of Arti Sonkar and Shiva Sonkar. The
General Manager, on occasion, directed the
petitioner to secure a succession certificate
from the Court of competent jurisdiction.

5. So far as the second petitioner's
claim to post retiral benefits due on account
766 INDIAN LAW REPORTS ALLAHABAD SERIES
of the deceased's services is concerned, the
respondents did not move to pay the same,
apparently on ground that there was a case
of the deceased marrying a second time
during the lifetime of his first wife, of
whom too he had two children. The second
petitioner's claim was not acknowledged at
all.

6. In these circumstances, this writ
petition has been moved with a prayer to
quash the order, declining the first
petitioner's claim and seeking a command
to the General Manager to consider his case
for compassionate appointment on merits.
So far as the second petitioner is
concerned, she seeks our mandamus,
ordering the respondents to pay post retiral
dues for the services rendered by her
husband, including a family pension, that is
payable under the rules.

7. A notice of motion was issued in
this case on 03.07.2023. On 25.07.2023,
parties having exchanged affidavits, the
petition was admitted to hearing. The
hearing
proceeded
forthwith,
though
adjourned across a number of dates. The
matter was heard at length and judgment
reserved. The service-book in original,
relating to the deceased Kripa Shankar, was
summoned vide order dated 13.10.2023,
which was produced on 15.12.2023 before
the Court and directed to be kept in safe
custody with the Registrar General.

8. Heard Mr. Jaishankar Pandey,
learned Counsel for the petitioner, Mr.
Rajesh Kumar Tiwari, learned Additional
Chief Standing Counsel, appearing on
behalf of respondent No.1, Mr. R. M.
Saggi, learned Counsel, appearing on
behalf of respondent Nos. 2, 3 and 4 and
Mr. Akhilesh Kumar Ojha, learned Counsel
appearing on behalf of respondent Nos.5
and 6. The original records summoned
from the respondents were also perused.

9. In the counter affidavit filed on
behalf of the Nagar Nigam and the General
Manager, Water Works, the stand taken in
paragraph No.6 of the affidavit is that the
late Kripa Shankar did marry twice in his
lifetime, but not during the lifetime of his
first wife, Smt. Kalwati. Kripa Shankar
solemnized a second marriage, according to
these respondents, with Smt. Ram Kumari
after Kalawati had passed away. He had
two children born of his first wife,
Kalawati to wit, Arti Sonkar and Sani
Sonkar. Ram Kumari, his second wife, bore
him
four
children,
to
wit,
Rekha,
Surajmukhi, the daughters, besides Shivam
and Shiva, the sons. This is the position of
the deceased's family, admitted to the
employers,
represented
by
respondent
Nos.3 and 4. In paragraph Nos.17, 18 and
19, the stand that has been taken by the
General Manager, Water Works and the
Nagar Nigam, to wit, the employers, is that
the family membership certificate produced
by the first petitioner, Shivam Sonkar,
being incomplete in the sense that it did not
mention Arti Sonkar and Sani Sonkar, the
deceased's children born of his first wife
and a succession case, being Misc. Case
No.586/70 of 2022, pending before the
Civil Judge (Sr. Div.), Kanpur Nagar, the
first petitioner's claim for compassionate
appointment could not be considered. The
first petitioner was asked to produce a
succession certificate in his favour.

10. A separate counter affidavit has
been filed on behalf Arti Sonkar and Sani
Sonkar, described as Sunni Kumar in the
array of parties. In this affidavit, the stand
taken is that Smt. Kalawati was the
lawfully wedded wife of Kripa Shankar. No
divorce by a decree of Court took place
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
767
between Smt. Kalawati and the deceased
employee. Ram Kumari and Kripa Shankar
were never married and she has been
described by these respondents by words
that were in yesteryears well accepted in
daily life and commonplace in legal
parlance, but are now the objects of a frown
of disapproval, though still there in the
English
Dictionary.
We
would
not,
therefore, mention them, but say that to
Ram Kumari, these respondents have
ascribed the status of a woman, who lived
with the deceased away from wedlock. In
paragraph No.8, Kalawati has been asserted
to be the only person entitled to receive the
deceased's post retiral benefits, and after
her, her heirs and LRs, that is to say, Arti
Sonkar and Sani Sonkar, respondent Nos.5
and 6.

