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2000 DIGILAW 991 (MP)

RAMESHCHAND SRIVASTAVA v. SHAKUNTALA DEVI

2000-09-13

S.P.SRIVASTAVA

body2000
S. P. SRIVASTAVA, J. ( 1 ) THIS appeal by Rameshchandra Shrivastava has been filed challenging the judgment and order rejecting his application filed under Section 372 of the Indian Succession Act seeking the grant of a succession certificate in respect of the various amounts of money which had been left behind by Smt. Sushil Devi Shrivastava after her death. ( 2 ) AN objection was filed by Smt. Shakuntala Devi, the present respondent No. ,1 claiming herself to be the daughter and only heir of the deceased, Smt. Sushila Devi seeking the succession certificate in her favour indicating further that she was ready to deposit the required fee for the purpose. This objection was filed on 9-1-1986. ( 3 ) DURING the pendency of the aforesaid application filed by the present appellant, Prakash Chand, the respondent No. 2, in the present appeal had filed an other objection on 29-6-1987 disputing the claim of the present appellant and further praying that while rejecting the application for the grant of the succession certificate filed by Rames-chand, the said succession certificate may be issued in favour of the objector, Prakash Chand. ( 4 ) NONE has appeared in support of the appeal. However, the learned Counsel representing the cross-objectors have been heard in support of their cross-objections. I have also carefully perused the record. The appeal as well as the cross-objections are being disposed of finally by this common order. ( 5 ) THE Court below after taking into consideration the facts and circumstances brought on record found that Smt. Sushila Devi was married to Khalak Singh. The aforesaid Khalak Singh was the real brother of Shambusingh and Bishambardayal. All the three brothers died much before the death of Smt. Sushila Devi. Khalak Singh had two wives. Smt. Basanta Bai and Smt. Sushila Devi. Sushila Devi had died issueless. Shakuntala Devi, the claimant was born out of the wedlock between Khalak Singh and Basanta Bai. Ramesh Chand is the son of Shambushingh, the brother of Khalak Singh while Prakash Chand is the son of Bishambardayal, the other brother of Khalak Singh. ( 6 ) THE trial Court on the aforesaid findings came to the conclusion that in the presence of Shakuntala Devi, neither Prakash Chand nor Ramesh Chand could be held to be entitled to any succession certificate as prayed for. ( 6 ) THE trial Court on the aforesaid findings came to the conclusion that in the presence of Shakuntala Devi, neither Prakash Chand nor Ramesh Chand could be held to be entitled to any succession certificate as prayed for. However, the relief claimed by Shakuntala Devi was denied on the ground that she had not appeared in person to depose before the trial Court in support of her claim and the affidavit filed by her in support of her claim could not be held to be sufficient for the grant of the succession certificate as the other applicants had no opportunity to cross-examine her. It was also observed that the succession certificate could not be issued on the basis of an affidavit. ( 7 ) PRAKASH Chand as well as Shakuntala Devi have filed cross-objections challenging the order passed by the trial Court rejecting their claim in regard to get the succession certificate in question issued in their favour. ( 8 ) IT may be noticed that during the pendency of the case, Ramesh Chand was examined by the trial Court on 24-9-1988. At that time he was holding the post of Auditor in the Officer of the Accountant General, Gwalior. In paragraph 2 of his deposition, he had admitted in categorical terms that Smt. Sushila Devi was the wife of Khalak Singh and she had died issueless. He also admitted in clear and categorical terms that Basanta Bai had been married to Khalak Singh and a daughter Shakuntala Devi had been born out of this wedlock. Sushila Devi, however, died issueless. In paragraph 13 of his deposition, he gave up his claim stating that the daughter of Khalak Singh was entitled to get the entire amount left by Sushila Devi as Shakuntala Devi was the daughter of Khalak Singh. He had also admitted that Khalak Singh had died in the year 1975. ( 9 ) PRAKASH Chand was examined in 22-11-1994. He had based his claim on the strength of a nomination, alleged to have been made in his favour by Smt. Sushila Devi. He had also admitted that Sushila Devi was issueless. He had further admitted that Sushila Devi was married to Khalak Singh. It was also admitted that Shakuntala Devi was the daughter of Khalak Singh born out of the wedlock of Khalak Singh and Basanta Bai. He had also admitted that Sushila Devi was issueless. He had further admitted that Sushila Devi was married to Khalak Singh. It was also admitted that Shakuntala Devi was the daughter of Khalak Singh born out of the wedlock of Khalak Singh and Basanta Bai. It was further admitted that Sushila Devi was the second wife of Kahalak Singh. He had also stated in his cross-examination that Shakuntala Devi was the only daughter of Khalak Singh. She had no brother or sister. It was also stated that the name of the