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2002 DIGILAW 216 (KAR)

PADMA v. R. MEENAKSHI SUNDARI

2002-03-18

V.G.SABHAHIT

body2002
V. G. SABHAHIT, J. ( 1 ) THE facts of the case in brief leading upto this appeal are as follows: the parties would be referred to with reference to the rank before the probate Court. P and SC 6/91 was filed by petitioners 1 and 2 averring that first petitioner is the legally wedded wife of late K. H. Ganesh and second petitioner is the son born out of the said wedlock and K. H. Ganesh died on 6-5-1990 at Kothigere of Kunigal Taluk while he was in service as a clerk in Government High School, Nagasandra, KG. Temple, gubbi Taluk. It is averred that by suppressing the facts and misrepresenting the Court, respondents 1 to 3 filed an application for issue of succession Certificate 6/90 and obtained the same on 24-1-1991 and the said certificate has been obtained by defective subsistence in the petition, that is giving wrong information about the relationship with the deceased, giving false suggestion and concealment of facts and making untrue allegations and petitioners are the only persons related to the deceased who are entitled to succession certificate and wherefore, they have sought for revocation of the succession certificate issued to the respondents in P and SC 6/90, dated 24-1-1991 under Section 383 of the indian Succession Act. ( 2 ) THE petition was resisted by respondents 1 to 3 by contending that p and SC 6/90 was filed and after due proceedings, succession certificate has been granted by order dated 24-1-1991, respondent 1 is the legally wedded wife of K. H. Ganesh and that respondents 2 and 3 are her children out of the said wedlock and she has not suppressed any fact and no ground is made out for revocation of the succession certificate granted in favour of respondents. ( 3 ) THE first and second petitioners filed an application for issue of succession certificate in P and SC 1/91 which was filed before the District court and the same was returned for presentation to the Civil court and on presentation to the Civil Court same was numbered as P and SC 7/91 on the file of Additional Civil Judge, Tumkur, wherein the petitioners 1 and 2 sought for issue of succession certificate under Section 372 of the Succession Act reiterating the averments made in P and sc 6/91. The said application was also resisted by respondents 1 to 3 reiterating the objections filed in P and SC 6/91. Both the petitions P and SC 6/91 and 7/91 were clubbed and common evidence was recorded. ( 4 ) ON behalf of the petitioners, the first petitioner was examined as p. W. 1 and she also examined P. Ws. 2 to 6 and got marked Exs. P. 1 to p. 8. On behalf of the respondents, the first respondent was examined as r. W. 1 and was also examined R. Ws. 2 and 3 and got marked Exs. R. 1 to R. 3. ( 5 ) THE learned Probate Court by its order dated 30-6-1993 held that petitioner 1 was married to K. H. Ganesh on 26-4-1982 and petitioner 2 is the son of the first petitioner out of the said wedlock and petitioner 3 who was subsequently impleaded is the mother of the deceased KH. Ganesh. It further held having regard to the evidence adduced by the respondents that respondents have also proved that respondent 1 was married to K. H. Ganesh on 25-7-1984 and respondents 2 and 3 are the children born out of the said wedlock between the first respondent and k. H. Ganesh and wherefore, since the marriage of the first respondent with K. H. Ganesh was during the subsistence of the marriage of KH. Ganesh with the first petitioner, the said marriage was void and wherefore, the respondents were not entitled to succession certificate and accordingly, allowed P and SC Nos. 6/91 and 7/91 and revoked the succession certificate issued in favour of respondents in P and SC 6/91 dated 24-1-1991 and allowed 7/91 and held that petitioners are entitled to grant of succession certificate in respect of the estate of the deceased k. H. Ganesh and directed the petitioners to furnish security to the extent of Rs. 1,00,000/- (Rupees one lakh only ). ( 6 ) BEING aggrieved by the order passed in P and SC Nos. 6/91 and 7/91, the respondents 1 to 3 preferred Miscellaneous Appeal No. 45 of 1993 on the file of District Judge, Tumkur. The Appellate Court by its order dated 17-4-1998 upheld the judgment passed by the Probate Court in P and SC Nos. 6/91 and 7/91 and dismissed the appeal. 