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2008 DIGILAW 1348 (MP)

NIRMALA BAI v. NITYAGOPAL ALIAS PREMNARAYAM

2008-11-19

ABHAY M.NAIK

body2008
Judgment ( 1. ) THIS appeal has been preferred by the appellants against the order dated 2-3-2005 passed by the Court of Fourth Addl. District Judge, Gadarwara, district Narsinghpur, in Succession Case Nos. 2/03 and 3/03. ( 2. ) FOR the purposes of this appeal, the relevant pedegree is as follows:-( 3. ) FROM the pedegree, it is clear that Manaklal was earlier married to shanti Bai. After her death, Manaklal married to Ram Bai. Respondents are legal heirs of Shanti Bai, whereas, appellants are legal heirs of Ram Bai. During the life time of Manaklal, a fixed deposit account was opened in the name of ram Bai in the State Bank of India, Branch Saikheda, for a sum of Rs. 50,000/-bearing Fixed Deposit Receipt (FDR) No. SD/a-29-621380 with 18-1-2003 as maturity date. Maturity value was Rs. 1,04,642/ -. Ram Bai died on 26-12-2002. After her death, appellants approached the State Bank of India for claiming the amount of FDR since they were the legal heirs of deceased Ram Bai being her daughters. Respondents opposed the appellants on the ground that since the money was deposited by Manaklal, respondents being legal heirs of Manaklal, were entitled to half of the share in the amount of FDR. The bank authority asked the parties to obtain succession certificate from the Court. Accordingly, appellants submitted an application for issuance of succession certificate which was registered as Succession Case No. 2/03. Respondents also submitted an application for issuance of Succession Certificate in respect of half of the amount of FDR which was registered as Succession Case No. 3/03. After recording evidence, learned Addl. District Judge, Gadarwara, District narsinghpur passed the impugned order dated 2-3-2005 holding both the parties to be entitled to the succession certificate in respect of half of the amount of the FDR each. Aggrieved by the same, appellants have preferred the present miscellaneous Appeal. ( 4. ) SMT. Shobhna Sharma, learned Counsel appearing for appellants contended that the subject FDR is in the name of Ram Bai and, accordingly, after the death of Ram Bai, the appellants being her only legal heirs are entitled to the succession certificate in their favour for the entire sum of FDR. According to her, learned Court below has acted illegally in granting succession certificate to the respondents to the extent of half of the amount of FDR treating the money to be owned by Manaklal. According to her, learned Court below has acted illegally in granting succession certificate to the respondents to the extent of half of the amount of FDR treating the money to be owned by Manaklal. ( 5. ) SHRI A. K. Pathak, learned Counsel appearing for respondents contended that Ram Bai had no source of income and the money deposited vide the subject FDR belonged to Manaklal, who died intestate. After his death, the respondents being his legal heirs from Shanti Bai are entitled to half of the amount of FDR. Accordingly, it is contended that the learned Lower Court has not acted with illegality in awarding them the half of the amount. ( 6. ) CONSIDERED the submissions and perused the record. ( 7. ) UNDISPUTABLY, the FDR in question is in the name of Ram Bai alone. It was opened on 18-1 -1997 with its maturity on 18-1-2003. Appellants arc the daughters of Ram Bai. Section 372 of the Indian Succession Act, 1925, enables a person to submit application for grant of succession certificate in respect of debt or security of the deceased who dies intestate. Clause (d) of sub-section (1) requires the applicant to specify the right in which he claims. Section 373 of the said Act provides a procedure for dealing with such an application. Clause (b) of sub-section (3) of Section 373 requires the Succession judge to decide in a summary manner the right to the certificate. Thus, all that is required is to hold a summary enquiry into the right to certificate with a view on the one hand to facilitate collection of debts due to deceased and prevent their being time-barred and on the other hand to afford protection to debtors by appointing a representative to deceased and authorising him to give a valid discharge for the doubt. While deciding an application for succession certificate, the Court is called upon only to make summary enquiry about the right to the succession certificate and not in respect of title to the assets. The purpose of grant