11. What we notice from the counter
affidavit filed by respondent Nos.5 and 6 is
that though these respondents assert that
the deceased never married Smt. Ram
Kumari, but they do not disclose Smt.
Kalawati's date of death. On the other
hand, the employers, who would generally
know the affairs regarding the family of
their employee to the extent relevant to his
employment, have taken the stand that the
deceased married Smt. Ram Kumari after
his first wife, Kalawati's demise. If this
were not so, they would not have accepted
a nomination form for the payment of post
retiral benefits in favour of Smt. Ram
Kumari, which is there on record, that we
have perused. It is difficult in this state of
things to conclude in favour of what
respondent Nos.5 and 6 say that the
deceased never married Smt. Ram Kumari,
and that the first petitioner together with his
three siblings were born outside wedlock.
At least, this is the apparent state of things,
which the employers have accepted. It is
the policy of the law to presume in favour
of legitimacy, so far as marriage and
children, born of an ostensible wedlock, are
concerned.

12. Reference in this connection may
be made to Shiramabai v. Captain,
Record Officer for O.I.C. Records, Sena
Corps Abhilekh, Gaya, Bihar State and
another, 2023 SCC OnLine SC 1026. The
facts in Shiramabai (supra), that have a
strong bearing on the principle laid down,
squarely applicable here, also have a
striking similarity to the facts in this case.
The facts in Shiramabai can best be
recapitulated
in
the
words
of
their
Lordships as these figure in the report.
These read:

"4. Late Subedar Bhave was
enrolled in the Army in the year 1960 on
21st July, 1960. On 17th July, 1972, he got
married to one Smt. Parvati who died in
about two and a half years on 26th
January, 1975. Thereafter, the deceased
got married to one Smt. Anusuya on 17th
March, 1975. During the subsistence of his
marriage with Anusuya, he married the
appellant no. 1 herein on 21st February,
1981. Appellants No. 2 and 3 are the
offspring of the deceased and appellant no.
1. On 25th January, 1984, the deceased
was discharged from service at his request
and was granted service pension at the rate
of Rs. 376/- (Rupees three hundred seventy
six only) per month. On 15th November,
1990, the deceased and Anusuya were
granted a decree of divorce by mutual
consent M.C. No. 21/1990 and he paid a
lumpsum amount of Rs. 15,000/- (Rupees
fifteen thousand only) to her. Thereafter,
the deceased approached the respondent
No. 2 for deleting the name of Anusuya and
endorsing the name of the appellant No. 1
in the PPO. He also submitted a certificate
dated 08th October, 1994 issued by the
768 INDIAN LAW REPORTS ALLAHABAD SERIES
Village
Sarpanch,
Gram
Panchayat
Bahirewadi, certifying that he and the
appellant No. 1 had got married along with
a copy of their wedding card as proof of the
marriage.

5. Subedar Bhave expired in the
year
2001 on 12th
January,
2001.
Thereafter, appellant No. 1 approached the
respondents for grant of family pension
vide application dated 09th July, 2001. The
said request was, however, rejected by the
respondents vide letter dated 01st October,
2001 on the ground that the deceased had
got divorced in November, 1990, whereas
the appellant No. 1 claimed to have got
married to him in February, 1981, during
the subsistence of the earlier marriage.

6. In 2005, the appellants instituted
a civil suit for declaration praying inter alia
for issuing directions to the respondents to
disburse the pensionary benefits payable on
the demise of the deceased, Subedar Bhave. As
noticed above, the trial Court decreed the said
suit in favour of the appellants and held that
they were entitled to receive the terminal
benefits of the deceased, particularly, since no
claim was ever laid on the said amount by his
ex-wife Anusuya. Aggrieved by the said order,
the respondents preferred an appeal (Regular
Appeal No. 70 of 2008), which was allowed
and the judgment and decree passed by the
learned Civil Judge was set aside. The said
order was assailed by the appellants in a
Regular Second Appeal No.6079 of 2010 that
came to be dismissed by the High Court.
Subsequently, on the basis of the Review
Application, the court clarified vide order
dated 16th October, 2014 that the appellants
No. 2 and 3 herein would be entitled to the
estate of Late Subedar Bhave which is in the
custody of the respondents."

13. The question, that arose for
consideration in Shiramabai, is culled out
in paragraph 11 of the report, which reads:

"11.
We
have
heard
the
arguments advanced by learned counsel for
the parties, perused the records and the
impugned judgment. The limited issue that
requires to be answered is whether the
appellants would be entitled to claim
pensionary benefits of Late. Subedar Bhave
in the facts of the instant case where he had
got married to the appellant No. 1 during
the subsistence of his marriage with
Anusuya, but, subsequently a decree of
divorce was passed, dissolving the said
marriage."

