Research › Search › Judgment

Gauhati High Court · body

2000 DIGILAW 98 (GAU)

Thiyam Ningol Chingsubam Ongbi Modhumati Devi v. Chingsubam Ongbi Mangi Devi

2000-03-06

H.K.KUMAR SINGH

body2000
Heard Mr. M.Gourahari Singh, learned counsel for the appellant and also Mr. Gogon Chandra Tongbram, learned counsel for the respondent. 2. On the death of one Ch Dinamani Singh while in service as Head Lineman in the Electricity Department, Govt of Manipur on 30.10.97, the respondents herein approached the District Court, Manipur East for granting of Succession Certificate in respect of the debts and securities left by the aforesaid deceased Govt servant, and after hearing the petition, the learned District Judge passed a judgment and order on 13.12.98 in DS No. 4 of 1998 thereby granting the Succession Certificate in favour of the respondent No. l. Thereafter the present appellant filed an application under section 383 of the Indian Succession Act praying for revocation of the aforesaid certificate issued in favour of the respondent, and after hearing the parties, the learned Additional District Court, Manipur East (to whom the said proceeding was transferred) rejected the aforesaid application filed by the present appellant by the impugned judgment and order dated 12.3.99. 3. At the outset, Mr. Gogon Chandra Tongbram has raised a preliminary objection with regard to the maintainability of the present appeal. According to the learned counsel an appeal is not provided for under the provisions of Indian Succession Act against an order passed by a Court rejecting the application for revoking a succession certificate issued earlier. On the other hand, Mr. M. Gourahari. Singh, the learned counsel for the appellant has submitted that the appeal lies. 4. An appeal is a creature of the statute. No appeal lies against any order passed by any authority exercising any power under any law unless it is provided for by the statute. Under section 384 of the Indian Succession Act the provision of appeal is provided for. The aforesaid provision is reproduced herein below : “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 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.” 5. From a mere perusal of the aforesaid provision, it would be clear that an appeal lies against an order revoking a certificate issued but there is no mention of any appeal against an order refusing to revoke a Succession Certificate issued earlier. Thus, I am of the opinion that the present appeal which has been filed against an impugned order stated above rejecting an application for revoking the Succession Certificate does not lie. Under sub-section (3) of the aforesaid section, it appears that a revision may lie against an order of the Court refusing an application for revocation of a Succession Certificate in accordance with the provisions provided for under the Code of Civil Procedure read with section 141 of that Code. Here also, I do not find any ground for interfering with the order passed by the learned trial Court within the ambit of section 115 (provisions of revision) of the Civil Procedure Code as from perusal of the record of the trial Court, I find that there is no question of exercise of jurisdiction not vested by law, or non exercise of jurisdiction vested by law or any illegality or material irregular having been committed in the exercise of the jurisdiction. On the contrary I find that the appellant has admitted at para 2 of the application for revocation that the respondent No. 1 was the wife of the deceased Govt servant and also a document at Ext B/l produced before the Court indicates that the appellant here again admitted that the respondent No. 1 was wife (second wife according to the present appellant) of the Govt servant and the sole basis on which the appellant prayed for revocation of the Succession Certificate is on the ground that the respondent was not the legally married wife of the deceased Govt servant. 6. 6. The Court exercising the testamentary jurisdiction only exercises within the ambit and extend of its jurisdiction for the purpose of deciding the ground of Succession Certificate and if the appellant has any cause of action for declaration of her status or title to any property, she may approach the proper forum. Accordingly, I see no ground in this present appeal and also do not see any ground converting this appeal to one of revision. The appeal fails and stands dismissed. No costs.