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Himachal Pradesh High Court · body

2000 DIGILAW 243 (HP)

LIAQ RAM v. GENERAL PUBLIC

2000-09-11

K.C.SOOD, KAMLESH SHARMA

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JUDGMENT : Per Kuldip Chand Sood, J. : - Chhangi Devi, original appellant, filed an application No. 1-S/2of 1993, before the District Judge, Solan, for grant of Succession Certificate under Section 372 of the Indian Succession Act, hereinafter referred to as The Act, for the debts due to deceased Sant Ram, son of the applicant, lying with the State Bank of India, Solan in terms of the following accounts: (a) Saving Bank Account No. 46/15805 for Rs. 8587.82 paise; (b) Saving bank Account No. 1543 for rupees 48,143.35/-. (c) Fixed Deposit Receipt No. 338774 for rupees 75000/-. Total Rs: 1,31,670/-. The District Judge declined to grant the certificate. Dis -satisfied, Chhangi Devi preferred this appeal. 2. In order to appreciate the controversy, facts for the purpose of disposal of this appeal may be noticed thus: Sant Ram died intestate leaving behind his widow Shanti Devi, respondent No. 2, daughter Ms. Neelam respondent No.3, mother Smt. Chhangi Devi, (appellant-applicant) and a son Sunder Singh who died before the filing of the application for the grant of by the respondent s on grounds, inter alia : (i) Applicant is not mother of Sant Ram: (ii) Sant Ram had executed a will which is in possession of liaq Ram, (iii) Applicant Chhangi, in collusion with her son Liaq Ram taking undue, advantage of the minority of respondent Neelam withdrew Rs. 40,000/- from the account of Sant Ram four or five days after his death and that rupees 40,000/- is liable to be adjusted towards the share of Chhangi Devi if she is found to be entitled to the debts mentioned in the application. 3. Learned trial Judge settled the following issues: 1. Whether the applicant Smt. Chhangi Devi is entitled to 1/4th share of the bank deposit in question, which has been left behind her son deceased-Sant Ram? 2. Relief. 4. Learned trial Judge found applicant to be entitled to 1/4t h share out of the total amount of rupees 1,31,670/- mentioned in the application which comes to less than 40,000/-. She also found that the applicant, through her son Liaq Ram, had already withdrawn rupees 40,000/- immediately after the death of Sant Ram. The trial Judge therefore held that as nothing remains to be paid to the applicant, therefore, succession certificate cannot be issued favour of Chhangi Devi. 5. She also found that the applicant, through her son Liaq Ram, had already withdrawn rupees 40,000/- immediately after the death of Sant Ram. The trial Judge therefore held that as nothing remains to be paid to the applicant, therefore, succession certificate cannot be issued favour of Chhangi Devi. 5. During the pendency of the appeal, Smt. Chhangi Devi died on May 15, 1998. She was substituted by her legal representatives, present appellants no. 1 to 5 by the orders of this Court dated December 28, 1998. It may also be noticed that Smt. Shanti Devi, respondent No. 2 is mentally retarded and is represented by her daughter Ms. Neelam, respondent No. 4. 6. The contention of the appellant is that the District Judge has illegally held that amount of rupees 40,000/- withdrawn by Liaq Ram son of Chhangi Devi appellant, on the basis of a cheque issued by deceased Sant Ram, is liable to be adjusted against the 1/4th share of Chhangi Devi. It is the further contention of the appellant that once the appellant is held to be entitled to the grant of succession certificate, the same cannot be fettered by extraneous consideration and that appellant ought to have been granted the succession certificate in respect of all the deposits mentioned in the application. 7. We have heard Mr. K.D. Sood, learned counsel for the appellants and Mr. G.D. Verma, learned Senior Counsel for the respondents and gone through the record. 8. The contention of Shri Verma is two-fold: (a) The present appeal is not maintainable; (b) On the death of Chhangi Devi, the proceedings comes to end and certificate cannot be granted on the basis of the application filed by Chhangi Devi to any other person. Maintainability of appeal 9. So far the maintainability of the appeal is concerned, Part X of the Indian Succession Act, 1925, deals with the grant of Succession Certificates. Section 372 of the Act deals with the application for the grant of the Certificate. Section 373 provides for the procedure of inquiry. Section 377 deals with the Forms and extension of Certificate. Section 383 provides for revocation of the certificate and Section 384 provides