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Madhya Pradesh High Court · body

2010 DIGILAW 559 (MP)

SHAKUNTALA MITTAL v. SHYAMLAL

2010-05-17

J.K.MAHESHWARI

body2010
Judgment J.K.Maheshwaki, J. ( 1. ) This revision is directed against the order dated 19.1.2009 passed by the Civil Judge, Class I, Dhar in MJC No.8/06 whereby the application filed by the applicant under Order IX Rule 13 read with Section 151 of CPC has been rejected, because sufficient ground to revoke the order dated 4.7.2006 granting succession certificate in favour of the non-applicant/ revisionist has not been made out. It has further been observed that because the amount of the fixed deposit has already been received by the non-applicant however, the application has now rendered infructuous and the applicant is at liberty to file a civil suit, asking relief to set aside the succession certificate issued in favour of the non-applicant. ( 2. ) The facts in brief are that non-applicant had filed an application on 19.4.2005 under Section 372 of the Indian Succession Act (in short herein after be referred as "Act") for grant of succession certificate in respect to the fixed deposits of the amount Rs.3,06,000/-, which was in the name of deceased Ramchandra Agrawal. The deceased was the real brother of the non-applicant and died on 30.1.2005. He had kept the said amount in fix deposit with Shriram Transport Finance Company Ltd. (in short hereinafter be referred as the Company), which is one of the ancillary Company of Shriram Group of Companies, Manoramaganj, Indore. In the application it is stated, by the non-applicant that the deceased was unmarried and the respondent being real brother is the legal heir, hence entitled to get succession certificate. The Company has made the demand of the certificate to repay the amount of fixed deposit of deceased, however, it is necessary to produce it to the Company. On filing the application, it was registered as Succession Case No.8/2005. Initially at the time of filing of the application Sarva Sadharan were joined as respondent, however the notice was published in the daily newspaper "Swadesh" on 6.5.2005 but none had appeared to object. Thereafter, non-applicant has filed the application seeking amendment, to join the present applicant and Mr. Satishchandra Mittal as party to the proceedings. In the amendment application it is averred that the Company has intimated him, that applicants are the nominees of the FDRs hence they are necessary party and may be joined as respondents. Thereafter, non-applicant has filed the application seeking amendment, to join the present applicant and Mr. Satishchandra Mittal as party to the proceedings. In the amendment application it is averred that the Company has intimated him, that applicants are the nominees of the FDRs hence they are necessary party and may be joined as respondents. The trial Court allowed the said amendment application vide order dated 23.1.2006, and the present applicant as well as Mr. Satishchandra Mittal were joined, but their address has not been furnished by non-applicant, however, notice was issued by way of publication for their appearance on 20.3.2006. The date of appearance in Court as specified in notice was later on declared holiday, and the presiding officer was also on leave on the said date, however, the case was listed for further orders on 29.3.2006. On 29.3.2006 ex-parte was proceeded against the present applicant and case was fixed for recording evidence of the non-applicant on 22.4.2006. On that date statements of witnesses of non-applicant were recorded ex-parte, and the succession certificate was issued in favour of non-applicant vide order dated 4.7.2006. Being nominee of deceased when the applicant has contacted to the said finance Company then it has come to their knowledge, that on the basis of succession certificate granted by Court in favour of the non- applicant/Revisionist, the amount has been drawn by them. Thereafter applicant has filed an application under Order IX Rule 13 read with Section 151 of CPC on 3.8.2006, within the time as prescribed, seeking revocation of the said certificate, which was registered as MJC No.8/2006 and after recording the evidence, the trial Court has rejected it by the order impugned, however, having aggrieved by the order, applicant has filed this revision. ( 3. ) Learned counsel Shri Kale, appearing on behalf of the applicant has strenuously urged that the Court below has committed an error in rejecting the application to revoke the succession certificate, because the entire proceedings are defective as service of notice were not made effective to the petitioner despite joining them as a party on the request of non-applicant. ) Learned counsel Shri Kale, appearing on behalf of the applicant has strenuously urged that the Court below has committed an error in rejecting the application to revoke the succession certificate, because the entire proceedings are defective as service of notice were not made effective to the petitioner despite joining them as a party on the request of non-applicant. It is submitted by him that at the time of joining the applicant and one Satishchandra Mittal, their residential address has not furnished to Court by non-applicant with mala fide intention, however, notices were directed to be issued by