6/91 and 7/91, the respondents 1 to 3 preferred Miscellaneous Appeal No. 45 of 1993 on the file of District Judge, Tumkur. The Appellate Court by its order dated 17-4-1998 upheld the judgment passed by the Probate Court in P and SC Nos. 6/91 and 7/91 and dismissed the appeal. ( 7 ) BEING aggrieved by the said order of the District Judge, this appeal is preferred by respondents 1 to 3. ( 8 ) I have heard the learned Counsel appearing for the appellants and the learned Counsel appearing for respondent 3. Respondents 1 and 2 though served with notice have not chosen to appear before this Court. ( 9 ) HAVING regard to the contentions urged, the points that arise for determination in this appeal are: (1) Whether the Courts below were justified in holding that the probate issued in favour of the appellants herein in P and SC 6/91, dated 24-1-1991 was liable to be revoked under Section 383 of the indian Succession Act? (2) Whether the Courts below were justified in holding that respondents 1 and 2 herein are entitled to succession certificate as sought for in P and SC 7/91? (3) Whether the judgment passed by the Courts below calls for interference in this appeal? (4) What order? and I answer the above points as follows: point No. (1): In the negative; point No. (2): In the negative; point No. (3): In the affirmative; point No. (4): As per the final order for the following: reasons ( 10 ) POINTS (1) to (3 ). These points are considered together since they are interconnected and to avoid repetition. The fact that the appel- lants herein had filed P and SC 6/90 for issue of succession certificate which was allowed after due proceedings on 24-1-1991 is not in dispute and what is sought for in P and SC 6/91 is for revocation of the succession certificate granted in favour of the appellants herein and P and SC 7/91 was filed for issue of succession certificate in favour of respondents 1 and 2 herein. It is clear from the provisions of Section 383 of the succession Act that, a succession certificate granted may be revoked for any of the following causes:" (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". ( 11 ) THE grounds upon which succession certificate issued in P and SC 6/90 is sought to be revoked as per the averment made in the petition P and SC 6/91 is as follows:"by suppressing the facts and misrepresenting, this Hon'ble court the respondent in P and SC 6/91 i. e. , Smt. Padma and her children have obtained the succession certificate from this Hon'ble court in P and SC 6/90, dated 24-1-1991. Therefore, the following are the causes for the revocation of the said succession certificate, namely, (a) By defective substance in the petition i. e. , giving wrong information about the relationship with the deceased; (b) Giving false suggestion and concealment of facts; (c) Making untrue allegations". ( 12 ) IT is clear from the perusal of the points framed for determination by the Probate Court that the Probate Court has proceeded on the basis to find out as to whether the petitioners were the only legal representatives who are entitled to succession certificate and thereafter, it has proceeded to find out as to whether the succession certificate already granted to the respondents in P and SC 6/90 is liable to be revoked. It is well-settled that when once the succession certificate is granted the same can be revoked only on the proof of ground mentioned in Section 383 of the Succession Act and in the present case, apart from making the above said averments as the grounds for revocation of succession certificate, tne same nave not at all been substantiated by the petitioners. On the other hand, both the Courts below have proceeded to consider as to whether the first petitioner proves that she was the legally wedded wife of K. H. Ganesh and as to whether the marriage of the first respondent with KH. Ganesh was valid and thereafter has proceeded to hold that the petitioners would be entitled to succession certificate. ( 13 ) IN view of the above said provision of law, it is clear that the approach of the Courts below is clearly erroneous. Unless the Courts below came to the conclusion that the petitioners had made out one of the grounds for revocation of succession certificate already granted in favour of the respondents in P and SC No. 6/90, dated 24-1-1991, the question of issuing another succession certificate in F and SC 7/91 would not arise. Both the Courts below have held that petitioners have proved that the first petitioner was married to K. H. Ganesh on 26-4-1982 and petitioner 2 is the son born out of the said wedlock and