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Madhya Pradesh High Court · body

2000 DIGILAW 461 (MP)

MANJULATA v. PEELA BAI

2000-05-02

DIPAK MISRA

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ORDER Dipak Misra, J. Invoking the revisional jurisdiction of this Court u/s 115 of the CPC (in short 'the C.P.C.') the petitioner has called in question the defensibility of the order dated 16-9-1999 passed by the learned Additional District Judge, Bilaspur in Misc. Civil Appeal No. 12/1998. Sans unnecessary details, the facts as have been unfurled are that the petitioner is the daughter of Late Kishan Lal. After the death of Kishan Lal the non-applicants No. 1 to 6 instituted Succession Case No. 51/1991 in the Court of Second Civil Judge, Class-I, Bilaspur for grant of Succession Certificate. The said Court on consideration of the facts and circumstances granted Succession Certificate in their favour. Being dissatisfied with that the petitioner filed an application u/s 383 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act') for revocation of the Certificate on the ground that she is the daughter of Late Kishan Lal and the Succession Certificate has been obtained without impleading her as a party and such an act amounts to suppression of fact which vitiates the order of grant of Succession Certificate. The said application was registered as Succession Case No. 40/1992. The prayer for revocation was resisted by the non-applicants No. 1 to 6 on the ground that the applicant is not the daughter of Kishan Lal and, therefore, she is not an heir and hence, the grant of Succession Certificate in Succession Case No. 51/1991 is absolutely defensible. The Court below on consideration of the materials brought on record rejected the application of the present applicant on the ground that the mother of applicant, Ramratibai, was not the legally wedded wife of Late Kishan Lal and, therefore, she was not necessary party to the succession case. Being of this view he rejected the application for revocation. Feeling aggrieved by the aforesaid order the petitioner preferred an appeal u/s 384 of the Act before the learned Additional District Judge, Bilaspur who came to hold that the appeal preferred by the petitioner was not maintainable. The said order is the subject-matter of challenge before this Court. I have heard Mr. Rajeev Shrivastava, learned counsel for the petitioner and Mr. Prashant Mishra, learned counsel for the respondents. Mr. Shrivastava has strenuously urged that the language used u/s 383 of the Act makes it absolutely clear that when the revocation is refused an appeal would lie. The said order is the subject-matter of challenge before this Court. I have heard Mr. Rajeev Shrivastava, learned counsel for the petitioner and Mr. Prashant Mishra, learned counsel for the respondents. Mr. Shrivastava has strenuously urged that the language used u/s 383 of the Act makes it absolutely clear that when the revocation is refused an appeal would lie. His submission is that, revocation in its ambit and sweep would also include refusal to revoke. It is also canvassed by him that initially the petitioner had preferred Civil Revision No. 2307/1999 and this Court was of the view that an appeal did lie for which the petitioner withdrew the revision petition and preferred an appeal. Resisting the aforesaid submission Mr. Prashant Mishra, learned counsel for the respondents has submitted that an appeal is a creation of Statute and the language employed u/s 384 of the Act does not envisage filing of an appeal against refusal of revocation. To substantiate his submission he has placed reliance on the decisions rendered in the cases of Ahmed Ebrahim Vorajee Vs. The Government of The Province of Bombay, ; Singeshwar Prasad and Another Vs. Mt. Surja Devi, ; Mulukh Raj Sharma Vs. Raj Narain Sharma and Others, ; Brij Bihari Mishra and others Vs. Vijai Shanker Mishra and others, ; Manbodhani vs. Ramswaroop, 1986 MPLJ 16 : 1985 MPWN 158 ; and Gaya Prasad Bhoi and Another Vs. Loknath Budhia Bhoi and Another, . To appreciate the rival submissions raised at the Bar, it is apposite to refer sections 383 and 384 of the Act. They read as under:- 383. Revocation of Certificate. Vijai Shanker Mishra and others, ; Manbodhani vs. Ramswaroop, 1986 MPLJ 16 : 1985 MPWN 158 ; and Gaya Prasad Bhoi and Another Vs. Loknath Budhia Bhoi and Another, . To appreciate the rival submissions raised at the Bar, it is apposite to refer sections 383 and 384 of the Act. They read as under:- 383. Revocation of Certificate. - A certificate granted under this Part may be revoked for any of the following cause, namely- (a) that the proceedings to obtain the certificate were defective in substance; (b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (d) that the certificate has become useless and inoperative through circumstances; (e) that a 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. 