Research › Search › Judgment

Gujarat High Court · body

2000 DIGILAW 472 (GUJ)

Purnimaben D/o Ishudas Parmar Thro'her Poa Ashwinbhai v. Urmilaben Wd/o Vasant Willium Patel

2000-06-12

M.S.PARIKH

body2000
ORDER : M.S. Parikh, J. The appellant - Purnimaben, D/o. Ishudas Parmar has sought to file the present appeal challenging the impugned judgment and order dated 16/3/2000 rendered by the learned 6th Joint Civil Judge (S.D.), Vadodara in Succession Misc. Application No. 326 of 1999 filed by respondent in the said Court. The learned trial Judge has directed issuance of succession certificate in respect of the amount stated in para. 3 of the application in favour of the applicant no. 1 - Urmilaben D/o. Vasant Willium Patel on payment of requisite court fee stamp. 2. The appellant has also moved Civil Application No. 2067 of 2000 in the aforesaid First Appeal praying for interim stay of the impugned judgment and order of issuance of succession certificate in favour of the 1st respondent. This Court issued notice to the respondents by the order dated 29/3/2000 and the respondents in reply have raised a preliminary objection that the First Appeal could be filed before the learned District Judge, Vadodara and could not have been filed before this Court. It is this preliminary objection which merits consideration at the threshold. 3. Ld. advocate appearing for the respondents drew the attention of this Court to the provision contained in section 388 of the Indian Succession Act, 1925 (for short 'the Act'). Laying stress upon the proviso to sub-section (2) of section 388 of the Act learned advocate submitted that the appeal could have been filed not to this Court, but to the Court of the District Judge at Vadodara. Ld. advocate appearing for the appellant would submit that there is no fresh notification u/S. 388 of the Act, which would call for application of proviso to section 388 (2). 4. In order to appreciate the preliminary objection and answer thereto as aforesaid, it would be appropriate to reproduce the relevant provisions of the Act in the first instance and then the relevant notifications. It is not in dispute that by virtue of provision contained in Part-X beginning with section 370 of the Act a succession certificate can be issued in respect of any debt or security of a deceased as referred to in the said provisions. By virtue of section 371 of the Act the District Judge, within whose jurisdiction the deceased ordinarily resided at the time of his death, may grant such certificate. By virtue of section 371 of the Act the District Judge, within whose jurisdiction the deceased ordinarily resided at the time of his death, may grant such certificate. A detailed procedure has been set out in section 373 of the Act. As and when the proceedings for issuance of succession certificate would terminate either by way of direction to grant succession certificate or by way of dismissal of application for succession certificate, the aggrieved party is invested with right of appeal u/S. 384 of the Act, which would read as under:- "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 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. (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." It would, therefore, be clear that when the District Judge has either granted or refused to grant succession certificate under the relevant provisions of the Act as appearing in Part-X thereof, an appeal would lie to the High Court. However, there is no an exception carved out u/S. 388 of the Act, which would read as under:- "388. Investiture of inferior Courts with jurisdiction of District Court for purpose of this Act.- (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. Investiture of inferior Courts with jurisdiction of District Court for purpose of this Act.- (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge : Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge. (3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject 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, be final. (4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area. (5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area. (6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge." It can be seen from the proviso that whenever any inferior Court is invested with the power of the District Judge in respect of the grant or otherwise of the succession certificate under the relevant provisions of Part-X of the Act and such inferior Court has rendered judgment and order in respect thereof, an appeal would lie to the District Judge and not to the High Court. It has been submitted by Mr. Ajmera that there is no notification u/S. 388 (1) of the Act investing any Court inferior to grade of District Judge with powers to exercise the functions of a District Judge under the aforesaid Part of the Act. In reply Mr. R.P. Sagar, learned advocate for the respondents has in the first instance made reference to a notification appearing in Bombay Rules and Orders under Central Acts (1835 - 1925), Volume I (1953 edition) appearing at page 1259. The notification would read as under :- "In exercise of the power conferred on Local Governments by section 26(1) of Act VII of 1889, the Government in Council is pleased to invest with the functions of a District Court under the said Act the Courts of all the Subordinate Judges in this State which have not been already so invested." Mr. Sagar also read following provision appearing in the Civil Manual (Volume I) :- "254. Attention is invited to Government Notification No. 5861 dated the 25th October, 1890, issued under section 26 (1) of the Succession Certificate Act (VII of 1889), and printed at pages 1259 of the Bombay Local Rules and Orders under Central Acts, Volume I, 1953 edition, under which all Civil Judges in this State have for the purposes of the said Act been invested with the functions of a District Court. The Notification has also the effect of investing Civil Judges with the power to hear applications made under section 2 of Bombay Regulation, VIII of 1827, Although the Succession Certificate Act, 1889, has been repealed, the Notification dated 25th October, 1890, remains in force by virtue of section 24 of the General Clauses Act, 1897. Applications under section 2 of Regulation VIII of 1827 can be entertained by Civil Judges directly or when transferred to them by the District Judges." 5. Mr. Sagar then read the note contained at the opening part of page 805 below section 388 of the Act in Paruck's 'The Indian Succession Act', 8th edition by S.K. Roy Chowdhury and H.K. Saharay. The note would read as 'This is section 26 of the Succession Certificate Act VII of 1889. The word "State" is substituted for the word "Province" (Adaptation Order, 1950).' Mr. Sagar finally read section 24 of the General Clauses Act, 1897 by virtue of which where any Central Act or Regulation is after the commencement of the General Clauses Act repealed and re-enacted with or without modification, any appointment, notification, order, scheme, rule, form, or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been or issued under the provisions so re-enacted unless and until the same is superseded. 6. It has not been shown to this Court as to whether any fresh notification setting at naught the above notification has been issued after the Act (the Indian Succession Act, 1925) saw the light of the day. In fact the provision as appearing in the Civil Manual would indicate that the notification of 1890 still holds good and the only question is whether the same would be operative by virtue of section 388 (1) of the Act. In my considered opinion there is no reason to hold that the said notification is not operative. The inferior Courts clearly appear to have exercised the jurisdiction by virtue of the said notification which has been recorded in the Civil Manual. It would, therefore, be clear that the appeal before this Court would be incompetent. In my considered opinion there is no reason to hold that the said notification is not operative. The inferior Courts clearly appear to have exercised the jurisdiction by virtue of the said notification which has been recorded in the Civil Manual. It would, therefore, be clear that the appeal before this Court would be incompetent. Even otherwise by virtue of the proviso to section 388 (2) of the Act the appeal shall necessarily have to be filed before the Court of the District Judge and not to this Court. 7. In the result, following order is required to be passed :- I. The appeal is rejected with a rider that it would be open to the appellant to file an appropriate appeal before the learned District Judge, vadodara, within two weeks from today. In case the appeal is filed accordingly by the appellant before the learned District Judge, the same shall be entertained. II. The Civil Application shall stand dismissed and notice shall stand discharged in the said Civil Application with no order as to cost with a rider that interim relief, if any, operating as on today, shall operate for a period of three weeks. It will be open to the appellant to move appropriate application for interim relief in the appeal to be filed before the learned District Judge, Vadodara and the same shall be dealt with and decided in accordance with law after hearing both the parties, without being influenced in any manner by this order. Certified copy of the judgment and order of the trial Court shall be returned to the appellant. Appeal rejected.