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Madhya Pradesh High Court · body

2012 DIGILAW 474 (MP)

Geeta Choudhary v. Anamika Tiwari

2012-05-01

K.K.TRIVEDI

body2012
Judgment This revision is directed against the order dated 13-7-2006, passed in Misc. Civil Appeal No. 80/2005, by the 9th Addl. District Judge, Jabalpur, arising out of order dated 30-9-2005, passed in Succession Case No. 29/2005 by the 15th Civil Judge, Class-I, Jabalpur, whereby the succession certificate has been granted to the respondents and the objection filed by the petitioners have been rejected. 2. Facts giving rise to filing of this revision are that one Bhawani Prasad Tiwari was having landed property at Jabalpur. He was succeeded by his widow Smt. Premkanti Tiwari, daughters and only son Satish Tiwari. The daughters, the petitioners herein executed a general Power of Attorney in favour of their brother, namely, Satish Tiwari, authorising him to enter into an agreement with a builder and promoter for the purposes of demolition of the bungalow belonging to the family, construction of multi storied building, the shops and residential flats, enter into the agreement for the purposes of letting out the constructed building to the tenants and realising of the rent. Consequent upon execution of the general Power of Attorney, said Satish Tiwari entered into an agreement with the builder and promoter, building was constructed and the same was let out. The rent of shops and flats was being collected by said Satish Tiwari and was being depositing in the account in M. P. Rajya Sahkari Bank. Said Satish Tiwari died leaving behind the respondents No. 1 to 4 as legal representatives. The amount from the bank account was earlier withdrawn by said Satish Tiwari, but at the time of the death of Satish Tiwari, an amount of Rs.1,10,000/- was credited in the said bank account. 3. The respondents moved an application under section 372 of the Indian Succession Act (hereinafter referred to as the Act for short) for grant of a succession certificate for the purposes of withdrawal of the amount credited in the account of said Satish Tiwari in the aforesaid M. P. Rajya Sahkari Bank. Initially in the application only Smt. Premkanti Tiwari was made the party respondent along with General Public. However, the petitioners made the objection in the said proceedings contending that the amount deposited in the aforesaid bank account was not the sole property of said Satish Tiwari and, in fact, it was belonging to the joint Hindu family. Initially in the application only Smt. Premkanti Tiwari was made the party respondent along with General Public. However, the petitioners made the objection in the said proceedings contending that the amount deposited in the aforesaid bank account was not the sole property of said Satish Tiwari and, in fact, it was belonging to the joint Hindu family. There was no partition amongst the member of the family and, therefore, unless an apportionment is done, succession certificate for the withdrawal of the whole of the amount deposited in the bank could not be granted in favour of the respondents only. The objection was rejected, a succession certificate was granted by the Succession Court in favour of said respondent. Therefore, an appeal was preferred in the lower appellate Court under section 384 of the Act. The said appeal has been dismissed by the impugned order, therefore, this revision is required to be filed. 4. It is, vehemently, contended by learned counsel for the petitioner Shri R. K. Verma that such an order could not have been passed by the Court below when it was amply proved that the amount credited in the bank account of said Satish Tiwari was not his sole property, but was the property of joint Hindu family. It is pointed out by the learned counsel for the petitioner that admittedly Satish Tiwari was having no source of income as was admitted by his widow, therefore, the periodical deposits made in the said account was nothing but the rent amount of the building which admittedly was constructed on the strength of a general Power of Attorney on the land belonging to the joint Hindu family. The right to transfer the said property was never conferred nor it was made clear that the other joint family members have relinquished their right of claiming any interest in the joint Hindu family property. It was not proved that the amount deposited in the account was sole income of said Satish Tiwari and, therefore, the succession certificate was not to be granted in such a case. It is contended that where such disputed facts were required to be examined, instead of granting the succession certificate, the Courts below were required to pass the orders that such disputes were to be decided first and then only the claim for grant of succession certificate could be made. It is contended that where such disputed facts were required to be examined, instead of granting the succession certificate, the Courts below were required to pass the orders that such disputes were to be decided first and then only the claim for grant of succession certificate could be made. It is also contended that by granting a decree in a suit brought by Abhishek Tiwari, the respondent No. 3 herein, a decree of partition is already passed and that being so, the Courts below were not right in passing the order of grant of succession certificate to the respondents. Thus, it is contended that the orders impugned are bad in law and are liable to be set aside. 5. In reply to such submission of learned counsel for the petitioners, learned counsel for respondents Shri J. K. Verma, has contended that no illegality was committed by the Courts below in granting a succession certificate to the respondents. It is contended that the dispute was not with respect to only one bank account in the suit which was filed by the respondent No. 3 and the judgment and decree passed in that case, being subsequent, would not have any bearing in the orders passed by the Succession Court on an application of the respondents at earlier stage. Later decision of the Court would not be sufficient to set aside the order passed by the Succession Court on earlier occasion. It is contended that the law is well settled in this respect and since lawfully proceedings have been done, no error of jurisdiction is committed by the Court below, the order need not be interfered with. 6. Heard learned counsel for the parties at length and perused the record. 