JUDGMENT 1. T.G. Nanjamma, the wife of the appellant died on 11-5-1994 at Bangalore. She was a Teacher at the Government Lower Primary School, Pathapalya. She died whilst in service. The appellant widower, claiming the service benefits of the deceased, petitioned the lower Court under Section 372 of the Indian Succession Act. 1925, for a succession certificate thereof. The respondent, father of the deceased, resisted the petition. The objection was that the appellant and the deceased had never lived in matrimony from inception, and had lived apart till the death of the deceased, though they were not formally divorced. The deceased Nanjamma had executed a Will in favour of the respondent, dated 9-5-1994, two days before her death. The appellant had allegedly married one Smt. Lalitha even during the subsistence of the marriage with the deceased. This fact having coming to the knowledge of the Deputy Director of Public Instructions, Kolar, the appellant had been denied the service benefits of the deceased. 2. On these facts, the Trial Court had framed the following issues for its consideration: (1) Whether the respondent proves that deceased T.G. Nanjamma has left behind a Will bequeathing the benefits payable to her successor by Government in his favour? (2) Whether the petitioner proves that he is entitled for succession certificate? (3) To what relief are parties entitle for? 2-A The Trial Court has found that the appellant was married to the deceased and that they did not live cordially together. The Court has recorded the admission of the appellant of a second marriage. 2-B. The Trial Court has found that the execution of the Will has been established. The allegations of "suspicious circumstances" attendant thereto are negatived and the petition has been dismissed. Hence, the appeal. 3. Sri Chandrakanth Goulay appearing for the appellant contends as follows.- The suspicious circumstances surrounding the Will have been completely overlooked. Namely, that the stamp paper on which the Will is executed indicates the date as 4-3-1994. The date affixed by the stamp vendor is 19-3-1994. The deceased has described herself as daughter of Gangadharaiah, the respondent, and not as wife of the appellant. The text of the Will is made to fit the page on which the signature of the deceased appears and was obviously written on a blank paper obviously signed by the deceased, earlier. The date affixed by the stamp vendor is 19-3-1994. The deceased has described herself as daughter of Gangadharaiah, the respondent, and not as wife of the appellant. The text of the Will is made to fit the page on which the signature of the deceased appears and was obviously written on a blank paper obviously signed by the deceased, earlier. The scribe and witnesses to the Will have signed overleaf when they could very well have signed on the first page. 3-A. That there are inconsistent statements of the witnesses to the Will as to the physical state of health of the deceased at the time of execution of the Will. The dominant part played by the father of the deceased in the execution of the Will and the fact that the witnesses are close friends of his, her glossed over. 3-B. The Counsel further contends that the petition ought to have been treated as a suit under Section 295 of the Indian Succession Act, 1925. 3.C. The propounder ought to have proved the Will, as the initial burden was on him. The propounder ought to have dispelled all suspicious circumstances. The Will was not proved. The Trial Court has not considered the evidence of P.W. 1 to P.W. 3. 4. The Counsel for the appellant has relied on the following authorities.- (1) H. Venkatachala Iyengar v. B.N. Thimmajamma, to contend that the Trial Court has failed in its duty in not applying settled principles while appreciating evidence in proof of the Will; (2) Janki Narayan Bhoir v. Narayan Namdeo Kadam, to contend that the onus is on the propounder to prove the Will. And the burden is not discharged by merely proving the signature of the testator; (3) N. Kamalam v. Ayyasamy; and (4) Smt. Violet Issaac v. Union of India, to contend that under service law, family pension cannot be bequeathed by Will as it does not form part of the estate of the employee. 5. Per contra, the Counsel for the respondent seeks to support the order of the Trial Court. 6. 5. Per contra, the Counsel for the respondent seeks to support the order of the Trial Court. 6. On these rival contentions, in my opinion, a Will having been set up in answer to the petition for succession certificate and the Court having accepted evidence led in support of the Will and having accepted the Will in dismissing the application, was in fact deciding on the entitlement of the parties to the benefits left behind by the deceased in terms of the Will. 7. In terms of sub-section (2) to Section 373, the lower Court was required to decide on the right of the applicant to the certificate. The appe1lant was the widower of the deceased. The deceased was not divorced from him. This is not in dispute. 8. The fact that the applicant admits having married illegally for the second time during the lifetime of the deceased or that the department under which the deceased was employed having refused to part with any of the benefits on that count. Or that the respondent claims the benefits under a Will did not take away the right of the appellant to a succession certificate, in law. 9. The respondent not being a rival applicant for a succession certificate denial of the certificate merely on the count that the appe1lant was living away from the deceased and that the respondent was claiming under a Will is clearly erroneous and ignores the right of the appe1lant. 10. Section 373 merely lays down that the section requires the Court to be satisfied that there is a ground for entertaining the application, namely that it is by a person who desires to make a claim in a representative character and it is not necessary for the Court to enter upon other questions such as entitlement to the benefits or other issues which would be questions of such a character which cannot be litigated upon on an application for succession certificate. This view finds support in a Full Bench decision of the Calcutta High Court in the case of Brojendra Sundar Banerji v. Niladrinath Mukerjee. This view finds support in a Full Bench decision of the Calcutta High Court in the case of Brojendra Sundar Banerji v. Niladrinath Mukerjee. The Full Bench, consisting of five Judges, has held as follows.- "Section 372 of the Succession Act provides that an application for a Succession Certificate must be verified like a plaint and shall set forth inter alia the right under which the petitioner claims and the debts and securities in respect of which the certificate is applied for. Section 373 provides that if the Judge is satisfied that there is ground for entertaining the application, he shall fix a date for hearing and issue certain notices and upon the date fixed or as soon thereafter as may be practicable shall proceed to decide in a summary manner the right to the certificate. Sub-sections (2) and (3) are as follows.