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2012 DIGILAW 29 (CHH)

KETKI BAI v. LEELA WATI BAI

2012-01-19

N.K.AGARWAL

body2012
ORDER 1. The instant revision filed under Section 388 (3) of Indian Succession Act, 1925 (for short 'the Act') read with Section 115 of the Code of Civil Procedure (henceforth 'the CPC') is directed against the order dated 25.08.2001 passed by the Additional District Judge, Baikunthpur in civil appeal No. 44/1999. 2. Facts in brief are as under: The applicant, claiming herself to be wife of late Nankuram, an employee of Katkona Colliery, who died on 25.02.1998, filed an application under Section 372 of the Act for grant of succession certificate in her favour with respect to the retiral dues of deceased Nankuram, lying deposited with the Katkona Colliery, S.E.C.L. The said application was object by one Smt. Leelawati inter alia on the ground that she is the legally wedded wife of deceased Nankuram and not the appellant. The trial Court, after hearing the parties, granted succession certificate in favour of the appellant. Smt. Leelawati preferred appeal under Section 384 (2) of the Act. The first appellate Court holding, complicated questions of law and fact are involved in the instant case and the same can be decided only by the Civil Court, allowed the appeal and dismissed the appellant's application for grant of succession certificate and directed the parties for declaration of their status from the Civil Court. Hence, this revision. 3. Shri Shakti Raj Sinha, learned counsel appearing for the appellant vehemently argued, the first appellate Court has acted without jurisdiction in rejecting the appellant's application for grant of succession certificate on the ground that complicated questions of law and fact are involved in this case. According to Shri Sinha, the first appellate Court should have passed the order one way or the other but it could not refrain itself from passing the order granting succession certificate in favour of any parties. For this, he placed reliance upon a decision of the Supreme Court in the case of Firm of Patnam Lakshminarayana Chetti, represented by managing partner, Patnam Lakshminarayan Chetti Vs. Grandhe Seshamma and others AIR (29) 1942 Madras 709 (9). 4. No one appears for the respondent despite service of notice. 5. I have heard learned counsel for the applicant and perused order impugned. 6. Section 373 (3) & (4) of the Act reads as under: "373. Procedure of application: ……………………………………………………………………………….. Grandhe Seshamma and others AIR (29) 1942 Madras 709 (9). 4. No one appears for the respondent despite service of notice. 5. I have heard learned counsel for the applicant and perused order impugned. 6. Section 373 (3) & (4) of the Act reads as under: "373. Procedure of application: ……………………………………………………………………………….. (3) 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. (4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.” 7. As per above provision, 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. As per sub-section (4), when there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants. 8. The above provision clearly reveals, even if, in the opinion of the judge, the matter involves complicated questions of law and facts, he may nevertheless grant a certificate to any of the party, who appears to him to be the person having prima facie the best title thereto. 9. The Madras High Court in the case of Firm of Patnam Lakshminarayana Chetti, represented by managing partner, Patnam Lakshminarayan Chetti Vs. Grandhe Seshamma and others (supra) has held: the District Judge is no doubt entitled to dismiss an application for succession certificate under S. 373 if he is satisfied that there are no grounds for entertaining it. 9. The Madras High Court in the case of Firm of Patnam Lakshminarayana Chetti, represented by managing partner, Patnam Lakshminarayan Chetti Vs. Grandhe Seshamma and others (supra) has held: the District Judge is no doubt entitled to dismiss an application for succession certificate under S. 373 if he is satisfied that there are no grounds for entertaining it. But he cannot dismiss on the ground that complicated questions fact and law would have to be gone into before it could be decided which party had the right to the succession certificate as is clear from S.373 (3) read with S.373 (2). 10. I am in respectful agreement with the above ratio of law laid down by the Madras High Court. Further as per Section 387 of the Act, no decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto. Therefore, even after grant of succession certificate, a party has every right to approach the Civil Court for adjudication of his/her right. Thus, the order impugned passed by the first appellate Court, on the face, appears to be without jurisdiction. 11. For the foregoing, since the grounds for interference are made out, the revision deserves to be and is hereby allowed. The order impugned is set aside. The matter is remitted to the Court below for deciding the appeal afresh, in the light of observations made hereinabove. 12. Records of both the Courts below be sent back to the first appellate Court forthwith. It is expected of the Court below to decide the matter expeditiously. Case Remanded.