petitioner 3 who was subsequently impleaded is the mother of the deceased and respondents have also proved that respondent 1 was married to KH. Ganesh on 25-7-1984 and respondents 2 and 3 were born out of the said wedlock and the Courts below having held so, have proceeded on the basis that since the marriage of the first respondent with KH. Ganesh on 25-7-1984 was during the subsistence of the marriage of KH. Ganesh with first petitioner, the second marriage with the first respondent was void and wherefore, the first petitioner would be entitled to succession certificate. The Courts below have also failed to note that, though even according to the finding of the Courts the marriage of the first respondent with k. H. Ganesh was void as the same was during the subsistence of the marriage of the first petitioner with KH. The Courts below have also failed to note that, though even according to the finding of the Courts the marriage of the first respondent with k. H. Ganesh was void as the same was during the subsistence of the marriage of the first petitioner with KH. Ganesh, they ought to have considered as to whether Respondents 2 and 3 who are the children born out of the said wedlock are entitled to succession certificate along with the petitioners. Further, it is clear from the perusal of the oral and documentary evidence on record as also the order passed by the Courts below that the only ground assigned by the Probate Court for revocation of the succession certificate granted in P and SC 6/90, dated 24-1-1991 is that the fact KH. Ganesh has left behind his mother who is impleaded as petitioner 3 in P and SC 6/91 and that respondents have falsely averred in P and SC 6/91 that they are the only legal representatives of the deceased KH. Ganesh who are entitled to succession certificate and hence. The succession certificate granted in P and SC 6/91 was liable to be set aside and no other reason whatever is assigned by the Probate court for revoking the succession certificate and the Courts below have relied mainly upon the evidence of P. W. 6 who is the mother of the deceased and has been subsequently impleaded as petitioner 3 in P and sc 6/90 and who is arrayed as respondent 3 in this appeal. During the pendency of this appeal, respondent 3 who is the mother of the deceased has filed affidavit averring as follows:"i most humbly submit that the deceased KH. Ganesh is my son, who was working as FDA in Government High School, nagasandra, KG. Temple, Gubbi Taluk, has expired on 6-5-1990. I further humbly submit that the appellant 1, Smt. Padma is the first legally wedded wife of the deceased K. H. Ganesh. I myself has performed the marriage of my son K. H. Ganesh with the appellant 1, Smt. Padma. Out of their wedlock the appellants 2 and 3 were born. The respondent 1 is not the legally wedded wife of my son deceased K. H. Ganesh. I myself has performed the marriage of my son K. H. Ganesh with the appellant 1, Smt. Padma. Out of their wedlock the appellants 2 and 3 were born. The respondent 1 is not the legally wedded wife of my son deceased K. H. Ganesh. When the case was pending before the Trial Court, the Respondent 1 and her followers have threatened me and they have further forced me to give evidence stating that tbe respondent 1 is the first legally wedded wife because of their threat. I being an old lady has stated that the respondent 1 is first legally wedded wife. On the other hand, the appellant 1 is the first legally wedded wife. To prove this contention, the marriage card, voters list, official records regarding the nomination made by her husband, the KGID policy, sterilisation certificate, wherein the appellant 1's husband has declared the appellant 1 as his wife, public notice issued in kannada Daily Newspaper "sagadu". All these documents have been produced before the Trial Court, once again I make it clear that the appellant 1 being the first legally wedded wife and I myself have performed their marriage. Hence, the succession certificate may be issued in favour of the appellant 1 and all service benefits and other consequential benefits may be given to the appellant 1. Hence, this affidavit is filed in the interest of justice and equity". The above said averments made in the affidavit of respondent 3 is not controverted by respondents 1 and 2 as they have not chosen to appear before this Court, though duly served with notice of appeal. ( 14 ) IN view of the above said uncontroverted averments made in the affidavit of respondent 