for appeal against the order of the District judge granting, refusing or revoking a certificate under this part. Section 384 reads: "384. Appeal. Section 373 provides for the procedure of inquiry. Section 377 deals with the Forms and extension of Certificate. Section 383 provides for revocation of the certificate and Section 384 provides for appeal against the order of the District judge granting, refusing or revoking a certificate under this part. Section 384 reads: "384. Appeal. (1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to who the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted. (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908. (3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, an order of a District Judge under this Part shall be final. 10. Bare reading of Section 384 shows that an appeal lies from an order: (a) granting a certificate; or (b) refusing to grant a certificate; or (c) revoking a certificate and an order refusing to revoke a certificate. 11. Mr. Verma, learned Senior Counsel states that the learned District Judge by her impugned order has neither granted the certificate nor refused to grant the certificate and therefore, the present appeal is untenable under Section 384 of the Act. The operative para of the impugned order of learned District Judge reads : "As held in the findings of issue no. 1, the application is allowed to the extent that applicant chhangi Devi is held entitled to 1/4th share in the aforementioned three accounts of deceased Sant Ram but on account of withdrawal of Rs. 40,000/- on 8.12.1984 by Shri Liaq Ram son of the applicant, who is residing with her, no other amount remains qua which succession certificate in favour of the applicant is to be issued. Parties are left to bear their own cost. The file after completion be consigned to the record room." 15. 40,000/- on 8.12.1984 by Shri Liaq Ram son of the applicant, who is residing with her, no other amount remains qua which succession certificate in favour of the applicant is to be issued. Parties are left to bear their own cost. The file after completion be consigned to the record room." 15. It is manifest that the learned District Judge found that the appellant Chhangi Devi was entitled to 1/4th share in three accounts as detailed in the petition but on account of withdrawl of rupees 40,000/- by Liaq Ram son of the applicant, there is no amount due to Chhangi Devi for which succession certificate could be issued to her. Apparent as it is, the order of the District Judge amounts to refusal to the grant of the succession certificate. We are, therefore, of the considered view that the present appeal by Chhangi Devi is maintainable. Whether grant of Succession Certificate could be refused Part X of the Act is a fiscal legislation providing for collection and discharge of the deceased of the debts after payment of necessary revenue to the Government in the shape of the duty. The legislative intent of the Chapter X of the Succession Act is that the Court should choose one of the claimant who prima facie have the best title for the grant of the certificate in respect of the entire debts and securities saddling him with the responsibility of dealing with the various claims after taking such security as may be sufficient to safeguard the interests of the other claimants (See : Sughra Begam and others vs. Mohammad Mir Khan, A.I.R 1921 Allahabad 221 and Bhudat Singh vs. Mangat Rai and others A.I.R. 1934 Allahabad 296). 17. The proceedings under the Act, thus, are not mean to decide conflicting claims or to ascertain shares of the different claimants in a particular debt. In Mohammad Mir Khan, the Division Bench of the Allahabad High Court relying upon Full Bench decision of the same Court in Ghafur Khan v. Kalandri Begam, (1911) 33. Allahabad 327, observed : "A proceeding under the Succession Act was not the proper forum for the ascertainment of the shares of different claimants in a particular debt due to the estate of the deceased person." 18. At this stage, we may notice that the Act of 1925 consolidates the law applicable to the intestate succession. Allahabad 327, observed : "A proceeding under the Succession Act was not the proper forum for the ascertainment of the shares of different claimants in a particular debt due to the estate of the deceased person." 18. At this stage, we may notice that the Act of 1925 consolidates the law applicable to the intestate succession. The Act consolidated as may as 12 Acts including : (a) Hindu Wills Act, 1870; (b) The Probate and Administration Act, 1881; (c) The Probate and Administration Act, 1889 and (d) The Succession Certificate Act, 1925. 