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2001 DIGILAW 356 (KAR)

S. PRATAP KUMAR v. THAMAS B. CHOUDI

2001-04-17

G.C.BHARUKA

body2001
G. C. BHARUKA, J. ( 1 ) THE crucial question involved herein is as to whether a second appeal can lie to this High Court against an order granting, refusing or revoking succession certificate sought to be obtained under Part X of the Indian Succession Act, 1925 (in short the Central Act)? ( 2 ) ACCORDING to the appellant, he is the brother of one Smt. S. Sugandha Neelavathy, who while still working in Government dispensary at Brucepet, Bellary, died on 27-9-1998. The present appellant and the 2nd respondent on the strength of an alleged registered Will dt. 13-9-1998 filed an application under S. 372 of the Central Act for grant of succession certificate in order to receive the service benefits of their sister. Similar application was also filed by the 1st respondent, who happens to be the husband of Smt. Sugandha Neelavathy. Both the application were heard by the Principal Civil Judge (Jr. Division), who by his order dt. 22-11-1997 rejected the application filed by the appellant along with the 2nd respondent and allowed the one filed by the husband of the deceased. The said order was questioned by the appellant by filing an appeal before the Principal Civil Judge (Sr. Dn, Bellary, but the same was also dismissed on 11-10-2000. ( 3 ) FACED with the aforesaid situation, the appellant has preferred the present second appeal before this Court. The Scrutiny Branch of this Court has taken a preliminary objection as to maintainability of this appeal on the ground that under S. 384 of the Central Act, only one appeal is maintainable and the same has already been availed by the appellant by filing it before the Civil Judge (Sr. Division ). Keeping in view the importance of the issue involved herein, I had called for a report from the Registrar (Judicial) and thereafter heard Ms. Vidya, learned counsel for the appellant at length. ( 4 ) IN order to appreciate the dimensions of the problem and seeking an answer thereto, one is required to closely examine the relevant provisions contained under the Central Act, Karnataka Civil Courts (Amendment) Act, 1976 (Karnataka Act 81/76), Karnataka Civil Courts (Second Amendment) Act, 1978 (Karnataka Act 28/1978), notification issued thereunder, Section 100 of the Code of Civil Procedure, 1908 and Article 254 of the Constitution of India. ( 5 ) PART X of the Central Act deals with grant of succession certificate. Section 371 of this Act provides that the District Judge within whose jurisdiction the deceased ordinarily resided, or, if at the time of his death he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant successioession certificate under this Act. Section 372, 373 and 374 provides the procedure for making an application for grant of succession certificate, its entertainment and the contents of the certificate to be granted. Section 384 of the central Act makes a provision for appeal, but it clearly provides for only one appeal. Section 388 of the Central Act has made provision for investiture of inferior Courts with jurisdiction of District Courts with the power to exercise the function of the District Judge under Part-X i. e. in relation to grant of succession certificate. ( 6 ) BY Ss. 4, 5 and 10 of the Karnataka Civil Courts (Amendment) Act, 1976 (Karnataka Act 81/76), The State Legislature had made three material amendments concerning Court"s jurisdiction and appeal provisions in relation to the proceedings under the Central Act. Subsequently, by Karnataka Civil Courts (Amendment) Act, 1978 (Act 8/78), Ss. 4, 5 and 10 of the Karnataka Act 81/76 were omitted by a further exercise, the State legislature passed Karnataka Civil Courts (Second Amendment) Act, 1978 (Karnataka Act 28/1978) for the very same object though with some material changes. ( 7 ) BY S. 2 of the last Amending Act 28 of 1978, clause (iv) of sub-sec. (1) of S. 23 of the Karnataka Civil Courts Act, 1964 (in short the 'civil Courts Act") was omitted and simultaneously a new S. 23-A was inserted therein which read as follows :- 23-A. Investiture of sub-ordinate Courts with jurisdiction of District Court under the Indian Succession Act, 1925.- (1) The High Court may, by notification, invest any Civil Judge or Munsiff, with such local limits and subject to such pecuniary and other limitations as may be specified in such notification with all or any of the powers of a District Judge under the Indian Succession Act, 1925 (Central Act 39 of 1925 ). (2) Any Civil Judge or Munsiff invested with powers under sub-section (1) shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred by the said Act upon the District Judge, and the provisions of the said Act relating to the District Judge shall apply to such Civil Judge or Munsiff, as the case may be, as if he were the District Judge :provided that every order made by the Civil Judge or the Munsiff by virtue of the powers conferred upon him under sub-sec. (1) shall be subject to appeal. (i) to the Court of Civil Judge when the order is passed by the Munsiff; (ii) to the District Court where the order is passed by a Civil Judge. (3) Every order passed on appeal under the proviso to sub-sec. (2) shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure, 1908,applicable to appeals from appellate decree. ( 8 ) BY the above Amending