14. In answering the question, their
Lordships of the Supreme Court held:

"14. It is no longer res integra
that if a man and woman cohabit as
husband and wife for a long duration, one
can draw a presumption in their favour that
they were living together as a consequence
of a valid marriage. This presumption can
be drawn under Section 114 of the
Evidence Act that states as follows:

"114. The Court may presume the
existence of any fact which it thinks likely
to have happened, regard being had to the
common course of natural events, human
conduct and public and private business, in
their relation to the facts of the particular
case."

15. In this above context, we may
refer to Andrahennedige Dinohamy v.
Wijetunge Liyanapatabendige Balahamy,
1927 SCC OnLine PC 51, where the Privy
Council observed thus:

"...where a man and woman are
proved to have lived together as man and
wife, the law will presume, unless the
contrary be clearly proved, that they were
living together in consequence of a valid
marriage and not in a state of concubinage.

xxxxxxxxx
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
769

"The parties lived together for
twenty years in the same house, and eight
children were born to them. The husband
during his life recognized, by affectionate
provisions, his wife and children. The
evidence of the Registrar of the District
shows that for a long course of years the
parties
were
recognized
as
married
citizens, and even the family functions and
ceremonies, such as, in particular, the
reception of the relations and other guests
in the family house by Don Andris and
Balahamy as host and hostess-all such
functions were conducted on the footing
alone that they were man and wife. No
evidence
whatsoever
is
afforded
of
repudiation of this relation by husband or
wife or anybody."

16. In Mohabbat Ali Khan v.
Muhammad Ibrahim Khan, 1929 SCC
OnLine PC 21, it was again observing by
the Privy council that:

"...The law presumes in favour of
marriage and against concubinage when a
man and a woman have cohabited
continuously for a number of years..."

17. Similarly, in Badri Prasad v.
Dy. Director of Consolidation, (1978) 3
SCC 527, this Court held as follows:

"...A strong presumption arises in
favour of wedlock where the partners have
lived together for a long spell as husband
and wife. Although the presumption is
rebuttable, a heavy burden lies on him who
seeks to deprive the relationship of legal
origin. Law leans in favour of legitimacy
and frowns upon bastardy..."

18. In S.P.S. Balasubramanyam
v. Suruttayan alias Andali Padayachi,
(1994) 1 SCC 460, this Court held as
under:

"4. What has been settled by this
Court is that if a man and woman live
together for long years as husband and
wife then a presumption arises in law of
legality of marriage existing between the
two. But the presumption is rebuttable (see
Gokal Chand v. Parvin Kumari, (1952) 1
SCC 713).

19. It is true that there would be a
presumption in favour of the wedlock if the
partners lived together for a long spell as
husband
and
wife,
but,
the
said
presumption is rebuttable though heavy
onus is placed on the one who seeks to
deprive the relationship of its legal origin
to prove that no marriage had taken place
(refer : Tulsa v. Durghatiya, (2008) 4 SCC
520).

22.
In
Kattukandi
Edathil
Valsan's Case (supra), citing the abovesaid
decisions and relying on Section 114 of the
Evidence Act, this Court held in the facts of
the said case that there was a presumption
of the marriage between the parents of the
plaintiffs on the ground of their long
cohabitation status, entitling their offspring
to claim their share in the suit schedule
property.

23. It can be discerned from the
aforesaid line of decisions that the law
infers a presumption in favour of a
marriage when a man and woman have
continuously cohabitated for a long spell.
No
doubt,
the
said
presumption
is
rebuttable and can be rebutted by leading
unimpeachable evidence. When there is any
circumstance
that
weakens
such
a
presumption, courts ought not to ignore the
same. The burden lies heavily on the party
who seeks to question the cohabitation and
to deprive the relationship of a legal
sanctity.

24. In the instant case, if the
period upto the year 1990 was to be
excluded as the marriage between Late
Subedar Bhave and Anusuya had got
dissolved only on 15th November, 1990,
fact remains that even thereafter, the
deceased had continued to cohabit with the
770 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant No. 1 for eleven long years, till
his demise in the year 2001. The appellant
No. 1 was the mother of two children born
from the relationship with the deceased,
namely,
appellants
Nos.
2
and
3.
Appellants No. 2 and 3 have been held
entitled to the estate of the deceased by
virtue of the order passed by the High
Court on the Review application moved by
them.
In
the
above
background,
a
presumption ought to have been drawn in
favour of the validity of the marriage
between the deceased and the appellant No.
1, more so, when during his life time, the
deceased had approached the respondent
authorities for seeking deletion of the name
of his previous wife - Anusuya from his
service record and for endorsement of the
name of the appellant No. 1 therein, which
was duly acted upon by the respondents
vide letter dated 05th July, 1999. It is also
not in dispute that the ex-wife did not claim
any pension from the respondents on the
demise of Subedar Bhave."

