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2010 DIGILAW 82 (JK)

Ajit Kaur v. Public In General

2010-02-23

MUZAFFAR HUSSAIN ATTAR

body2010
1. The expression "ordinarily resided" appearing in Section 5 of the Succession Certificate Act, 1977 (for short Act of 1977) requires to be interpreted. Section 5 of the Act is reproduced as under :- "Court having jurisdiction to grant certificate The District Court within the jurisdiction of which the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, then within the jurisdiction of which any part of the property of the deceased may be found, may grant a certificate under this Act." 2. The facts relevant for disposal of this appeal are that appellants filed application for grant of certificate to enable them to collect the debts of late Suraj Singh being his legal heirs, before the court of ld District Judge, Srinagar. The application was heard and decided by Id first Additional District Judge Srinagar (for short the ld Judge). The ld judge vide its order dated 12th Dec. 2009 dismissed the application on the ground of lack of territorial jurisdiction. It is this order which is challenged in this appeal. 3. Late Suraj Singh belonged to Gulshanpora Tral and passed away on 3rd May 2009 at Jammu. Late Suraj Singh was working in Steel Authority of India at Jammu. At para 3 of the application, the appellants pleaded that the "ordinary residence" of the deceased at the time of his death was 254-Jawahir Nagar Srinagar. It was also pleaded that late Suraj Singh died at Jammu as he was stationed there because of being posted there. It was also pleaded that appellant no.1 is the widow of the deceased while as appellant No.2 is his only daughter. The claim in respect of debts and securities was laid on the ground that as the deceased was working with Steel Authority of India at Jammu and died during harness so appellants are entitled for grant of Succession Certificate for collection of debts. 4. After publication of notice in daily News paper, statements of appellants and their witnesses were recorded by the ld Judge. After hearing the ld counsel for the appellants, the order impugned in this appeal was passed. 5. Heard Ld. counsel for appellants. Considered the matter. 6. The admitted facts appearing in this case are that late Suraj Singh originally belonged to Gulshanpora Tral. After hearing the ld counsel for the appellants, the order impugned in this appeal was passed. 5. Heard Ld. counsel for appellants. Considered the matter. 6. The admitted facts appearing in this case are that late Suraj Singh originally belonged to Gulshanpora Tral. His family resided at 254-Jawahir Nagar Srinagar while at the time of his death he was at Jammu being posted there. The question that crops for consideration of the court is as to what would be the meaning of the expression the "deceased ordinarily resided at the time of his death" in the facts of this case. 7. Admittedly petitioner belonged to Gulshanpora Tral. The ordinarily residence of the deceased is mentioned as 254-Jawahir Nagar Srinagar at para 3 of the application. The appellants have also given same address before the ld Judge while deposing in support of the application for grant of Succession Certificate. 8. The Ld. Judge while rejecting the application of the appellants for the grant of Succession Certificate has held that abode of the deceased in terms of para 2 of the petition, being Gulshanpora Tral, accordingly, such place is the ordinarily place of residence of the deceased and it is district Court at Pulwama which has jurisdiction to grant the certificate as prayed for. Ld Judge has further held that at the time of his death the deceased was not having fixed place of residence. Accordingly, the District Court within whose jurisdiction any part of the property of the deceased may be found is having power to grant the certificate under the Act of 1977. The ld Judge has also ruled that Jawahir Nagar Srinagar where the appellants are residing cannot be said to be "ordinarily residence" of the deceased, thus the court at Srinagar lacked the jurisdiction to grant Succession Certificate to the appellants. 9. A persons "ordinarily residence" is the place which is called his home. This is the place where he resides and intends to return when away. "Ordinarily residence" has reference to his home, and home is a place where one lives with his family. Where ones home is situated that would be the place where a person would ordinarily reside. 9. A persons "ordinarily residence" is the place which is called his home. This is the place where he resides and intends to return when away. "Ordinarily residence" has reference to his home, and home is a place where one lives with his family. Where ones home is situated that would be the place where a person would ordinarily reside. A person may be born at one place that may be called his birth place but it is not necessary that it would for all times to come continue to remain the place where he would ordinarily reside. A person may migrate from his place of birth to another place. A person where he settles with his family and lives would constitute the place where he would ordinarily reside. A person in pursuit of his avocation and/or place of posting may remain away from the place where he "ordinarily resides", so place of posting/work would not be called the place where he "ordinarily resides". Since he would return to the place where his family lives which otherwise is called home would thus, be called place where he "ordinarily resides". 10. The legislative policy is to looked for ascertaining the meaning of the expression used in a statute. The Act of 1977 is an Act to facilitate the collection of debts of succession and afford protection to parties paying debts to the representatives of the deceased person. The legal heirs of the deceased would thus be entitled in view of the plain language of Section 5 of the Act of 1977 to file the proceedings in the District Court where the deceased ordinarily-resided at the time of his death. As the principal home of the deceased at the time of his death was Jawahir Nagar Srinagar where he lived with his family members so this would be place where deceased ordinarily resided at the time of his death though, he died away from home at a place where he was posted for discharging of his duties. 11. "Ordinarily resided" is a conjunctive text and is to be considered in the-back drop of Act and purpose to be achieved through such enactment. 12. The purpose to be achieved through Act of 1977 is the collection of debts, and the District Court where the deceased "ordinarily resided" at the time of his death will have jurisdiction to grant such succession certificate. 13. 12. The purpose to be achieved through Act of 1977 is the collection of debts, and the District Court where the deceased "ordinarily resided" at the time of his death will have jurisdiction to grant such succession certificate. 13. The perusal of the application seeking grant of succession certificate coupled with the statements recorded on oath of the appellants do show that the deceased ordinarily resided at Jawahir Nagar Srinagar. The District Court at Srinagar, is thus having jurisdiction to pass orders in accordance with the law on the application filed under the Act of 1977. 14. For the above stated reasons, this appeal is allowed. The order impugned in this appeal is set aside. The ld Judge to consider the application of the appellants on its merits and pass orders in accordance with law with promptitude. Registry to send back the trial court record.