publication in the newspaper "Nai Duniya" of the fixed date I.e. 20.3.2006, which was declared as holiday, therefore, the case was fixed for further orders on 29.3.2006. On the said date applicant has been proceeded ex-parte, though the case was not listed for hearing, however, it is a case in which the proceeding to obtain succession certificate were defective in substance and the ground of revocation as specified under Section 383 (a) of the Act has been made out. It is further contended by Shri Kale, that the daily newspaper "Nai Duniya", in which the summons were published was not subscribed by the applicant, hence she was unaware of publication of summons of the succession case. Thus, the trial Court has committed an error to proceed ex-parte against the applicant and to grant the succession certificate in favour of the non- applicant. Learned counsel has placed reliance on Division Bench judgment of this Court in the case of Laxmi Bai - Keshrimal Jain - 1995 MPLJ 105 . While on the point of revocation of succession certificate, reliance has further been placed on the judgment of this Court in the case of Bablu Mandal Vs. Vandana Bhowmik - 2008 (1) MPLJ 522 . In view of the said it is contended, by Mr. Kale that in the said case probate was granted, and the application was filed for revocation under Order IX Rule 13 of CPC. The opponent by filing an application under Order VII Rule 11 of CPC requested to the Court for rejection of the application under Order IX Rule 13 of IPC as the provisions of Code of Civil Procedure having no application. The opponent by filing an application under Order VII Rule 11 of CPC requested to the Court for rejection of the application under Order IX Rule 13 of IPC as the provisions of Code of Civil Procedure having no application. The trial Court rejected such application of the opponent against which a revision petition was filed, wherein this Court has held that rejection of the application of the opponent by the trial Court is just and proper and the provisions of Order IX Rule 13 of CPC having its application. The Court has observed that under Section 263 of the Act wide powers are conferred to the Court for revocation or annulment of a grant of probate or letter of administration for the just cause. It is contended that the provisions for revocation of probate under Section 263 of the Act and revocation of succession certificate under Section 383 of the Act are peri materia, however, if the applicant has shown sufficient cause for revocation or annul of grant of succession certificate, the Court should not ordinarily reject such application, because of having a remedy to file a civil suit. In view of the said it is urged that the order impugned passed by the trial Court rejecting the application seeking revocation of succession certificate is against the Clause (a) of Section 383 of the Act. However, prayer is made to allow this revision and to set aside the order impugned passed by the trial Court ( 4. ) Shri A. S. Garg, learned Sr. Advocate, appearing on behalf of the non-applicant submits that the enquiry in the case of grant or to refuse succession certificate is of summary nature, and the certificate, if any, granted by the Court, may be challenged by filing the civil suit on the same issue, as the issuance of the certificate is final only it relates to proceeding under the Act, as apparent from Section 387 of the Act. However the order impugned can be questioned in a civil suit before the competent Civil Court, and the trial Court has rightly rejected the application. He has placed reliance on the judgment of this Court in the case of Mahendra Kumar Chaurasiya Vs. However the order impugned can be questioned in a civil suit before the competent Civil Court, and the trial Court has rightly rejected the application. He has placed reliance on the judgment of this Court in the case of Mahendra Kumar Chaurasiya Vs. State of M. P. and others - 2002 (3) MPLJ 112, and contended that the non-applicant is the brother of deceased Rameshchandra, while the applicant is the daughter of the brother of the first wife of Prahlad father of the deceased and non-applicant, and also their cousin sister. However, she cannot be said to be the legal heir, under Section 6 of the Hindu Secession Act 1956. It is further said that after issuing the succession certificate in favour of the non-applicant by the trial Court the amount of the fixed deposit has been received, however, in such circumstances no fruitful purpose shall serve, even on allowing the application of revocation. In view of the aforesaid it is contended that even on dismissing the revision and the order impugned is allowed to stand, it would not cause occasion of failure of justice to applicant, as they are not the the legal heir of the deceased and can maintain civil suit under Section 387 of the Act. However, in such circumstances revisional jurisdiction ought not to be exercised by this Court; reliance has further been placed on a judgment of this Court in the case of Rameshchandra Sharma and others Vs. Hargovind Jawaharlal Mahajan and other - 1989 MPLJ 746 , and in the case of Usha (Ku.) Vs. Harshal - 2002 (2) MPWN 135 to submit that if the nomination is in the favour of the present applicant, it shall not supersede the provisions of Section 8 of the Hindu Succession