19. Section 373 of the Act contemplates the grant of certificate to the petitioner if the Judge is satisfied, after summary inquiry, that he prima facie has the best claim to deal with the debts and securities of the deceased. It is now well settled that holder of the succession certificate has to dispose of the amount realized on the strength of such succession certificate in accordance with the rights of the persons who are entitled to it. It is not a final adjudication of the question of title to the debts and securities subject matter of the certificate. In fact, grant of succession certificate merely entitles a holder of the certificate with a authority to realize the debts of the deceased and give valid discharge, it does not contemplate the decision on question of title to the property. 20. We may quote with advantage the following observations in First National Bank Ltd. v. Devi Dayal, AIR 1968 Punjab and Haryana, 292 : ".. The grant of succession certificate merely clothes the holder of the succession certificate with an authority to realise tire debts of the deceased and to give valid discharge. He has, however, to dispose of the amount so realised in accordance with the rights of the persons who are entitled to it". 21. It was thus not open to the Id. District Judge Vs have directed the adjustment of rupees 40,000/- which was withdrawn by Liaq Ram son of Chhangi Devi on the basis of a cheque allegedly issued by Shri Sant Ram during his life time. Such question could only be determined by appropriate proceedings in the Civil Court. 21. It was thus not open to the Id. District Judge Vs have directed the adjustment of rupees 40,000/- which was withdrawn by Liaq Ram son of Chhangi Devi on the basis of a cheque allegedly issued by Shri Sant Ram during his life time. Such question could only be determined by appropriate proceedings in the Civil Court. If the learned District Judge found Chhangi Devi suitable person for the grant of succession certificate, then certificate ought to have been granted in respect of all the deposits as mentioned in the application for the benefit of all persons entitled to such deposits including respondents. 22. Looking at the Scheme of Part X of the Act, we are of the considered view that proceedings under Section 373 of the Act for grant of Succession Certificate does not contemplate the determination of the title of the grantee or any other person. It merely enables a grantee to give a v valid discharge of the debt, if paid by the debtor to the grantee. 23. A Division Bench of the Lahore High Court in Fateh Mohammad Khan and other v. Malkani Bhag Bhari, A.I.R. (37) 1950 Lahore 185 held that two main objects of the Act are : (a) to facilitate the collection of debts by the heirs of the deceased and (b) to enable the debtors to obtain a valid discharge. Whether on the death of Chhangi Devi, proceedings comes to end. 23. The next question which falls for consideration is whether the legal heirs of Chhangi Devi can continue the proceedings. Mr. Verma learned Senior Advocate relying upon Deo Kumar Singh v. Kailash Singh, AIR 1961 Patna 304, submits that on the death of the applicant the proceedings lapsed and there cannot be any substitution of the legal heirs of the applicant for the grant of succession certificate. To contra, Mr. K.D. Sood relying upon Mt. Phekni v. Mt. Mr. Verma learned Senior Advocate relying upon Deo Kumar Singh v. Kailash Singh, AIR 1961 Patna 304, submits that on the death of the applicant the proceedings lapsed and there cannot be any substitution of the legal heirs of the applicant for the grant of succession certificate. To contra, Mr. K.D. Sood relying upon Mt. Phekni v. Mt. Manki, A.I.R. 1930 Patna 618, P. Rama Naidu and others v. Rangayya Naidu and others, A.I.R. 1933 Madras 114, Govind M. Asrani v. Jairam Asrani and another, AIR 1963, Madras 456, Jadeja Pravinsinhji Anandsinhiji v. Jadeja Manehalsinhji Shivsinhji and others, AIR 1963 Gujarat 32, Gayaram Shaw and another v. Tarak Nath Shaw and others, AIR 1981, Calcutta 211, vehemently urges that after the death of the petitioner for the grant of succession certificate, the proceedings do not lapse and legal representative of the original applicant can be substituted for the deceased. He further submits that the judgment of Deo Kumar Singhs case supra, does not give any reason for holding that proceedings, on the death of an applicant for the grant of succession certificate lapse. 