Act, Sec. 265 and 388 of the Central Act which had made provisions for delegation of powers of the District Judge in non-contentious cases arising under Chapter IV and in relation to grant of succession certificate under Part X were omitted. ( 9 ) PURSUANT to the above powers conferred on the High Court under the newly inserted S. 23-A of the Civil Courts Act, the High Court had issued notification published in the gazette dt. 29-3-1979 which reads as under. "no. GOB 460/78. In exercise of the powers conferred under sub-sec. (1) of S. 23a of the Karnataka Civil Courts Act, 1964, (Karnataka Act 28 of 1978), the High Court of Karnataka hereby invests all the Officers Presiding over the Courts of Civil Judges and Munsiffs in the State, with all or any of the powers of a District Judge, under S. 388 of the Indian Succession Act, 1925, within the limits of their respective territorial jurisdiction and respective pecuniary jurisdiction. " ( 10 ) REFERENCE to S. 388 of the Central Act in the above notification appears to be an inadvertent error since this section had been omitted by State Amending Act 28/1978, as already noticed above. The intention appears to be to clothe Civil Judge (Sr. Dn) and Civil Judge (Jr. " ( 10 ) REFERENCE to S. 388 of the Central Act in the above notification appears to be an inadvertent error since this section had been omitted by State Amending Act 28/1978, as already noticed above. The intention appears to be to clothe Civil Judge (Sr. Dn) and Civil Judge (Jr. Dn.) with the power of the District Judge under S. 317 of Part X of the Central Act which deals with grant of succession certificate only. ( 11 ) CURIOUSLY, S. 384 of the Central Act which has made provisions for appeals relating to the orders concerning succession certificate has neither been amended or omitted by the State amendment, though inconsistent provisions in this regard have been made in S. 23-A of the Civil Courts Act. ( 12 ) BEFORE proceeding further, to keep the records straight and beyond the spell of any further confusion, I may notice here that in view of S. 30-B of the Civil Courts Act, as inserted by Karnataka Act 16/1996, the words "court of Munsiff" and "court of Civil Judge" (hereinafter used in any statutory provisions) as referred to has to be construed as "court of Civil Judge (Junior Division)" and "court of Civil Judge (Senior Division)". for ready reference, this section is being reproduced hereunder.-30-B. Construction of references to Civil Judge, Court of the Civil Judge, Munsiff and Munsiff"s Court in any judgment and decree, etc.- Unless the context otherwise requires, any reference made to "civil Judge", "court of the Civil Judge", "mnsiff" or "munsiff"s Court" in any judgment, decree, order or other instrument, prior to the date of commencement of the Karnataka Civil Courts (Amendment) Act, 1996, shall respectively be construed as reference to "civil Judge (Senior Division)", "civil Judge (Junior Division)" and "court of the Civil Judge (Junior Division ). ( 13 ) IN order to ascertain the inconsistency in the Central and the Civil Courts Act relating to appeal provisions, one has to have a look at the provisions of Section 384 of the Central Act, which reads as under.-SEC. 384. ( 13 ) IN order to ascertain the inconsistency in the Central and the Civil Courts Act relating to appeal provisions, one has to have a look at the provisions of Section 384 of the Central Act, which reads as under.-SEC. 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-sec. (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-sec. (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 S. 141 of that Code, an order of a District Judge under this Part shall be final. ( 14 ) ADMITTEDLY, the State Amending Act 28/78 has received the assent of the President on 22-11-1978. Further, the legislative field of Wills, intestacy and succession is in the Concurrent list of the seventh schedule at its Entry 5, therefore in view of Article 254 (2) of the Constitution of India, in case of inconsistency between the Central Act and the Civil Courts Act, the latter having received the assent of the President has to prevail in this State. ( 15 ) NOW on examination of the question at hand in the above legislative and constitutional background it becomes clear that under the provisions to sub-sec. (2) of S. 23-A of the Civil Courts Act, if an order has been passed by Munsiff, (now Civil Judge (Jr. Dn.), then appeal will lie to the Civil Judge (Sr. Dn ). Similarly, if an order at the first instance has been passed by the Civil Judge (Sr. Dn), then appeal will lie to the District Judge. Further, in view of sub-sec. Dn.), then appeal will lie to the Civil Judge (Sr. Dn ). Similarly, if an order at the first instance has been passed by the Civil Judge (Sr. Dn), then appeal will lie to the District Judge. Further, in view of sub-sec. (3) of S. 23-A read with S. 100 CPC, if the order at the first instance is passed by a District Judge, then appeal will lie to the High Court. But, if the appeal is filed either to the Civil Judge (Sr. Dn) or District Judge as the case may be, then a second appeal will lie to the High Court against the first appellate order passed by either of the said subordinate Courts. ( 16 ) FOR the aforesaid reasons, it is held that the present second appeal before this Court is very much maintainable. Order accordingly. --- *** --- .