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1990 DIGILAW 108 (KAR)

AROKIAMARY ANURDAMMAL v. SAMPAMMAL

1990-03-05

K.A.SWAMI

body1990
SWAMI, J. ( 1 ) THE respondents, though served, remained absent and unrepresented. ( 2 ) AS this petition can be disposedof on a short ground, it is admitted and heard for final disposal. ( 3 ) THIS Civil Revision is preferredagainst the order dated 18-1-1989 passed in P and Sc. No. 10031/1981 by the learned xix Additional City Civil Judge, Mayo hall, Bangalore. By the said order, the learned Judge has transferred the P and Sc. petition to the Family Court. ( 4 ) THE petitioners filed P and Sc. No. 10031/1981 in the court below for grant of a Succession Certificate in respect of the estate of the deceased Chinnappa under Section 372 of the Indian succession Act. In that proceeding, the respondents filed an application 9-9-1988 under section 151 of the C. P. Code for converting the P and Sc. case into an Original Suit on the ground that respondents 2 to 5 are the childrent of late Chinnappa. Thus they contested the case ot the petitioners, that they are the only heirs of deceased chinnappa. ( 5 ) WHEN that application came upfor consideration, the trial court came to the conclusion that the rival claims could not be decided without deciding as to whether petitioner-2 was the legally wedded wife of late Chinnappa. It was also of the view that this question could only be decided by the Family Court under the family Courts Act, 1984 (hereinafter referred to as the 'act' ). ( 6 ) THE trial court is not right in holdingthat Section 7 of the Act is attracted and the city civil court cannot entertain a p and Sc. case and issue a Succession certificate. The trial court has not correctly viewed the provisions contained in part X of the Indian Succession Act and the scope and ambit of Section 7 of the act which determines the jurisdiction of the Family Court. ( 7 ) THE preamble to the Family Courtsact specifically states that the Act is intended to provide for the establishment of family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Succession Certificate contemplated under the Indian Succession Act is not one of the subjects contemplated under the Act. Succession Certificate contemplated under the Indian Succession Act is not one of the subjects contemplated under the Act. In tune with the preamble of the Act, Section 7 which provides for the jurisdiction of the family Court, also does not take into its fold. Succession Certificate. Sub-section (1) of Section 7 of the Act specifically provides thus : "7. (1) Subject to the other provisions of this Act, a Family Court shall.- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area in which the jurisdiction of the Family Court extends. Explanation; The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature namely : (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as the matrimonial status of any person; c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; e) a suit or proceeding for a declaration as to the legitimacy of any person; f) a suit or proceeding for maintenance; g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any miner. Sub-section (2) of Section 7 of the Act deals with the jurisdiction exercisable by a Magistrate of the First Class under chapter IX of the Code of Criminal procedure and vests that jurisdiction in the family Court. It further provides that a family Court shall also have and exercise such other jurisdiction as may be conferred on it by any other enactment. It further provides that a family Court shall also have and exercise such other jurisdiction as may be conferred on it by any other enactment. ( 8 ) FROM the explanation to subsection (1) of Section 7 of the Act reproduced above, it is clear that the suits and proceedings coming under the purview of a Family Court are those which are connected with a marriage, namely for a decree of nullity of marriage, restitution of conjugal rights or judicial separation or dissolution of marriage; declaration as to validity of marriage or the matrimonial status of a person; with respect to the property of the parties to a marriage; or of either of them; for an order of injunction in circumstances arising out of a marital relationship; for a declaration as to the legitimacy of any person; for maintenance; or for the guardianship of the person or the custody of, or access to, any minor. Therefore, it is clear that the Succession certificate is not one of the matters coming under the jurisdiction of a Family court. ( 9 ) WHEREAS the object of grant ofsuccession Certificate does not determine any question of title or decide what property does or does not belong to the estate of the deceased; it merely enables the party to whom a certificate is granted to collect any debt or security belonging to the deceased. Thus the object is to facilitate the collection of debt and/or debts and not to enable the parties to litigate questions of disputed title. Section 383 of the Indian Succession Act specifically provides that the certificate granted under Part X may be revoked for any reasons falling under clauses (a) to (e) in that Section. Clause (e) specifically provides that a certificate granted under Part X may be revoked if the decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. Clause (e) specifically provides that a certificate granted under Part X may be revoked if the decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked. Therefore, it is open to a party entitled to the estate of the deceased irrespective of the fact that he has not been granted a succession certificate, to file a suit in a civil court and establish his right to the estate of the deceased and in that event, the succession certificate issued to any other person in respect of such estate of the deceased will have to be revoked. The learned trial judge has not taken into considaration these aspects and has wrongly arrived at the conclusion that in the light of the provisions contained in Section 7 of the act, the jurisdiction of the civil court is ousted. He has not read Section 7 of the act correctly. ( 10 ) THE learned trial judge is alsonot right in transferring the petition to the family Court. If, in his view, on the coming into force of the Family Courts act, the P and Sc. petition could not be maintained and continued in the City Civil court, he should have directed return of the petition to be presented before a proper court viz. , the Family Court. ( 11 ) IT may also be pointed out herethat this court in Vasumath v Chandtranl madhavi and another {c. R. P. No. 2119/ 89 D. D. 6-2-1990) has taken the same view. ( 12 ) FOR the reasons stated above,this Civil Revision Petition is allowed. The order dated 18-1 -1989 passed by the 19th additional City Civil Judge, Mayo Hall, bangalore, in P and Sc. No. 10031/1981 is set aside. The trial court is directed to dispose of the case on merits and in accordance with law. Petition allowed. --- *** --- .