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2011 DIGILAW 1047 (KER)

Prasanna S. Menon v. Narayana Nair

2011-10-17

THOMAS P.JOSEPH

body2011
Judgment : 1. This revision is in challenge of the order passed by learned Sub Judge, Kozhikode while executing the decree in O.S.No.306 of 1990. That decree was obtained by one G.K.Menon for recovery of money from the respondent/judgment debtor. The decree was passed on 7.2.1991. G.K. Menon died on 6.8.1991 issues but, leaving behind his wife, Annalakshmi Amma. She died on 24.2.1692. It is stated that her sister, Sreedevi Amma executed a Will in favour of petitioners on 23.1.1995 whereby the decree was bequeathed to the petitioners. The said Sreedevi Amma died on 1.4.1996. Petitioners filed O.P.No.77 of 1994 under S.372 of the Indian Succession Act (for short, “the Succession Act”) for issue of a certificate of succession to execute the decree against the respondent as required under S.214 of the said Act. The Succession Court passed Ext.P1, order pursuant to which Annexure – 6, certificate petitioner filed E.P.No.80 of 2003 against the respondent. As I am told, notice under R.22 of O.XXI of the Code of Civil Procedure (for short, :the code”) was issued to the respondent. Respondent filed counter affidavit contending that petitioners, notwithstanding Annexure – 6, certificates are not entitled to execute the decree since they are neither legal heirs of the deceased G.K.Menon or his wife, Annalakshmi Amma, nor entitled to execute the decree being an assignee to the decree. On that objection learned Sub Judge passed the impugned order and dismissed the execution petition. 2. Learned counsel for petitioners has contended that the decision of learned Sub Judge is patently erroneous in that learned Sub Judge has not taken into account the legal effect of S.381 of the Act. According to the learned counsel, the order in the Succession proceeding operate as a judgment in rem binding the respondent and hence respondent is bound to pay the amount due under the decree. It is also contended by learned counsel that petitioners. Armed with Annexure 6, certificate is entitled to execute. Learned counsel has placed reliance on the decisions in Ganga Prasad v. Mt.Saeedan & Ors. (AIR 1952 All. 801), Smt.Sawarni v. Inder Kaur and Ors, (AIR 1996 SC 2823) and Madhvi Amma Bhawani Amma & Ors. V. Kanjikutty Pillai Meenakshi Pillai ((2000)6 SCC 301). 3. Armed with Annexure 6, certificate is entitled to execute. Learned counsel has placed reliance on the decisions in Ganga Prasad v. Mt.Saeedan & Ors. (AIR 1952 All. 801), Smt.Sawarni v. Inder Kaur and Ors, (AIR 1996 SC 2823) and Madhvi Amma Bhawani Amma & Ors. V. Kanjikutty Pillai Meenakshi Pillai ((2000)6 SCC 301). 3. Percontra, it is by learned counsel for respondent that when notice under R.22 of O.XXI was issued to the respondent, he was entitled to object to the execution of the decree by the petitioners notwithstanding that, petitioners obtained Annexure -6, certificate in their favour. It is contended by learned counsel that so far as petitioners are not the legal heirs of the decree holder or his wife who succeed to his estate nor there is any assignment of the decree in writing or by operation of law in favour of petitioners, they are not entitled to execute the decree. According to the learned counsel, it is different matter if respondent pursuant to Annexure -6, certificate paid the amount would get a complete discharge of his liability under the decree. It is also contended by learned counsel that petitioners are not entitled to the decree amount even under the Will in question since Sreedevi Amma who is said to executed the Will was not the legal heir of G.K..Menon or Annalakshmi Amma as the case may be. Learned counsel has placed reliance on Ss.15 to 17 of the Hindu Succession Act(for short, “the Succession Act”). 4. Under R.22 of O.XXI of the Code in the circumstances referred therein, before the executing court decides to execute the decree notice of proceeding is to be issued to the respondent. It is accordingly that notice was issued to the respondent and he filed a counter affidavit disputing the right of petitioners to execute the decree. PW1, who gave evidence in the executing court, on behalf of petitioners admitted that the parties follow Marumakkathayam Law of Succession. S.17 of the Succession Act says that provisions of Ss.8,10,15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkathayam Law or Aliylasanthana Law if the Act had not been passed. S.15 states that the property of a female Hindu dying intestate shall devolve according to the rules set out in S.16 in the order referred to in clauses (a) to (e). S.15 states that the property of a female Hindu dying intestate shall devolve according to the rules set out in S.16 in the order referred to in clauses (a) to (e). Clause (b) of sub-s.(2) states that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-s.(1) therein, but upon the heirs of the husband. 5. In the present case, it is admitted that G.K.Menon and his wife, Annalakshmi Amma died issueless. It is also not disputed that the property in question – decree for recovery of the amount belonged to G.K.Menon. Though, on his death the said property devolved on his wife, Annalakshmi Amma, on the death of Annalakshmi Amma since she had not left behind any son or daughter, the property has to revert to the legal heirs of her deceased husband. If that be so. Sreedevi Amma who is only the sister of deceased Annalakshmi Amma could not have acquired title over the property and could not have executed the Will in question in favour of petitioners. Petitioners could not have acquired any right over the decree by virtue of the Will, allegedly executed by Sreedevi Amma. 6. Then the next question is whether on the face of Annexure -6, certificate of succession the above contentions can be urged by the respondent. Respondent was asked to state his objection to the execution of the decree as per notice under R.22 of O.XXI of