15. The facts, upon which the
principle in favour of sustaining the
validity of a marriage and the legitimacy of
children born to parties, is attracted, would
apply with greater force here. The reason is
that in Shiramabai, there was no dispute
on facts that the marriage between
Shiramabai and Subedar Pundalik Bhave
was solemnized in February, 1981, whereas
marriage between the Subedar and his wife,
Anusuya, was undone by a decree of
divorce passed in November, 1990. The
marriage between Subedar Bhave and
Shiramabai would certainly have been void
when solemnized in view of Section 5 of the
Hindu Marriage Act, 1955 (for short, 'the Act
of 1955'), but with passage of time and
consistent cohabitation as man and wife, with
no objection from Anusuya till the decree of
divorce was passed, and until time that
Subedar Bhave died, led the law to lay to lean
in favour of holding legitimacy of the marital
bond. In the present case, we say the principle
applies on surer footing, because on one
hand, there is no specific date mentioned, on
which petitioner No.2 married the deceased
Kripa Shankar, and, on the other, respondent
Nos.5 and 6, the children of the deceased's
first wife, Kalawati, do not mention the date
of her demise. It is, therefore, not a case
where on stated facts, proven by evidence or
not disputed at all, the deceased married Ram
Kumari, during the lifetime of his first wife
and subsistence of that marriage. As already
remarked, the respondents, who are presumed
to be in some know of the affairs of their
employees, accept the position that the
deceased had married Ram Kumari after his
first wife, Kalawati's death.

16. The fact that the marriage between
the two continued over a long period of time
is beyond cavil because the children of
parties, to wit, Ram Kumari and the
deceased, Kripa Shankar, were all adults in
the third decade of their life. To regard a
marriage, as old as this, and, that too, in the
absence of facts, showing that the deceased
actually married Ram Kumari while his first
wife, Kalawati was alive, would be to do
violence to that principle of great moment,
which legitimizes the institution of the family
and saves it from legal disapproval for the
want of evidence aliunde. This is a principle
of the law, which guides society and lends
stability to the institution of marriage, where
a superficial vantage of the society would
compel it to look down upon with disdain at a
marital bond of some uncertain or doubtful
origin. The principle must, therefore, be
given effect to with full flourish and extended
to all logical consequences.

17. Here, it must be added that it is
respondent Nos.5 and 6, who, in unison,
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
771
say that the second petitioner and the
deceased were never married. In the face of
the respondent employers accepting the
marriage
and
the
second
petitioner
asserting the status, if the 5th and the 6th
respondents were to assail it to any
consequence, they ought have instituted a
suit for declaration and proved the status,
which they seek to establish by producing
evidence before the Court at the trial of
such suit.

18. It must also be remarked here that
so far as the succession case goes, it is a
statutory proceeding under Section 372 of
the Indian Succession Act, 1925 (for short,
'the Succession Act') with a very limited
scope and consequence. A person, in whose
favour a succession certificate is issued,
establishes no title in himself to receive the
moneys, mentioned in the schedule to the
certificate. The certificate does not confer
any beneficial interest upon its holder to
utilize the money that he receives under it
as his own property. A certificate of this
kind, which is limited in its scope to
receive from a third party movables,
including money of another, who is no
more, is valid for the purpose of giving a
legal discharge to that other against the
rightful claimants to the money and other
movables. In support of this principle,
reference may be made to Banarasi Dass
v. Teeku Dutta (Mrs) and another,
(2005) 4 SCC 449, where it was held:

14. The main object of a
succession
certificate
is
to
facilitate
collection of debts on succession and afford
protection to the parties paying debts to the
representatives of deceased persons. All
that the succession certificate purports to
do is to facilitate the collection of debts, to
regulate the administration of succession
and to protect persons who deal with the
alleged representatives of the deceased
persons. Such a certificate does not give
any general power of administration on the
estate of the deceased. The grant of a
certificate does not establish title of the
grantee as the heir of the deceased. A
succession certificate is intended as noted
above to protect the debtors, which means
that where a debtor of a deceased person
either voluntarily pays his debt to a person
holding a certificate under the Act, or is
compelled by the decree of a court to pay it
to the person, he is lawfully discharged.
The grant of a certificate does not establish
a title of the grantee as the heir of the
deceased, but only furnishes him with
authority to collect his debts and allows the
debtors to make payments to him without
incurring any risk. ..."