mother of Shakuntala Devi was Basanta Bai. Khalak Singh married Sushila Devi after the death of her mother. The husband of Shakuntala Devi was posted as a Deputy Collector. ( 10 ) FROM the application filed by Prakash Chand dated 20-1-1995 before the trial Court it is apparent that the husband of Shakuntala Devi, on that date was posted as Sub-Divisional Magistrate, Gohad, district Bhind. ( 11 ) IT may be noticed that on 31-1-1997, an application had been filed on behalf of Shakuntala Devi claiming that she was an old lady and was not keeping good health and she was residing in Mehgaon, district Bhind, and was suffering from Asthma also. She had prayed for fixing a date after the winters so that she may lead her evidence. She filed an affidavit on 2-4-1997 that she had come to make her deposition on 24-2-1997 which was the date fixed for her evidence but she could reach the Court late and by the time she reached the Court, the case had been adjourned. In her affidavit, she had stated that her father, Khalak Singh had two brothers, Shambhudayal and Bishambhardayal and she was the only daughter of Khalak Singh. ( 12 ) IN the present case, on the facts found by the trial Court, it is apparent that Shakuntala Devi was entitled to the grant of the succession certificate as prayed for by her. ( 13 ) TAKING into consideration the implications arising under Section 15 of the Hindu Succession Act, 1956 it is apparent that it was not in dispute that the various amounts of money in respect whereof, the succession certificate was being claimed fell within the category of the property of a female Hindu dying intetate. ( 13 ) TAKING into consideration the implications arising under Section 15 of the Hindu Succession Act, 1956 it is apparent that it was not in dispute that the various amounts of money in respect whereof, the succession certificate was being claimed fell within the category of the property of a female Hindu dying intetate. Sushila Devi had died issueless and intestate and no heir as envisaged under Section 15 (1) (a) of the Hindu Succession Act, was available when the succession opened. As provided under Section 15 (1) of the said Act, the property devolved upon the heirs of the husband. It was further not in dispute that Shakuntala Devi was the only daughter of Khalak Singh and the marriage of Khalak Singh with Sushila Devi stood established. It is therefore, obvious that in the presence of Shakuntala Devi the other applicants, i. e. , Rameshchand and Prakashchand stood automatically excluded. ( 14 ) IT may further be noticed that the provisions contained in Section 373 (4) of the Indian Succession Act, 1925, stipulate that when there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge, may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. ( 15 ) IT is, therefore, obvious that even in a case where there are more than one applicants for the succession certificate, only the certificate should be granted as the grant of two or more succession certificates is not contemplated. But while granting the certificate, it ought to be ensured that the interest of all the applicants which is found to have been established is protected. ( 16 ) HOWEVER, it should not be lost sight of that the proceeding under Section 372 of the Indian Succession Act, 1925, is only a summary proceeding and any decision therein in regard to the entitlement to the property left by the deceased dying intestate and the grant of the certificate to particular person or applicant is always subject to the decision of a civil Court of competent jurisdiction in a regular suit. ( 17 ) IN the present case, the ground on which the trial Court has refused to grant the succession certificate to Smt. Shakuntala Devi is that she had not appeared in the Court and examined herself in support of her case. ( 18 ) THE withholding of the grant of succession certificate to Smt. Shakuntala Devi in the peculiar facts and circumstances of the present case considering the implications arising under Section 373 (4) of the Indian Succession Act, 1925, as well as the facts found and proved to have been established on the basis of the evidence led in the case by Rameschand and Prakashchand cannot be held to be justified. When all the basic necessary facts enabling the trial Court to come to a definite conclusion in regard to the entitlement of Smt. Shakuntala Devi to have the succession certificate as prayed for, had been found and established, there could be no impediment in the grant of the succession certificate to her. The view to the contrary taken by the Court below is not supportable in law and being not sustainable in law, the finding in this regard is reversed. ( 19 ) IN the result, the appeal filed by Rameshchand and the cross-objection filed by Prakashchand are dismissed. The cross-objection filed on behalf of the Smt. Shakuntala Devi succeeds. The impugned order passed by the trial Court is modified and it is directed that the trial Court shall issue the succession certificate to Smt. Shakuntala Devi is sought for subject to the payment of requisite Court-fee as indicated in her application (objection) dated 9-1-1986. Order accordingly. .