24. It is true that the judgment of the learned Single Judge in Doe Kumar Singh is bereft of any reason. It is a short order which may be reproduced: "In my opinion, the point urged on behalf of the petitioner on the authority of Sm. Fatemanesha Begum v. Sk. Mahidin, 48 Cal WN 673(1), that, on the death of an applicant for a succession certificate the proceedings lapses and there can be no substitution of the heirs or the alleged heirs of the applicant, has got substance and must be accepted. No authority taking a contrary view has been cited before me. I am in respectful agreement with the view expressed in the Bench decision of Calcutta High Court. I, therefore, allow this application, set aside the order dated the 28th May, 1960, of the learned Additional District Judge of Saran passed in Succession Certificate Case No. 40 of 1956. There will be no order as to costs". 25. It is apparent that the learned judge was pursuaded to take the view which he did on the basis of the authority of Sm. Fatemanesha Begum v. Sk. mahidin, 48 Cal WN 673(1) and the that no other authority taking contrary view was cited before him. 26. In Sm. There will be no order as to costs". 25. It is apparent that the learned judge was pursuaded to take the view which he did on the basis of the authority of Sm. Fatemanesha Begum v. Sk. mahidin, 48 Cal WN 673(1) and the that no other authority taking contrary view was cited before him. 26. In Sm. Fatemanesha Begum, a Division Bench of Calcutta High Court took a view that there is no devolution of any right to the estate after the death of the applicant. The grant of succession certificate does not confer any right on the applicant to the estate of the deceased and, therefore, on the death of an applicant for a succession certificate, the proceedings lapse and it will be open to any of the party entitled to a certificate to apply afresh. The Division Bench observed thus: "There is no question of devolution of any right to the estate of the deceased on the death of the applicant for a succession certificate. The grant of a certificate does not confer any right on the applicant to the estate of the deceased. The only material question is whether a right to apply for a succession certificate can be said to survive to the heir of the applicant. There can only be a negative answer to this question. On the death of the applicant for a succession certificate the proceeding lapses, and it will be open to any other party entitled to a certificate to apply. There is no question of substitution in such cases". 27. The authorities cited by Mr. K.D. Sood are distinguishable and, therefore, of no assistance. In all these cases, the right of the applicant in estate of the deceased was involved. In Mt. Phekni, the appellant applied for Letters of Administration before the District Judge on the basis of a will claiming herself to be the sole legatee. The application was resisted by the widow of the deceased and the District Judge rejected the application on the grounds that will is not proved. The appellant died during the pendency of the appeal. It was contended that right of the appellant to apply for Letters of Administration was a personal right and appellant having died, right to sue does not survive to her heirs. The appellant died during the pendency of the appeal. It was contended that right of the appellant to apply for Letters of Administration was a personal right and appellant having died, right to sue does not survive to her heirs. It is in these circumstances, interpreting the provisions of Section 232 and 233 of the Act, it was held that adjudication against genuineness of the will determines the right of the sole legatee under the will and, therefore, his daughter has the right to be substituted as it takes away a legal right from the original appellant. We hardly need to say that grant of succession certificate does not determine legal right to the properties of the deceased. Similarly the decision in P. Rama Naidu arose out of the proceedings under Section 222 of the Act and it was held that any of the beneficiary of the will can continue the proceedings. The decision in Govind M. Asrani also arose from the proceedings under Section 222 of the Act. in Jadeja Pravinsinhji Anandsinhji, Executor of the will died during the probate proceedings and it is in these circumstances it was held that maxim action personal is moritur cum persona does not apply and, therefore, the Executor of the will be substituted by beneficiary under the will who claim to be residuary legatee for continuing the proceedings. Similar is the case in Gayaram Shaw. None of the authorities cited by Mr. Sood arose form the proceedings for the grant of succession certificate under Part X of the Act. The ratio of these cases, thus, is not applicable to the proceedings under part X o the Act which do not determine the right of the party to the estate of the deceased. 