3 who is examined as P. W. 6 before the Probate court it is clear that the evidence of P. W. 6 has to be considered in the light of the affidavit filed in this appeal. It is well-settled that the proceedings under Section 372 of the Succession Act for grant of succession certificate is summary in nature and even if the evidence is led, the finding given therein would not operate as res judicata and the scope of enquiry is very much limited and the disputed question of status of the parties cannot be gone into in the application for grant of succession certificate. Section 387 of the Succession Act reads as follows:"387. Section 387 of the Succession Act reads as follows:"387. Effect of decisions under this Act and liability of holder of certificate thereunder. No decision under his part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties and nothing in this part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto". ( 15 ) IT has been held by the Hon'ble Supreme Court in Joginder Pal v indian Red Cross Society and Others, after referring to the provisions of part X of the Succession Act dealing with succession certificates as follows:"these sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus section 387 permits the filing of a suit or other proceeding even though a succession certificate might have been granted". "17. In view of the specific provisions of law it is not possible to accept Mr. Sohal's submissions. Section 387 specifically permits the 2nd (sic 1st) respondent to file a subsequent suit. Merely because issues were raised and/or evidence was led, does not mean that the findings given thereunder are final and operate as resjudicata. Even in summary proceedings issues can be raised and/or evidence can be led. The proceedings remain summary even though the Court may, in its discretion, permit leading of evidence and raising of issues. So in a subsequent suit the crucial issues must be decided afresh untrammelled or uninfluenced by any finding made in the proceedings for grant of succession certificate". ( 16 ) IN the case of Madhvi Amma. The proceedings remain summary even though the Court may, in its discretion, permit leading of evidence and raising of issues. So in a subsequent suit the crucial issues must be decided afresh untrammelled or uninfluenced by any finding made in the proceedings for grant of succession certificate". ( 16 ) IN the case of Madhvi Amma. Bhawani Amma v Kunjikutty Pillai meenakshi Pillai, Hon'ble Supreme Court after referring to the provisions of the Succession Act relating to issue of succession certificate has held as follows:"this sub-section reveals two things: first, adjudication is in summary proceedings; and secondly, if the question of law and facts are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words, the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that the mere grant of such certificate or a decision in such proceedings would constitute to be a decision on an issue finally decided between the parties. If that be so how could the principle of res judicata be made applicable to a case in a subsequent suit? The effect of such certificate is also laid down in Section 387". ( 17 ) IN view of the above said material on record, it is clear that the order passed by the Courts below cannot at all be sustained and the same are liable to be set aside and the matter is liable to be remitted to the Additional Civil Judge, Tumkur (probate Court), for fresh disposal of p and SC Nos. 6/91 and 7/91 in the light of the observations made in the body of this judgment after affording opportunity to the parties to adduce additional evidence if they so desire and accordingly, I answer the points for determination and pass the following order: the appeal is allowed. The order passed by District Judge, tumkur, in Miscellaneous Appeal No. 45 of 1993, dated 17-4-1998 confirming the order passed by the Additional Civil Judge, tumkur, in P and SC 6/91 and 7/91, dated 3-6-1993 is set aside and P and SC Nos. The order passed by District Judge, tumkur, in Miscellaneous Appeal No. 45 of 1993, dated 17-4-1998 confirming the order passed by the Additional Civil Judge, tumkur, in P and SC 6/91 and 7/91, dated 3-6-1993 is set aside and P and SC Nos. 6/91 and 7/91 are remitted to the file of additional Civil Judge, Tumkur, for fresh disposal of the petitions in accordance with law in the light of the observations made in the body of this judgment. No order as to costs in this appeal. --- *** --- .