- "(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him. (3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to him to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto". An examination of this section leads me to the conclusion that the Legislature contemplated first that the District Judge should be satisfied not that a Succession Certificate will be necessary or exigible under Section 214 or otherwise, but that there is "ground for entertaining the application". That is to say, that it is a serious and sensible application by a person who desires to make a claim in the representative character which he seeks. Sub-sections (2) and (3) contemplate that the Judge shall endeavour to determine whether applicant is the proper person or a proper person to be clothed with the representative character and it is made abundantly clear that any intricate questions of fact or law bearing upon this question may be solved in a summary manner. Sub-sections (2) and (3) contemplate that the Judge shall endeavour to determine whether applicant is the proper person or a proper person to be clothed with the representative character and it is made abundantly clear that any intricate questions of fact or law bearing upon this question may be solved in a summary manner. The Legislature by exacting fees and by making provision for the requirement of a bond would seem to have taken away all temptation to apply for a succession certificate save in cases where a succession certificate will enable the grantee to prosecute a claim as a representative of the deceased with greater advantage than he would have been able to do in the absence of this representative right. Section 387 provides that no decision under this 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. In my opinion nothing could be more misguided, unnecessary and objectionable than that questions of the exact character of an applicant's claim should be litigated upon an application for a succession certificate and in the absence of the party or authority against whom the claim is made. The objector in the present case, for example, is in no way damnified by the grant of the certificate. He is entitled to object before the Land Acquisition Judge to any order for payment out of the compensation money upon any ground which he can establish showing that the money was not due to the deceased but is money which, in the events that have happened, is payable to him. If he has any grievance against the order of 18th April, 1928, he has his remedy. To insist upon litigating the questions at issue between the parties under the provisions of Section 373 of the Indian Succession Act, is merely the tacticts of obstruction. If he has any grievance against the order of 18th April, 1928, he has his remedy. To insist upon litigating the questions at issue between the parties under the provisions of Section 373 of the Indian Succession Act, is merely the tacticts of obstruction. On the other hand it would clearly be inconvenient if in a case such as this the Land Acquisition Court should take the view that the nature and character of the claim was such as to entitle it to require the production of a Succession Certificate, while at the same time the Judge to whom application for such certificate must be made purported to decide between these parties that the debt in question could not be regarded as having been due to the deceased and that accordingly no right to represent the deceased for the purpose could be given to anyone. In my opinion it is not the law that the Court upon an application for a certificate has to decide for itself, as a condition of granting the certificate, that the case is one in which the debt was due to the deceased person within the meaning of Section 214. A reasonable and sensible claim to be enabled to proceed against a third party as being a debtor of a deceased person is sufficient for the purpose of clothing the Court with jurisdiction under Section 373 and may be regarded as ground for entertaining the application". 10-A, Even in a contentious proceeding for probate under Section 295 of the Act, though the proceedings shall take as nearly as possible the form of a regular suit, the issues to be tried in such a suit are, however, limited to the questions as to whether the testator was of sound disposing mind and whether the Will was duly executed and attested. It is not the duty of the probate Court to consider any issue as to the title of the testator to the property with which the Will propounded purports to deal or as to what disposing power the testator may have possessed over such property or as to the validity of the bequests made. A proceeding under the Act would not be a suit properly, so-called, but merely takes the form of a suit according to the provisions of the Code of Civil Procedure, 1908. 11. A proceeding under the Act would not be a suit properly, so-called, but merely takes the form of a suit according to the provisions of the Code of Civil Procedure, 1908. 11. In the instant case on hand, the order of the lower Court rejecting the application for grant of certificate is liable to be set aside, not on the grounds raised in the appeal, but on the ground that the order is not supported by reasons to indicate as to how the appellant is disqualified from being entitled to the certificate, the incidental findings on the will of the deceased sought to be set up by the respondent, notwithstanding. In any event, the findings as regards the purported Will would not operate as res judicata in any other proceedings that may be initiated by the respondent to raise a claim to the benefits of the deceased wife of the appellant. 12. The Supreme Court in the case of Joginder Pal v. Indian Red Cross Society, has held thus after reproducing the text of Sections 373, 383(e) and 387 of the Act: "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. 16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, AIR 2000 SC 2301 : 2000 AIR SCW 2432 : JT (2000)5 SC 336. In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the Code of Civil Procedure, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the Code of Civil Procedure, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held that Section 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the Code of Civil Procedure. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case. 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 respondent to file a subsequent suit. Merely because issues were raised and/or evidence was led, does not mean that the finding given thereunder are final and operate as res judicata. Even in summary proceedings issue 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". 13. In this background, the Trial Court having proceeded in the manner it has and the appeal not having raised the grounds on which the order could be set aside, interests of justice would require that the Trial Court rehear the matter afresh recasting the issues having due regard to the scope of a petition under Section 373 of the Act. Accordingly, the matter is remanded for a fresh adjudication keeping in view the position of law and not being influenced by any observations made herein on the facts of the case. The appeal stands disposed of.