Act. The reliance has further been placed on the judgment of apex Court in the case of Sarbati Devi and another Vs. Smt. Usha Devi - AIR 1984 SC 346 and the recent judgment, on the said issue, in the case of Challama Vs. Tilaga and others - (2009) 9 SCC 299 . In view of the aforesaid it is urged that the order impugned passed by the trial Court would not result into failure of justice to the applicant as the remedy of filing the civil suit is available to prove her right and to get assail the certificate of succession. Tilaga and others - (2009) 9 SCC 299 . In view of the aforesaid it is urged that the order impugned passed by the trial Court would not result into failure of justice to the applicant as the remedy of filing the civil suit is available to prove her right and to get assail the certificate of succession. Therefore, it is payed that, this Court should not exercise the revisional jurisdiction, and may kindly be pleased to dismiss the petition. ( 5. ) To counter the argument on the point of nominee Shri Kale, counsel appearing on behalf of the applicant has drawn my attention to the provisions of the Banking Regulation Act, 1949 (in short hereinafter it be referred as the Act of 1949). Section 45 (Z) (a) of the Act, gives power to the Bank to pay the amount of the depositors to the nominee. It is submitted by him that the judgment of apex Court in the case of Challamma (supra) relates to the Insurance Act, while the provisions of the Act of 1949 deals certain operations of the banking company, where the nominee specified in deposits is having right to receive the money deposited by the deceased. In this context it is urged by him that if the case of revocation of certificate is made out and any of the contingency as specified under Section 383 of the Act is available, the Court shall not ordinarily reject the application for such revocation merely on the pretext of having right to file the civil suit. ( 6. ) After having heard learned counsel and on giving my anxious thought to the contentions pressed, the following question arises for consideration: (1) Whether the trial Court was justified to proceed ex parte against applicant on 29.3.2006 when the case was listed for further orders, and not for hearing ? (2) Whether any, of the ground for revocation of succession certificate as enumerated under Section 383 of the Act is available in the facts of the present case ? (3) Whether in view of the withdrawal of the depositors amount by the non-applicant, the application for revocation has now rendered infructuous and the remedy lies to applicant to file the civil suit only ? ( 7. (3) Whether in view of the withdrawal of the depositors amount by the non-applicant, the application for revocation has now rendered infructuous and the remedy lies to applicant to file the civil suit only ? ( 7. ) In reference to answer question No. 1, it is seen from the record that the non-applicant had filed the application under Section 372 of the Act, seeking relief to grant the succession certificate in his favour for the said fixed deposits, of his deceased brother. In the said case initially "Sarva Sadharan" was joined as party, and the Court had passed the order of publication of summons inviting objection from Sarva Sadharan. The said notices were published in daily newspaper Swadesh and no objections were received before the Court opposing prayer of grant of succession certificate. In the meantime non-applicant himself filed the application of amendment and prayed for, to join the present applicant and Mr. Satischandra Mittal husband of the applicant as non-Applicants No. 2 and 3, because those persons were shown as nominee in the fixed deposit made by the deceased in the record of Shriram Company. The applicant and Satishchandra Mittal are not the unknown persons to non-applicant, which may reveal from the reply of revocation application. It is admitted by the non-applicant, that Shyamlal and deceased Rameshchandra both are real brothers and the sons of late Prahlad; Gyarsi Bai was the first wife of Prahlad, and the applicant is daughter of Bhikam, i.e. brother of Gyarsi Bai, and the nominee in the fixed deposits. However, it is unimaginable that the non-applicant was unaware of their address, while joined them as respondent Nos.2 and 3 in the succession proceedings. Thus, it appears that complete address of the applicant and Mr. Satishchandra Mittal has not been furnished by non-applicant for the oblique reasons, and in absence of address the Court has passed the order of publication of the summons in the daily newspaper Nai Duniya. In this connection, the plea of applicant that newspaper Nai Duniya has not been subscribed by them for reading cannot be ignored in absence of the other material. Thus it may safely be believed that the applicant, may not have knowledge of such publication of summons in the news paper Nai Duniya. In this connection, the plea of applicant that newspaper Nai Duniya has not been subscribed by them for reading cannot be ignored in absence of the other material. Thus it may safely be believed that the applicant, may not have knowledge of such publication of summons in the news paper Nai Duniya. Moreover, the date of appearance of applicant in summons was 20.3.2006, which was declared as holiday, and the Presiding Officer was also on