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2013 DIGILAW 972 (ALL)

OM PRAKASH v. MISRI LAL

2013-03-22

RAJES KUMAR

body2013
JUDGMENT Hon’ble Rajes Kumar, J.—This is an appeal against the order of the II Additional District Judge, Banda dated 30.4.1988 by which he has refused to grant succession certificate in favour of the appellant, sought on the basis of the alleged Will dated 7.2.1986 executed by one Baura, son of Shiv Dayal in respect of amount of Rs. 24,749.13 p. deposited in the Central Bank in Saving Bank Account and Fixed Deposit. 2. The brief facts of the case are that appellant, Om Prakash is the son of Misri Lal and nephew of deceased Baura who died on 11.2.1986 leaving behind his two brothers, namely, Misri Lal and Durga Prasad. The appellant had one brother, namely, Sri Vijay Kumar. The appellant applied for succession certificate in respect of amount of Rs. 24,749.13 p. deposited by Baura, son of Shiv Dayal, in Central Bank in Saving Bank account and Fixed Deposit on the basis of the alleged Will dated 7.2.1986, alleged to have been executed in his favour. On the application, proclamation was issued and the publication was made in newspaper “New Karmyog Prakashan”. Durga Prasad, brother of the deceased, filed an objection stating that the deceased never executed any Will and the Will dated 7.2.1986 was forged and had been prepared with the connivance of the applicant’s own persons. It appears that in the alleged Will, which is Annexure-1 to the affidavit, on the side of the Will, there are signatures of Baura and one Sri Kanhaiyalal Vidyarathi and Phool Singh, Advocate. Sri Kanhaiyalal Vidyarathi died. However, in the proceeding, the statements of appellant-Om Prakash and Sri Phool Singh, Advocate were recorded wherein both admitted the execution of the Will in favour of the appellant. The court below has declined to issue succession certificate on the ground that the alleged Will filed by Om Prakash bears the signature of Baura at the lower portion in the left side margin and similarly signatures of two witnesses were also available on the same page; it was not registered and the reasons assigned for not registering was that the appellant was in hurry however, it has not been believed on the ground that when it is claimed that Baura had come to the court to execute the Will why he had no time to get it registered. The signature of Baura had not been got compared with any other admitted signatures though Baura was the employee of Central Bank, but the signature of Baura is also available on the back of the alleged Will; the signature available in front portion and on the back portion differs and it appears that both signatures are forged; No relation of Sri Kanhaiyalal Vidyarathi and Sri Phool Singh, Advocate has been shown with the deceased. It is not natural that a man going to execute a Will would not like to call any of his family members except the person in whose favour the Will was desired to be executed; it is also surprising that the Will was executed at the fag end of life and Baura died after 4 days from the date of execution of the Will. 3. Heard Sri V.K. Singh, learned counsel for the appellant. 4. Learned counsel for the appellant submitted that the court is not a handwriting expert and should have taken the help of the handwriting expert. The Will has been proved in accordance to Section 68 of the Indian Evidence Act, which cannot be discarded. The statements of the witnesses have not been considered nor disputed. No evidence has been adduced on behalf of the defendant to dispute the claim of the appellant. Under Section 373 (3) of the Indian Succession Act (hereinafter referred to as the ‘Act’), the court below was bound to issue certificate. The order is without jurisdiction inasmuch as, the moment the application has been rejected, the court became functuous officio and could not issue certificate in favour of other persons. The issue of certificate in favour of Sri Misri Lal and Sri Durga Prasad, the brothers of the deceased, was unjustified. 5. I have considered the submission of learned counsel for the appellant. 6. Section 372 of the Act provides mode of moving of the application before the District Judge. Section 373 (1) of the Act provides that if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day and shall proceed to decide in a summary manner the right to the certificate. Sub-Section (2) of the Act provides that when the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him. Sub-Section (2) of the Act provides that when the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him. Sub-Section (3) of the Act provides that 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. Sub-Section (4) of the Act provides that 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. In my view under Section 373 of the Act, the Judge has to satisfy himself that there is ground for entertaining the application and then after hearing he may decide the right thereto to belong to the applicant. Therefore, succession certificate can only be granted on the adjudication of the right and on satisfaction of the Judge concerned about the claim. 8. In the present case, the court below has declined to issue succession certificate in favour of the appellant on the ground that the Will is suspicious and no reliance can be placed. For the reasons, stated in the impugned order, in my view, the rejection of application by the court below is wholly justified. Perusal of the Will dated 7.2.1986, which is Annexure-1 to the stay application, reveals that it is not genuine and reliable. In normal course, the executor of the Will always put the signature on the bottom of the contents and the witnesses also sign at the bottom but in the present case, the alleged signature of the deceased is not at the bottom of the contents but on the lower side of the left margin which is unnatural. From perusal by the naked eyes, it is apparent that signature of Baura on front page and signature on the back side of the page are totally different which need no verification and need not to be verified from the handwriting expert. From perusal by the naked eyes, it is apparent that signature of Baura on front page and signature on the back side of the page are totally different which need no verification and need not to be verified from the handwriting expert. It is apparent on the face of it. The burden lies upon the appellant to prove the genuineness of the document and proving of the signature is one of the important aspect. Sri Baura was the employee of the Central Bank. His signature must be available in the Central Bank but no effort has been made to get his signature verified from the proved and recognized signature. The other reasons given by the trial court, referred hereinabove, if taken in totality, give rise an inference that the alleged Will was not genuine and was not reliable. 9. So far as the argument of learned counsel for the appellant that since the Will has been proved by producing one of the attesting witnesses as provided under Section 68 of the Indian Evidence Act, 1872, therefore, the Judge was bound to treat it genuine document and succession certificate ought to have been issued. I do not find substance in this argument. Section 68 of the Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive. Thus, section only provides the procedure for the admissibility of a document as a evidence but it does not say further that the Judge is debarred to examine the genuineness of such document. 10. However, I find substance in the argument that after rejecting the application of the appellant claiming succession certificate on the basis of the alleged Will, the Judge concerned should not have issued the succession certificate in favour of the brothers of the deceased under Section 373 of the Act. Under Section 373 of the Act, the succession certificate can only be issued on the application being made in favour of the applicant on being satisfied after deciding the right of the applicant. Under Section 373 of the Act, the succession certificate can only be issued on the application being made in favour of the applicant on being satisfied after deciding the right of the applicant. Since no such application has been moved by the brothers of the deceased while disposing of the application of the appellant, a direction to issue a succession certificate in favour of the brothers of the deceased should not have been issued. To this extent, the impugned order is erroneous and this part of the order is being set aside. 11. In the result, the appeal is allowed in part to the extent stated above. ————