7. Ex.D/1 is the general Power of Attorney said to be executed by the petitioners on 27-7-1990. This document categorically contains the conditions for which such Power of Attorney was executed. A perusal of this document will make it clear that it was only for the purposes of construction of a building in the name and style of 'Bhawani Bhawan' on the land of bungalow Nos. 397, 398 & 398/1 Gol Bazar Ward, Wright Town, Jabalpur. Ex.D/2, the agreement with the builder and promoter, is said to be executed by Satish Tiwari and Smt. Premkanti Tiwari, son and widow of late Shri Bhawani Prasad Tiwari. 397, 398 & 398/1 Gol Bazar Ward, Wright Town, Jabalpur. Ex.D/2, the agreement with the builder and promoter, is said to be executed by Satish Tiwari and Smt. Premkanti Tiwari, son and widow of late Shri Bhawani Prasad Tiwari. It categorically contains the conditions that the building was to be constructed as 'Bhawani Bhawan' on the lands of the aforesaid Bungalow and rent is to be recovered by the Party No. 2 that means the builder, but half of the rent is to be paid to the Party No. 1 that means to Satish Tiwari and Smt. Premkanti Tiwari. The important condition with respect to recovery of the rent are mentioned in conditions No. 4, 6 and 7. Execution of such a Power of Attorney though disputed but learned counsel for respondents could not point out any action taken with respect to challenging such a Power of Attorney. Not a single evidence is produced to demonstrate that such a Power of Attorney was not executed. Even otherwise, it is not disputed that the petitioners were member of joint Hindu family. If they were the member of joint Hindu family, they had a right to claim a share in the said property. If that was the situation, it was to be demonstrated that the rent deposited in the account of Satish Tiwari or the money credited in the said account was not from the income of joint Hindu family and it was absolute income of said Satish Tiwari. Of course in the income of Satish Tiwari independently earned, which had no relation with the joint Hindu family property income, the petitioners would not have any claim and only the respondents would have been entitled to claim succession, but if it was not demonstrated that the amount deposited in the bank account was solely from the income of said Satish Tiwari, or if it was demonstrated by producing the evidence that the amount deposited in the bank account of Satish Tiwari was from the income of the joint Hindu family property, the succession certificate was not to be granted to the respondents. 7. To examine such a situation, the other documents produced by the petitioners before the Court below are examined. Documents Ex.D/3 to Ex.D/14 are the receipts said to be issued by said Satish Tiwari to the tenants with respect to the rent received by him. 7. To examine such a situation, the other documents produced by the petitioners before the Court below are examined. Documents Ex.D/3 to Ex.D/14 are the receipts said to be issued by said Satish Tiwari to the tenants with respect to the rent received by him. Some of the amounts were paid by cheques. It is not disclosed by the respondents in their evidence that Satish Tiwari was having any other bank account where the said cheques could have been deposited. On the other hand, by producing a notice, it is demonstrated by the petitioners that not only the Manager of the Co-operative bank where the account of Satish Tiwari remained, was called upon, not to close the said account or to permit the respondents to make a drawl from the said account, but a ledger statement of the said account was also obtained and exhibited as evidence by the petitioners as Ex.D/15. The deposit made in the said account indicates that the cheques received by said Satish Tiwari from the tenants towards the rent were credited in the said bank account. Thus, there was ample proof of the fact that the amount deposited in the said bank account by Satish Tiwari was including the income from the joint Hindu family property also. That being so, unless an apportionment is shown, it could not have been said that the amount deposited in the bank account was solely payable to Satish Tiwari only and for that purposes a succession certificate could have been granted to the respondents. 8. The evidence in this respect is examined. In the statement made by respondent No. 1, the widow of said Satish Tiwari, it is clear that she has categorically contended that her husband was in the employment only upto the year 1982. He started his own work, but he was not given any regular appointment. She has admitted in the cross-examination that her son has filed a suit for partition of the joint Hindu family property against the petitioners and Smt. Premkanti Tiwari. She has not disputed the fact that certain money was deposited by Satish Tiwari in the said account and an amount of Rs. 2 lacs was withdrawn from the said bank account just two days before the death of said Satish Tiwari. She has not disputed the fact that certain money was deposited by Satish Tiwari in the said account and an amount of Rs. 2 lacs was withdrawn from the said bank account just two days before the death of said Satish Tiwari. She has also not disputed that the construction of Bhawani Complex (Bhawani Bhawan) was done under an agreement by her husband and he was realising the rent of the said building. She has further admitted that her husband was having a share in the building 'Bhawani Bhawan'. However, she has completely failed to give any satisfactory reply to the question how the money withdrawn just two days before the death of her husband was utilised. The other witness examined by the respondents is daughter of Satish Tiwari and she too has admitted the fact that her father was realising the rent of 'Bhawani Bhawan', but she said that the said amount was always distributed amongst the members of the family as per their entitlement. On the other hand, the evidence is adduced by the petitioners and the witness of the petitioners has categorically further proved all the documents referred to hereinabove. Not a single question is there to indicate that the dispute with respect to execution of Power of Attorney was there. This being so, the Courts below were not right in assessing the evidence in appropriate manner. 