JUDGMENT Rakesh Tiwari, J.
1. Heard the counsel for the petitioners and perused the record.
2. This writ petition has been filed for quashing the impugned order dated 22.3.1998 passed by respondent No. 1 Civil Judge, Senior Division, Gorakhpur, to delete the name of respondent No. 2 and declare the petitioners as legal heirs of late Bipin Bihari Dubey in her place. It is also prayed that respondent No. 1 be directed to issue a fresh succession certificate in favour of petitioner No. 1 accordingly.
3. The brief facts of the case are that petitioner No. 1 Smt. Amrita Dubey is the wife of late Bipin Bihari Dubey. Aditya Prakash Dubey and Shaurabh Chand Dubey are the sons of late Bipin Bihari Dubey. Sri Bipin Bihari Dubey died on 16.12.1996. After the death of her husband, petitioner No. 1 moved an application before the District Magistrate, Gorakhpur, for succession certificate on 6.1.1977. On the report of Tehsildar, Gola, Gorakhpur dated 3.1.1977, succession certificate was issued in her favour. In the meantime, the petitioners filed Succession Case No. 30 of 1997 before the Civil Judge (S.D.), Gorakhpur, for a succession certificate for withdrawal of the money deposited in the name of Bipin Bihari Dubey.
4. (a) In Central Bank of India, Bank Road, Gorakhpur, the following amounts have been deposited in different accounts :
(i) SB A/c No. 38431 CBI, Gorakhpur, Rs. 28,100.
(ii) FD No. FDR/UB No. 770200/65/48, Rs, 2,40,000.
(b) In post office at Gorakhpur the following NSC have been deposited :
5. The Succession Case No. 30 of 1997, was adjourned from time to time. In the meantime respondent No. 1 directed the petitioner to implead Smt. Vidya Wati, respondent No. 2 as legal heir of late Bipin Bihari Dubey.
6. On 19.9.1997 respondent No. 2 moved an application before the Civil Judge (S.D.) Gorakhpur, that the petitioners are the legal heirs of late Bipin Bihari Dubey and that it was her heartly desire that succession certificate may be issued in favour of the petitioners. On 18.12.1997 petitioner Nos. 2 and 3 also moved an application before the Civil Judge (S.D.) Gorakhpur that they are the real sons of late Bipin Bihari Dubey and consented for relinquishment of their desire in favour of petitioner No. 1.
7. The matter was considered by the Lok Adalat on 23.3.1997 on an applicant moved by them. Respondent No. 1 by the impugned order dated 22.3.1997 issued succession certificate in favour of the petitioners. Section 8 of the Hindu Succession Act, 1956 reads as under :
"Section 8.--General Rules of Succession in the case of male. --The property of a male Hindu dying intestate shall devolve on his heirs, i.e., sons, widow and mother."
8. According to the aforesaid Section 8, the property shall devolve firstly on the sons, then on widow and lastly on the mother. The sons and mother have also given their consent through affidavit for issuance of the succession certificate in favour of petitioner No. 1, the widow of late Bipin Blhart Dubey.
9. It is contended by the counsel for the petitioners that respondent No. 1 on the affidavits of petitioner Nos. 2 and 3 and respondent No. 2 had passed the impugned order arbitrarily without application of mind as such it is illegal and against the provisions of law.
10. It is in this backdrop that prayer for a writ, order or direction in the nature of mandamus directing respondent No. 1 to delete the name of respondent No. 2 as legal heir of late Bipin Bihari Dubey and further directing respondent No. 1 to declare legal heirs of late Bipin Behari Dubey to the petitioner has been made.
11. A supplementary-affidavit has been filed on 23.2.2000 by petitioner No. 2 Aditya Prakash Dubey inter alia that respondent No. 2 Smt. Vidya Wati, mother of late Bipin Bihari Dubey, has expired on 14.12.1999. Death certificate issued by the Chairman, Nagar Panchayat, Gola Bazar, Gorakhpur, dated 10.1.2000 has also been brought on record. It is further averred in the affidavit that since respondent No. 2 has expired, the order dated 22.3.1998 in so far as relief against respondent No. 2 is concerned, has become infructuous. It is further submitted that as petitioner Nos. 2 and 4 have given up their claim in favour of petitioner No. 1. There is no legal impediment in directing respondent No. 1 to release the monies in favour of the petitioner No. 1, as detailed given in para 4 of the judgment.
12. No counter-affidavit has been filed as regards sole contesting respondent No. 2, the mother of late Bipin Bihari Dubey. There is no other claimant of the property/(money) of late Bipin Bihari Dubey and as such it would be expedient in the circumstances and in the interest of justice to issue a direction to release the property/money in favour of petitioner No. 1, who is widow of late Bipin Bihari Dubey.
13. For the reasons stated above, the writ petition is allowed. The order dated 22.3.1998, passed by respondent No. 1 is quashed. No dispute now remains in respect of the property. Respondent No. 1 is directed that the property/amount of money deposited by late Bipin Bihari Dubey shown in para 4 of this judgment, be released in favour of petitioner No. 1 after deleting the name of respondent No. 2, mother of late Bipin Bihari Dubey from the succession certificate, as she is already dead.