the Code was served. Under R.16 of O.XXI where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it. 7. Under R.16 of O.XXI the decree can be executed by the transferee when there is an assignment of the decree in writing or by operation of law. 7. Under R.16 of O.XXI the decree can be executed by the transferee when there is an assignment of the decree in writing or by operation of law. Referring to the provisions of S.15 and 17 of the Succession Act I stated that the Sreedevi Amma, sister of Annalakshmi Amma was not a legal heir of Annalakshmi Amma in view of S.15(2)(b) of the Succession Act; she has not inherited any right under the decree from the said Annalakshmi Amma and on the other hand, right over the property reverted to the legal heirs of G.K.Menon, the deceased husband of Annalakshmi Amma. If that be so, petitioners do not qualify to come under R.15 of O.XXI of the Code. 8. Section 381 of the Act deals with the effect of certificate of succession and states that subject to the provisions of Part X, the certificate of the District Judge shall, with respect, to the debts and securities specified therein be conclusive as against persons owing such debts or liable on such securities and shall, notwithstanding any contravention of S.370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. 9. What emerges from S.381 is that the conclusive presumption stated therein is subject to the provision of this Part X of the Act and if it affords full indemnity to all such persons as regards payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. 10. Section 372 of the Act deals with the application for certificate and states that the application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code for the signing and verification of a plaint or on behalf of a plaintiff, and setting forth particulars referred to in clause (1) to (f). Clause (c) relates to the family or other near relatives of the deceased and their respective residences. Clause (d) deals with the right in which the petitioner claims. Clause (c) relates to the family or other near relatives of the deceased and their respective residences. Clause (d) deals with the right in which the petitioner claims. S.373 of the Act states that the if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and causes notice of the application and of the day fixed for the hearing to be served on any person to whom, in the opinion of the Judge special notice of the application should be given. 11. Petitioners are neither the legal heirs of deceased G.K.Menon or Annalakshmi Amma nor could claim as legate, under Sreedevi Amma, sister of Annalakshmi Amma, If that be so, the near relatives of G.K.Menon who otherwise could have succeeded to his estate by virtue of S.15(2)(b) of the Succession Act were required to be mentioned in the application for certificate of succession filed by petitioners under S.372 of the Act. Admittedly, no such mention of near relatives of G.K.Menon was made in the application filed by the petitioners or any notice of the said application was issued to them. Instead, relatives of petitioner alone were made parties in the proceeding for grant of succession certificate. In other words, petitioner has suppressed from the notice of Court details of near relatives of deceased G.K.Menon who were entitled to get notice in the proceeding for the grant of succession certificate. In other words, the certificate obtained is without disclosing material particulars and mentioning the relatives of petitioners as near relatives of deceased G.K.Menon. That is not the certificate having conclusiveness contemplated by S.381 of the Act. 12. I referred to the presumption under S.381 of the Code. I also stated that the said presumption is subject to the provisions of Part X in which Ss.372 and 373 come. In other words, the succession certificate referred to in S.381 of the Act is with reference to the certificate which has been issued in accordance with the provision contained in Part X of the Act. Here, as aforesaid, since there was no mention about the near relations of G.K.Menon who otherwise entitled to succeed to his estate and no notice of the proceeding was issued to them Annexure – 6, certificate cannot assume conclusive character under S.381 of the Act. 13. Here, as aforesaid, since there was no mention about the near relations of G.K.Menon who otherwise entitled to succeed to his estate and no notice of the proceeding was issued to them Annexure – 6, certificate cannot assume conclusive character under S.381 of the Act. 13. I shall also refer to the decision which learned counsel has referred to me regarding conclusive character of the presumption under S.381 of the Act. Learned counsel was not able to point out that those decisions were rendered in situations like the one on hand. Therefore, those decisions cannot apply to the facts of the case. 14. Learned counsel for petitioners contend to that notwithstanding that so much time has elapsed after the Succession Court issued Annexure – 6, certificate in favour of petitioners, none of the legal heirs of G.K.Menon who could otherwise claim to succeed to his estate has come forward to execute the decree. That however is a different matter. 15. Yet another argument which learned counsel advanced is that though, respondent attempted to examine the sister of G.K.Menon, that attempt was given up midway. That also does not enable petitioners to execute the decree. 16. As aforesaid, it was within the right of respondent to pay the amount pursuant to the certificate of succession and claim total discharge or object to execution of the decree by the petitioners in answer to the notice served under R.22 of Order XXI of the Code. In the case on hand, respondent has opted for the latter-to challenge execution of the decree on the ground that petitioners have no right to do so. 17. In the light of what I have stated above the executing court was right in upholding the objection of respondent. This Civil Revision is dismissed.