9. This fact is also not disputed that a judgment and decree has been passed in Civil Suit No. 25-A/2006 by the 15th Addl. District Judge, Jabalpur and the said suit has been filed by the respondent No. 3 herein against the petitioners. The said suit is decreed on 3-3-2007. The property of Bhawani Bhawan is also included in the suit property. The decree is passed that the respondent No. 3 is entitled to 1/9th share in the said property and, accordingly, it is also held that he is entitled to 1/9th share in the rent recovered towards the property. Though such a judgment and decree is challenged in an appeal filed before this Court, merely because the judgment and decree is challenged, it cannot be said that the judgment and decree is not in operation till it is set aside. Though such a judgment and decree is challenged in an appeal filed before this Court, merely because the judgment and decree is challenged, it cannot be said that the judgment and decree is not in operation till it is set aside. Further, the effect of judgment and decree is that there is certainly a dispute with respect to the apportionment of the joint Hindu family property which includes the bank account of said Satish Tiwari also and, therefore, there was no question of grant of succession certificate only in favour of respondents. In the case of Indranarayan vs. Roop Narayan, 1972 MPLJ (S.C.) 305 = AIR 1971 SC 7962, the Apex Court has considered the aspect of presumption in the jointness of Hindu joint family. The law laid down by the Apex Court is that there will be a presumption that there is no separation in the joint Hindu family unless it is proved. The separation is not proved. It is nobody's case that there was a partition in between the family members of the joint Hindu family and the shares in the family were defined and separated with respect to each and every member. If that being so, the another presumption would be that the income though deposited in the name of one member of the family unless specifically proved that the said income was of the said member only and having no connection with the business of the joint Hindu family, that the said deposit is also to be treated as deposit out of the income of the joint Hindu family. Here the question of presumption is not necessary as it is amply proved by the petitioners by producing the documents that said Satish Tiwari was not only receiving the amount of rent of the joint Hindu family property from the tenants, but it is also amply proved that the said income was being deposited in the bank account of said Satish Tiwari only. Thus, question of presumption does not arise. 10. As against the aforesaid, learned counsel for respondents has placed reliance on a decision of the Apex Court in the case of Banarsi Dass vs. Mrs. Tikku Dutta and others, Appeal (Civil) No. 2918/2005, decided on 27-4-2005, contending that in view of the law laid down by the Apex Court, the objection raised by the petitioner was rightly rejected. 10. As against the aforesaid, learned counsel for respondents has placed reliance on a decision of the Apex Court in the case of Banarsi Dass vs. Mrs. Tikku Dutta and others, Appeal (Civil) No. 2918/2005, decided on 27-4-2005, contending that in view of the law laid down by the Apex Court, the objection raised by the petitioner was rightly rejected. On scrutiny of such a judgment of the Apex Court, it is clear that the facts and circumstances in the present case are totally different than the case of Banarsi Das (supra). Here the material evidence is available to indicate that succession certificate could not have been granted only in respect of the respondents. May be that such a certificate will not give any general power of administration on the estate of the deceased, but the fact remains that the property of the joint Hindu family is involved, its income is involved and without the apportionment of the same amongst the member of the family, the succession certificate could not have been granted in favour of the respondents. 11. One more aspect is required to be seen. At the time of evidence of the respondent No. 1, she has categorically admitted that her son has brought the suit for partition of the joint Hindu family property against the petitioners. If the Court was informed about such a litigation, it was the duty of the Court to await the decision on the said suit, as a contrary right in the garb of grant of succession certificate, was not to be created in favour of respondents. As has been pointed out hereinabove, the said suit has been decreed granting 1/9th share to the respondent No. 3. That being so, for the entire bank account, the succession certificate could not have been granted to the respondents. 12. Consequently, this revision is allowed. The order dated 13-7-2006, passed in Misc. Civil Appeal No. 80/2005, by the 9th Addl. District Judge, Jabalpur and the order dated 30-9-2005, passed in Succession Case No. 29/2005 by the 15th Civil Judge, Class-I, Jabalpur, are hereby set aside. The application made for grant of succession certificate to the respondents is hereby dismissed. There shall be no order as to costs. Revision allowed.