of certificate is not to give litigant parties an opportunity of litigating contested question of title to property. The object of Part X of Indian succession Act is to obtain appointment of some person to give legal discharge to debtors to estate for debts due. The purpose of grant of certificate is not to give litigant parties an opportunity of litigating contested question of title to property. The object of Part X of Indian succession Act is to obtain appointment of some person to give legal discharge to debtors to estate for debts due. It is not intended that nice questions of law as to rights of parties to estate of deceased should be decided on an application under it. RM. VR. Veerappa Chettair Vs. M. Ars. S. Kavuveri Achi and others, AIR 1955 NUC (Madras) 3943. ( 8. ) LARGER Bench of Calcutta High Court constituted by five Judges in the case of Brojendra Sundar Banerji Vs. Niladrinath Mukerjee and others, AIR 1929 Calcutta 661, has observed :- "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. " Larger Bench has further quoted : "in 1875, we find Glover, J. , repeating the same rule and in the same way as Jackson, J. , had done : "the current of decisions in this Court. . . . . seems to lay it down that the petitioner for a certificate need do nothing more than prove his title to collect the debts if there are any. I should certainly have thought that it was first necessary to show that there was a need for the certificate by giving at least prima facie evidence of the existence of debts; but as I have not been shown any decisions going to that length I am willing to follow the rulings mentioned above, and to hold that the petitioners title was the thing to be looked to. Beemul Vs. Shibur, (1875) 24 WR 211. Beemul Vs. Shibur, (1875) 24 WR 211. " It has been further clearly observed :- "prima facie a person disputing the title of the deceased to the debts in question is only putting himself out of Court, showing good reason why some willing person other than himself should be authorised to assert the claim in the right of the deceased. " Thus, it can be safely said that in proceedings under Section 373, succession Court has power to confine itself entirely to question of right to certificate and not to decide upon title reality and character of claim. ( 9. ) I may also derive little strength from the decision of Nagpur High court in the case of Kisan Gopal Madan Gopal Vs. Chunnilal Hanamantram and others, AIR 1938 Nagpur 47, wherein the grant of succession certificate was opposed by the objector on the ground that a will was executed by the deceased in his favour. Pollock, J. while deciding the matter has held that the decision would involve the question of valid execution of the will alleged by the objector, but it will not involve the question whether the deceased was entitled to dispose of the property mentioned in the will. Thus, in an application for issuance of succession certificate whether debt/security in respect of which the certificate is applied for belonged to the deceased or not is irrelevant and cannot be gone into because it would amount to decide the question of title thereto. ( 10. ) IN the case in hand, appellants are admittedly the daughters of deceased Ram Bai, who held the subject FDR in her sole name. Learned Lower court has held in Paragraph 12 that Ram Bai had no independent source of income and the money deposited in her name in the subject FDR was by manaklal, who was husband of the mother of respondents. Thus, the learned subordinate Judge has not decided the right to certificate but has decided the title to the subject FDR ignoring that it was in the sole name of Ram Bai. This is, obviously, beyond the scope of Part X of the Indian Succession Act. Thus, the learned subordinate Judge has not decided the right to certificate but has decided the title to the subject FDR ignoring that it was in the sole name of Ram Bai. This is, obviously, beyond the scope of Part X of the Indian Succession Act. Sub-section (3) of Section 373 of the said Act, clearly lays down that if a Judge cannot decide the right to the certificate without determining questions of law or fact which seem 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. ( 11. ) QUESTION that whether the money deposited in the FDR in the name of Ram Bai alone belonged to Manaklal or not, was obviously a question relating to the title to the money which could not have been decided by the succession Court in a summary proceeding, because Section 373 does not empower the