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 whom the certificate should be granted and direct the District Judge, on application being made therefore, 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 (5 of 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 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final. (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 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final. On a bare reading of section 384 of the Act it is manifest that refusal of revocation is not included in the language used and, therefore, it is luminously clear that such an order cannot be assailed by way of an appeal. In the case of Ahmed Ebrahim Vorajee (supra) it has been held as under:- An order on an application to revoke or cancel a succession certificate amounting to a refusal to revoke, does not fall u/s 384 and is not appealable. (quoted from the placitum) Similar view has been taken by the Patna High Court in the case of Singeshwar Prasad (supra). Calcutta High Court in the case of Mulukh Raj Sharma (supra) registered the view as under: Where the petitioner applied before the District Delegate for revocation of a succession certificate in favour of the opponent and this is the only prayer and the application is refused no appeal lies against the order of refusal to the District Judge." (quoted from the placitum) In the case of Brij Bihari Mishra (supra) the High Court of Allahabad expressed the view in the following terms: An appeal u/s 384 can be filed only against the order granting or refusing the certificate or an order revoking a certificate. The order which is challenged in this appeal is not of any of these types. In fact, it is an order refusing to revoke the certificate. An appeal against such an order is not permissible u/s 384. The order which is challenged in this appeal is not of any of these types. In fact, it is an order refusing to revoke the certificate. An appeal against such an order is not permissible u/s 384. This Court in the case of Manbodhani (supra) ruled thus: Sub-section (1) of section 384 reads as follows : "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 whom 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." Thus, on a plain construction of the sub-section, it is clear that an appeal is contemplated against an order, (a) granting a certificate, (b) refusing a certificate, and (c) revoking a certificate. The order refusing to revoke a certificate does not come under any of the three classes of orders specified in the section and as such not appealable. The High Court of Orissa in the case of Gaya Prasad Bhoi (supra) expressed as under: Appeal u/s 384 inter alia relates to refusal or revocation of a certificate under Part X of the Act. The provisions has application where an order refusing to grant a certificate or revoking a certificate is made. The Appellate Court has jurisdiction, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted, and direct the trial Court on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted. If there would not have been combined prayer for grant of certificate and for revocation, and the prayer would have been restricted to only revocation, the conclusions of the learned District Judge about non-maintainability would have been appropriate. (Emphasis supplied) From the aforesaid enunciation of law it is abundantly clear that the order refusing to revoke the Succession Certificate is not appealable. However, the High Court of Orissa carved out a distinction to the extent that if in the application for revocation there is a prayer for grant of certificate in favour of the applicant, under rejection of such application would be appealable. However, the High Court of Orissa carved out a distinction to the extent that if in the application for revocation there is a prayer for grant of certificate in favour of the applicant, under rejection of such application would be appealable. To find out whether such prayer was there in the application for revocation, I wanted the learned counsel to file the application which was preferred before the Court below seeking revocation and learned counsel for the non-applicants have filed the application before this Court. The prayer portion of the said application reads thus: Thus, prayer clause does not include grant of certificate in favour of the petitioner. In view of this the law laid down in the case of Gaya Prasad Bhoi (supra) does not render any assistance to the petitioner. In view of my preceding analysis, I am of the considered view that the appeal preferred by the petitioner was not maintainable before the learned Additional Sessions Judge and the view taken by him is impeccable and deserves the stamp of approval of this Court. However, as the petitioner had initially filed a civil revision against the original order he may challenge the said order if so advised, in accordance with law. Accordingly, I do not find any merit in this civil revision and the same is dismissed. Final Result : Dismissed