19. The 5th and 6th respondents,
therefore, would not at all be better placed
in establishing their claim of being the only
children of the deceased employee, entitled
to claim the post retiral benefits on the
basis of a succession certificate. Here, it
must also be remarked that a succession
certificate and a nomination stand at par, in
that, that both do not confer upon the
person, nominated or the holder of a
certificate,
beneficial
interest
in
the
movables, money or securities that he
receives, held by third parties on behalf of
the deceased. The nominee or the holder of
a certificate may hold beneficial interest
too in the whole or a part that he receives
under it. But, the beneficial interest must
exist independent of the nomination or the
succession certificate. A fortiori, if a
nomination is already there in favour of the
second petitioner, there is little scope for
parties to vie for a succession certificate.

20. In principle, what would clinch the
issue about the entitlement to receive the
772 INDIAN LAW REPORTS ALLAHABAD SERIES
whole or a share in the post retiral benefits,
would be a suit by the 5th and 6th
respondents to establish their case. But,
given the fact that the deceased's wife, the
second petitioner, is there, who is also the
nominee, leaves slender scope for the
children, either born of the first wife or the
second, to stake claim to the post retiral
benefits on account of the deceased's
services in the presence of the wife (the
widow).
These
have
to
go
almost
universally under all service rules to the
widow; not the children.

21. In this conspectus of facts and the
law, we do not have the slightest of doubt
that the second petitioner here, who is also
the recorded nominee in the deceased's
service papers, is entitled to receive all post
retiral benefits, including family pension on
account
of
the
deceased
employee's
services.

22. This takes us to the claim of the
first petitioner, Shivam Sonkar, which
relates to the consideration of his case for
compassionate appointment. The claim of
the first petitioner is based on a case about
the deceased leaving behind a family of
five souls - a widow, two married
daughters and two dependent sons. There is
nothing said by the first petitioner about the
deceased's first wife or the two siblings of
half blood. Respondent Nos.5 and 6 have
come forward with a case, where they say,
it is their mother, who was the deceased's
wife, whereas the first petitioner's mother
never had matrimonial status. According to
these respondents, the first petitioner's mother
was never the deceased's wife and he is not a
legitimate child. We have already considered
this issue in the earlier part of this judgment
and held the first petitioner's mother to be the
lawfully wedded wife of the deceased. Once,
the first petitioner's mother has been held to
be the deceased's wife, his claim for a
consideration
of
his
candidature
for
compassionate appointment cannot be held
not maintainable.

23. The remark in the order impugned,
requiring the petitioner to obtain a succession
certificate as a condition precedent to the
consideration of his claim for compassionate
appointment, is misconceived. The General
Manager could not have committed a more
grave error than think that the first petitioner's
claim for compassionate appointment would
depend upon the said petitioner securing a
succession certificate under Section 372 of
the Succession Act. Clearly, a succession
certificate issued under the Succession Act
entitles the holder of the certificate, as already
remarked,
to
collect
the
deceased's
outstandings, that is to say, debts and
securities in the hands of third parties. It is
not at all something, which has any relation
to the entitlement of a dependent of the
deceased to compassionate appointment
under the employers' policy expressed in
administrative circular or rules. The opinion,
held by the General Manager, is the result of
his utter ignorance of the law and more than
that, the ill-found confidence amongst
educated
persons,
who
are
lay
as
distinguished from legal, in forming opinions
on purely legal matters without trained
advice.

24. The Madhya Pradesh High Court
was confronted with a similar situation in
Pawan Kumar Masurkar v. State of
M.P. and others, I.L.R. 2024 M.P. *196.
The question, which was considered by the
Court, is expressed in paragraph 5 of the
judgment in the following words:

"whether a person can seek
succession certificate in regard to grant of
compassionate appointment inasmuch as
9 All. Shivam Sonkar & Anr. Vs. State of U.P. & Ors.
773
that issue is to be determined in terms of
the provisions contained in Sections 370
and 374 of the Indian Succession Act,
1925."

25. After doing a survey of the
relevant provisions in Part X of the
Succession Act, Vivek Agarwal, J. held:

"11. Thus, when these aspects
are examined, then it is evident that as per
Section 374 of the Indian Succession Act,
the District Judge granting a certificate is
required
to
specify
the
"debts
and
securities" setforth in the application for
the certificate and by no stretch of
imagination compassionate appointment is
either a 'debt' or a 'security' as defined in
the Indian Succession Act. Therefore,
issuance of a succession certificate by the
concerned Civil Judge may be an act of
naivety but it will not bind the High Court
while considering the application for grant
of compassionate appointment."

26. In the considered opinion of this
Court, therefore, the remark and the
consideration carried in the impugned
order, to the effect that the petitioner's
claim is not maintainable in the absence of
a succession certificate secured by him
from the competent Court, is manifestly
illegal.

27.