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2006 DIGILAW 121 (CHH)

Rupendra Singh v. Krishna Kanhaiya

2006-02-24

VIJAY KUMAR SHRIVASTAVA

body2006
ORDER :- This revision is directed against the order dated 22-11-1995 passed by the District Judge, Rajnandgaon, in Misc. Civil Appeal No. 5/92, reversing the order dated 30-11-1991 in Succession Case No. 6/85 passed by the Ist Civil Judge, Class I, Rajnandgaon, who rejected the application filed under Section 372 of the Indian Succession Act (for short, "the Act") for grant of succession certificate in favour of the non-applicant No. 1. 2. Facts material for disposal of this revision in brief compass are that non-applicant No. 1 Krishna Kanhaiya after the death of Bhanumati Bai who died on 22-11-1984, claiming himself and non-applicant No. 2 being step-brother, to be her legal heirs, filed application for grant of succession certificate in respect of rent for the month of November, 1984, December, 1984 and January, 1985 total Rs. 900/- (Rupees nine hundred). Non-applicant No. 2 did not appear and remained ex parte. Applicant objected grant of succession certificate in favour of non-applicant No. 1 on the ground that Bhanumati Bai during her lifetime executed a Will in his favour, therefore, after her death, he became owner of the property left by her. He never remained tenant of Bhanumati Bai. After her death, he filed an application for mutation and grant of lease on the basis of that Will. House has been recorded in his name and Nazul land over which the house is situated has also been leased in his favour. 3. Both the parties in support of their cases, adduced oral and documentary evidence. Learned trial Court, after evaluation of the evidence held that non-applicant No. 1 failed to prove that the house in dispute was given to Rupendra Singh on monthly rent of Rs. 300/- (Rupees three hundred) and also failed to prove that he and his brother-non-applicant No. 2 are the successors of Bhanumati Bai, therefore, dismissed the application vide order dated 30-11-1991. Aggrieved by that order non-applicant No. 1 preferred the appeal bearing Misc. Civil Appeal No.5/92. Learned appellate Court vide impugned order reversed the order passed by the trial Court and allowed the application filed by non-applicant No. 1 for grant of succession certificate in respect of monthly rent of Rs. 300/- (Rupees three hundred) against the disputed house. 4. In order to prove the relationship, the petitioner/non-applicant No. 1 has examined Krishna Kanhaiya (AW/1), Shrinarayan Singh (AW/2) and Smonath (AW/3) as witnesses. 300/- (Rupees three hundred) against the disputed house. 4. In order to prove the relationship, the petitioner/non-applicant No. 1 has examined Krishna Kanhaiya (AW/1), Shrinarayan Singh (AW/2) and Smonath (AW/3) as witnesses. From their statements, it is clear that non-applicant Nos. 1 and 2 were step-brothers of deceased Bhanumati Bai. objector/appellant Rupendra Singh has examined himself to substantiate his case. From his statement it emerges that he is not a member of the family of deceased Bhanumati Bai. He was a Tailor who came in contact with Bhanumati Bai just before eight or ten years when he started living in her house. He does not know from where Bhanumati came and to which place she belonged. That apart, he did not say a single word that both the non-applicants are not step-brothers of deceased Bhanumati Bai, therefore, learned appellate Court has correctly appreciated the evidence and concluded that non-applicants No. 1 and 2 are step-brothers of deceased Bhanumati Bai. 5. Bhanumati Bai executed a registered Will i.e. Ex.D/1. Applicant's contention is that the deceased Bhanumati Bai died leaving behind her a registered Will. Therefore, no application for grant of succession certificate is maintainable. Part X of the Act deals with the provisions regarding grant of succession certificate. Section 370 of the Act imposes restrictions on grant of succession certificate. It is apparent that for a claim based on Will in respect of any debt or security requires to be established by Letters of Administration or Probate of Will or the Letters of Administration with a copy of such Will. Here in the instant case, non-applicant No. 1 has not come with a cause for grant of succession certificate on the basis of any Will, but has claimed the certificate as successor of deceased Bhanumati Bai. Therefore, his application for grant of succession certificate is maintainable. 6. Succession Certificate can be granted only for debt or security. In the instant case, admittedly, Bhanumati Bai died in the month of November, 1984 and the succession certificate for rent for the months of November, 1984, December, 1984 and January, 1985 and for onwards has been prayed for. Ordinary meaning of Debt is liability from one person to another whether in cash or kind, secured or unsecured whether ascertainable or unascertainable arising out of any obligation, express or implied. Ordinary meaning of Debt is liability from one person to another whether in cash or kind, secured or unsecured whether ascertainable or unascertainable arising out of any obligation, express or implied. After the death of Bhanumati Bai the rent for which application has been filed, was not payable to Bhanumati Bai. Therefore, for recovery of future rent which does not come within the ambit of debt no succession certificate can be granted. 7. From the evidence of appellant-Ruprendra Singh, it was established that Bhanumati Bai died on 8-11-1984. On the basis of registered Will in his favour, the suit house has been mutated in his favour and also lease has been granted to him. In his evidence, no suggestion has been made or question has been put for explanation that he was tenant of Bhanumati Bai. In his cross-examination, it has been brought that he was living in the house as her son. To establish relationship of landlord and tenant in between Bhanumati Bai and appellant, neither document has been adduced nor any other substantial evidence is there to establish that appellant was living in the house paying monthly rent of Rs. 300/- (Rupees three hundred). The evidence of Rupedrasingh (NAW/1) is credible. Therefore, regarding relationship as landlord and tenant, the finding based on appreciation of evidence of lower Court was correct. The appellate Court erred in reversing the said finding. 8. In the result, the revision succeeds. The impugned order passed by the District Judge, Rajnandgaon is set aside. 9. Parties to bear their own costs. Petition allowed.