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Rajasthan High Court · body

2011 DIGILAW 2028 (RAJ)

Mangli v. Smt. Rukmani Devi

2011-09-20

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This appeal was filed in the year 1991 assailing the judgment dated 31.10.1991 of learned District Judge, Jaipur District, Jaipur, in Application No.4/1979, by which application of the appellants for grant of probate/letter of administration under Section 276 of the Indian Succession Act, 1925, was rejected. 2. Learned counsel for appellants argued that learned District Judge has erred in law in rejecting the application for grant of probate/letter of administration on the flimsy grounds. Reasons that have been assigned are not such which create any doubt about genuineness of the will, and same are flimsy and unfounded reasons. It is argued that mere fact that objector-respondent Rukmani was real sister of testator Chatru Ram, would not be a reason to doubt about the fact that deceased testator had bequeathed the property by will in favour of the appellants, who were also looking after her for a petty long time. Other reasons that have been given by the learned District Judge that the will actually was prepared on 31.05.1967 but the death of testator Chatru Ram took place on 16.09.1978 and thus for a long period of 11 years he would have been retaining the will and yet nobody raised any suspicion about the same. It was argued that if the will, that was executed by Chatru Ram on 31.05.1967, was his last will and there was no for him to execute another will thereafter then the will would hold good. The forth reason assigned is also flimsy and unfounded that appellants were cultivating the land on sharing basis and therefore they wanted to retain the possession of the same, thus they have created this will. It is argued that even if probate is not granted, which nevertheless should have been granted, the learned District Judge erred in law in rejecting the application. The objector-respondent, despite being sister of the testator, would not have been having good relations as she left her first husband and then went in 'nata' with somebody else and that she did not care for the deceased during his life time. Now, suddenly, after his death, she appeared to claim the property, whereas the appellants were looking after him for along period he remained alive. Mere non-writing of phraseology that he bequeathed his property to the appellants out of love and affection, would not be a reason to presume that the will is doubtful. Now, suddenly, after his death, she appeared to claim the property, whereas the appellants were looking after him for along period he remained alive. Mere non-writing of phraseology that he bequeathed his property to the appellants out of love and affection, would not be a reason to presume that the will is doubtful. In every case it IS not expected that scribe of a will would be SO legally trained to draft the will in such a manner. 3. Shri R.K. Daga, learned counsel for respondents, supported the impugned judgment and referred to the findings recorded by learned District Judge on all those four issues, which have been assailed by learned counsel for appellants and argued that proceedings for grant of succession certificate are summary in nature and, if intricate questions of facts and law are found involved in view of Section 276, the learned District Judge was fully justified in declining to grant the same. It is argued that the remedy of the appellant would be to file a regular suit for declaration and/or injunction where these intricate issues of law can be effectively adjudicated upon by adducing evidence by the parties. 4. Having heard learned counsel for the parties, I find that the law is well settled on the question that the proceedings for grant of succession certificate/letter of administration are summary in nature and that any order passed in these proceedings cannot treat as res-judicata against any party. Learned District Judge has given reasons why he was not persuaded to grant succession certificate/letter of administration to the appellants. This, however, would not deprive the appellants from getting their right declared in a duly constituted civil suit, and in which case they can also claim injunction. Learned District Judge has given reasons why he was not persuaded to grant succession certificate/letter of administration to the appellants. This, however, would not deprive the appellants from getting their right declared in a duly constituted civil suit, and in which case they can also claim injunction. The provisions of Section 373(3) provides that if the District Judge is satisfied that there is ground for entertaining the application for grant of probate/letter of administration, he shall fix a day for the hearing thereof and cause notice of such 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, and to be posted on some conspicuous part of the court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate. If the 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. 5. In the circumstances, when real sister of the deceased testator has come forward to object to the grant of certificate to the appellant, who were not so closedly related to him, the appellants could not be considered the persons having prima facie best title thereto or otherwise, if eventually they succeed in establishing the correctness and genuineness of the will, they can be granted that certificate. However, the learned District Judge faced with the situation that there were questions of law and facts, "which seem to be too intricate and difficult for determination", which, according to him, cannot be decided in summary proceedings, the appropriate remedy for them would have been indeed of filing a regular suit for declaration and injunction. However, the learned District Judge faced with the situation that there were questions of law and facts, "which seem to be too intricate and difficult for determination", which, according to him, cannot be decided in summary proceedings, the appropriate remedy for them would have been indeed of filing a regular suit for declaration and injunction. It, however, goes without saying that whatever has been decided in the present matter by learned District Judge dismissing the application of the appellants for grant of letter of administration in summary proceedings, would not create any res judicata as against them nor those findings would be binding on civil court, which would be making afresh adjudication of the dispute on the basis of evidence that may be led by the parties. While not interfering with the impugned judgment, the appellants are set at liberty to file a separate suit for declaration/injunction. In doing so, the appellants shall be entitled to benefit of Section 14 of the Limitation Act on the question of limitation since this appeal has remained pending before this court for last twenty years. Status quo order is obtaining and that order would remain operative for a period of two months from today subject to any fresh order that may be passed within which time the appellants would be at liberty to file regular civil suit and pray for grant of any appropriate injunction order.With that liberty and observations, the appeal is disposed of.Appeal disposed of. *******