Succession Judge to decide the question of title to the property. It merely empowers him to decide the right to the certificate. Since the FDR in question was in a singular name of Ram Bai, her legal heirs alone would be entitled to the succession certificate in question because they are the persons prima facie appearing to have the best title. Further, it is observed that the finding that Ram Bai was having no independent earning or that the amount was deposited by Manaklal will not lead to a conclusive inference that the ownership over it was retained by Manaklal. It could have been gifted also. Learned Court below has nowhere given a specific finding that while opening the FDR account, money was deposited by Manaklal maintaining his ownership over it. Had it been so, there was no reason for not making the FDR in the joint names of Ram bai and Manaklal with instructions of either or surviver or former or surviver. ( 12. ) THIS apart, by virtue of sub-section (2) of Section 3 of Benami transaction Act, 1988, unless contrary is proved, it would be presumed that the subject FDR was opened for the benefit of the wife, i. e. , Ram Bai. ( 13. ) APEX Court in the case of Lachman Singh Vs. ( 12. ) THIS apart, by virtue of sub-section (2) of Section 3 of Benami transaction Act, 1988, unless contrary is proved, it would be presumed that the subject FDR was opened for the benefit of the wife, i. e. , Ram Bai. ( 13. ) APEX Court in the case of Lachman Singh Vs. Kirpa Singh, 1987 mplj 342, has held that the step-sons and step-daughters would not fall in the category of clause (a) of Section 15 (1) of the Hindu Succession Act. Subject fdr was in the sole name of Ram Bai. Respondents are sons of Shanti Bai, who was the first wife of the husband of Ram Bai. Thus, the respondents are step-sons and step-daughters of Ram Bai. Since the FDR in question was in the name of Ram Bai alone, succession would be governed by Section 15 (1) (a) of the Hindu Succession Act unless the respondents seek a declaration from Civil court in a duly constituted suit that the money deposited in the subject FDR did not belong to Ram Bai, but belonged to Manaklal. Thus, the appellants are the persons who prima facie appear to have the best title to the succession certificate in respect of aforesaid FDR. Division Bench of this Court in the case of K. Shyamlal Vs. K. Sugna Devi and others, 1998 (1) JLJ. 345 , has clearly held that the court while dealing with an application under Section 373, is not required to determine too intricate questions of law or fact nor the Court can direct to seek declaration in respect of the rights, it may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. ( 14. ) SHRI A. K. Pathak, learned Counsel for respondents placing reliance on the decision of the Apex Court in the case of Prabha Dubey and others Vs. Santosh Dubey, 2005 (1) MPLJ 452 , contended that the impugned order has been rightly passed regarding grant of succession certificate in respect of appellants as well as respondents. In the case of Prabha Dubey (supra), a succession certificate was sought in respect of a deceased with whom the marriage was alleged to have been performed by another lady. This being so, there was no dispute about title to the property. In the case of Prabha Dubey (supra), a succession certificate was sought in respect of a deceased with whom the marriage was alleged to have been performed by another lady. This being so, there was no dispute about title to the property. In the present case, there is a dispute with regard to title in respect of money deposited in the name of Ram bai alone under the subject FDR. Thus, the decision of Prabha Dubey (supra), is quite distinguishable on facts and cannot be applied herein. ( 15. ) IN the result, appeal succeeds. The appellants are found to have prima facie best entitlement to a succession certificate in respect of the subject fdr which was in the sole name of Ram Bai. ( 16. ) ACCORDINGLY, the impugned order is, hereby, set aside. Appellants are alone entitled to the succession certificate in question. However, it is made clear that the respondents in no manner would be precluded from instituting a civil suit for declaration and other reliefs on the ground that the money deposited in the FDR in the sole name of Ram Bai was not gifted to her and rather it belonged to Manaklal alone and the respondents being legal heirs of manaklal have a right to recover the money to the extent of their share in accordance with law. ( 17. ) NO order as to costs.