28. Legal representatives, we notice, for the purposes of Order 22 rule 3 of the Code of Civil Procedure would mean the legal representatives as defined under Section 2(11) of the Code of Civil Procedure which reads; "legal representative" means any person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued". 29. 29. A bare reading of the definition shows that "legal I representative" essentially means a person who, in law, represents estate of the deceased. The legal heirs of the deceased applicant for the grant of succession certificate neither represent the estate of the deceased nor are intermeddlers with the estate. Therefore also are not persons on whom estate devolves on the death of the applicant. 30. The deceased personer, therefore, in the event of the grant of succession certificate, had no estate or right to estate which could be represented by the legal heirs. Thus, the present applicants, legal heirs of, deceased Chhangi Devi do not fall within the definition of "legal representatives" under Section 2(11) of the Code of Civil Procedure. 31. We draw strength, in our conclusion, from the ratio in Barumal Singh v. 3rd Additional District Judge, Saharanpur and others, AIR 1986 Allahabad 307. In that case, an application under Section 192 of the Act was moved by one V’ against petitioner B’ on the ground that ‘V’ being widow of ‘P deceased was entitled to inherit the property of P’ and consequently entitled to protect the possession of the property. The application was contested by B alleging that V’ was not the widow of deceased P and B being real brother of P’ was rightly in possession of the property. During the pendency of the proceedings, ‘V’ died. After her death, two persons moved an application for substitution on the grounds that ‘V’ had executed a will in their favour before her death. The application for substitution was contested by B urging that no application for substitution was maintainable. In this background it was observed that part VII of the Act relates to the protection of the property of the deceased and under Section 192 of the Act, any person claiming a right by succession to the property of the deceased can make an application to the District Judge for relief. Section 308 provided that decision in the summary proceedings is not an impediment for a suit either by the party whose application has been rejected or by the party who may have been evicted from the possession under this part. Section 308 provided that decision in the summary proceedings is not an impediment for a suit either by the party whose application has been rejected or by the party who may have been evicted from the possession under this part. It was held since V’ initiated the proceedings for the protection of property of P and respondent s claim right through V’ therefore right to sue does not survive to the respondents so far the proceedings under section 192 of the Act are concerned. The Court heavily relied upon Sm. Fatemanesha begum v. Mahadin and Sarat Chandra Banerjee v. Naini Mohan Banerjees ( (supra). 32. This apart, we find that part X provides for revocation as well as for surrender of the certificate in certain circumstances. Section 381 declares that succession certificate granted with respect to the debts and securities specified therein is only conclusive as against the persons owing such debts or liable on such securities and afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. The Act does not bar a similar application by an other person who has interest in the estate of the deceased. We may also emphasise that judgment given in these proceedings does not operate as res judicata with regard to the question of title. 33. We thus are of the considered view that proceedings for the grant of succession certificate lapse on the death of an applicant and legal heirs of such applicant cannot be substituted to continue the proceedings. Such lapse of proceedings, however, is not an impediment for the grant of s succession certificate to another eligible person by fresh proceedings. 34. In the facts and circumstances of this case, we hold that the proceedings started by Chhangi Devi for the grant of succession certificate lapse on her death. A succession certificate in respect of the debts and securities of late Sant Ram, as detailed in the petition of Chhangi Devi, can be granted to another person who may be found entitled to such certificates by fresh proceedings. The appeal is accordingly disposed off. There will, however, be no order as to costs.