leave, however, the Board Reader fixed it on 29.3.2006 for further orders. Obviously on 29.3.2006 it was not fixed for hearing, and on the said date itself applicant has been proceeded ex parte. In the light of the judgment of Division Bench of this Court in the case of Laxmi Bai (supra). If the date has been fixed by the Board Reader on having Presiding Officer on leave; such date cannot be treated as a date fixed for hearing. Until and unless the case is fixed for hearing the Court should not direct to proceed ex-parte against applicant. In such circumstances in the opinion of this Court order passed by the trial Court to proceed ex parte against the applicant as well as Satishchandra Mittal, on a date which was not fixed for hearing, is in excess to the jurisdiction which is not conferred to them under the law. In view of the foregoing the question No. 1 is merely answered in favour of the applicant. ( 8. ) In reference to answer the question No. 2, the provisions of Section 383 requires to be reproduced herein below : "383. Revocation of certificate - A certificate granted under this Part may be revoked for any of the following causes, namely : (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; . (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." ( 9. ) On going through the discussion as made in answer to question No.1, the present case falls within the category of Section 383 (a) of the Act, whereby, the proceedings to obtain a certificate were defective in substance, because the order passed by the Court to proceed ex parte against applicant was without following due procedure, however, grant of the succession certificate to non-applicant, was based upon the defective proceedings in substance. My view fortifies and finds support by the judgment of this Court in the case of Bablu Mandal (supra). In that view of the matter in the opinion of this Court if the applicant is having ground for revocation, and on having sufficient cause, the order to revoke such certificate can be directed, and the application can be maintained in the facts and circumstances of this case. Accordingly, the question No. 2 is also answered in favour of the applicant. ( 10. ) In reference to question No. 3 the main thrust of the arguments of counsel for the non-applicant is that the present applicant is not a legal heir as per Section 8 of the Hindu Succession Act, because she does not fall in any of the list of the heirs, however, even on revocation of the certificate, succession cannot be granted in her favour. The arguments as advanced by non-applicant of not having enlisted heir in the Schedule of Section 8 of the Act seems to be correct, but at the same time the provisions of Section 45 (Z) (a) of the Banking Regulation Act of 1949, cannot be ignored whereby it is apparent that in a case of death of the sole depositor the amount deposited by him may be returned by the banking company to the nominee. The judgment as referred of the apex Court Challamma (supra) relates to the insurance policy, wherein no such provision like Banking Regulation Act has been considered. However, in the aforementioned facts and circumstances of the case, in the opinion of this Court if the proceedings to grant succession certificate found defective in substance, it does not require final adjudication by this Court while exercising revisional jurisdiction and such question may be left open to the parties to raise before the trial Court. In this context it is further required to be observed here that the remedy of filing a civil suit undoubtedly is not barred to the applicant as specified under Section 387 of the Act, and the certificate as granted in favour of the non-applicant attains finality only with respect to the proceedings of the succession certificate and it may be set aside in civil suit. But once the procedure of grant of certificate was found defective in substance, as envisaged under Section 383 of the Act and if the case falls in any of the category as specified therein, the parties cannot be refused to entertain the application for revocation on the pretext of having remedy to file a civil suit, hence the question No. 3 is answered accordingly. ( 11. ) In result this petition is allowed, the order impugned rejecting the application of revocation is set aside; in consequentia the order granting succession certificate in favour of non-applicant is also set aside. The application filed by the non-applicant under Section 372 of The Indian Succession Act shall be restored to file and it be decided afresh after giving an opportunity of hearing to both the side. It is made clear here that on restoration of the original proceedings, the non-applicant shall not be compelled to deposit the amount of the fixed deposit as withdrawn by them from the Shriram Group of Companies;. It is made clear here that on restoration of the original proceedings, the non-applicant shall not be compelled to deposit the amount of the fixed deposit as withdrawn by them from the Shriram Group of Companies;. In this context it is suffice to direct that the trial Court shall take appropriate security for his satisfaction to redeposit the amount, from the non applicant; if remain looser on culminating the proceeding. In the facts and circumstances of the case parties to bear their own costs. Petition allowed.