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2015 DIGILAW 202 (ORI)

Rabinarayan Sarangi v. Tarulata Sarangi

2015-03-25

D.DASH

body2015
JUDGMENT This is an appeal under Section 384 of the Indian Succession Act 1925 (hereinafter called as “the Act”) challenging an order passed by the learned Civil Judge (Sr. Division), Bhubaneswar in Instate Case No. 10 of 2008, in the matter of an application under Section 372 of the Act filed by the respondent for grant of Succession Certificate for receiving dues of deceased Sobhamani Sadangi lying in deposit in the General Provident Found, towards Gratuity and under General Insurance Scheme on account of her service as Ex-Gang Mulia in the Office of Executive Engineer (R & B) Divison-IV, Bhubaneswar and also for receiving the amount under the TDR deposit in Indian Bank, Kharavela Nagar, Bhubaneswar as indicated in the petition. At this stage, it is pertinent to mention that the present appellant in the said proceeding in the Court below was made a party, in the very petition filed by the respondent for said grant of succession certificate. 2.Facts necessary for the purpose of this appeal are as under:- The respondent as the petitioner as the daughter and sole successor of late Kailash Chandra Sadangi and Sobhamani Sadangi, claimed her entitlement for said certificate for the purpose as described above. It is stated that the appellant as the opposite party in the Court below is the nephew of the deceased Sobhamani, being the son of Maheswar Sadangi borther of late Kailash Chandra Sadangi. In such capacity and with the relationship, he used to visit the house of the petitioner after death of Sobhamani and in course of time got acquainted with the day today affairs. It is stated that some how the opposite party managed to obtain signatures of the petitioners on some blank and other papers under the false pretext of early withdrawal of government dues in favour of the petitioner. It may be stated here that Kailash Sadangi died on 23.10.1973 while working in the office of P.W.D, C.M. Division under Executive Engineer (R & B) Division-IV, Bhubaneswar. So, on his death, his wife Sobhamani worked as a Gang Mulia getting the employment under rehabilitation scheme and on companionate ground. She died on 26.10.2006 at Bhubaneswar while in service, when she was residing at their residence at Satya Nagar, Bhubaneswar, where Kailash was also residing at the time of his death. So, on his death, his wife Sobhamani worked as a Gang Mulia getting the employment under rehabilitation scheme and on companionate ground. She died on 26.10.2006 at Bhubaneswar while in service, when she was residing at their residence at Satya Nagar, Bhubaneswar, where Kailash was also residing at the time of his death. After the death of the Sobhamani, the petitioner applied for release of the funds due on account of her service and received some amount towards part payment. However, later on she being asked to furnish the Succession Certificate has made an application as above. 3.The opposite party entering appearance challenged the status of the petitioner as claimed by her to be the daughter of Kailash and Sobhamani and so also factum of her stay with them from the time of her birth since 1966. It is specifically stated that the petitioner is the daughter of Padmanav Sadangi, the younger brother of Kailash and she was born and brought up at Jadipal having such relationship, she prosecuted her studies by staying with Kailash. It is stated that Kailash died issue less. The date of birth of the petitioner as stated in the petition to be in the year 1966 is denied and instead, it is stated that her actual death of birth is 30.10.1965. A stand has also been taken that other legal heirs of Kailash and Sobhamani though are there, have not been made parties. The opposite party claimed his right of entitlement to receive the Succession Certificate for the purpose as indicated in the petition, in view of the last Will of Sobhamani said to have been duly executed on 24.05.2001. This opposite party while denying her status as the nephew of the deceased asserted to be the grandson i.e., nephew’s son of the deceased. He also denied to have taken signature of the petitioner on any blank and other papers as alleged in the petition. It is further stated that a sum of Rs. 22,000/- was disbursed in favour of the petitioner. It is asserted that the petitioner is not entitled to the Succession Certificate as prayed for by her. The opposite party was very much loved by deceased Sobhamani in view of his sincere service rendered towards her and the care that he was taking during her old age. 22,000/- was disbursed in favour of the petitioner. It is asserted that the petitioner is not entitled to the Succession Certificate as prayed for by her. The opposite party was very much loved by deceased Sobhamani in view of his sincere service rendered towards her and the care that he was taking during her old age. So, out of love and affection and being satisfied with the service, on 25.05.2001 Sobhamani executed the Will bequeathing all her service benefits in favour of the opposite party. He had also lit the funeral pyre of Sobhamani and had performed funeral rights and the rituals as that of her son of the knowledge of the petitioner and all others. 4.Although general citation was issued, none else have come forward either to file any objection or advance any claim. The learned Civil Judge (Sr. Division), Bhubaneswar on such rival case of the parties, has gone to decide the vital issue as regards entitlement of the petitioner to the Succession Certificate a sprayed for. Considering the evidence both oral and documentary; the finding has been rendered in para-9 of the order. After narrating the state of affair, so far as the documentary evidence tendered during enquiry that the legal heir certificate Ext. 3 shows the petitioner to be the adopted daughter and opposite party to be the nephew and taking into consideration the circumstances that the original TDR accounts vide Ext. 2 and 3 were placed by the petitioner from her custody, the contention of the opposite party as regards his entitlement to the Succession Certificate on the basis of the so called Will has been dwelt upon. Thereafter, in view of the provision of Section 213 of the Act and reliance being placed on the decision of the Apex Court on M. Wilkinson Vrs. Saroj Basini Bose, AIR 1962 SC 1471 , the claim of the opposite party as regards his entitlement to the Succession Certificate has been turned down as the Will projected for the purpose has been found to an un-probated one. Next the petitioner’s HSC Examination certificate and that legal heir certificate have been referred to. Saroj Basini Bose, AIR 1962 SC 1471 , the claim of the opposite party as regards his entitlement to the Succession Certificate has been turned down as the Will projected for the purpose has been found to an un-probated one. Next the petitioner’s HSC Examination certificate and that legal heir certificate have been referred to. On the basis of those two documents answer has been given as under:- “Thus the petitioner appears to be the person having the best prima facie title to the service benefit of the deceased Sobhamani vis-à-vis, the opposite party.” 5.Learned counsel for the appellant (opposite party) submits that the view taken by the Court below in not entertaining the claim of the opposite party as it was based on an un-probated Will is wholly unsustainable. According to him, the deceased being a native of the Ex-State of Mayubhanj when the bequeath relates to the immovable property of testatrix, it is not the mandatory requirement that the Will be probated and therefore the bar contained under Section 213(1) of the Act has no applicability. It is his next contention that the determination made by the Court below with regard to the entitlement of the petitioner to receive the Succession Certificate per se does not appear to have emerged out upon due consideration of the evidence. According to him, the oral evidence laid by the petitioner is in direct conflict with the documentary evidence available on record. Therefore, the case of the petitioner that she is the daughter of Kailash and Sobhamani is placed under such thick cloud that even it is not possible to be pierced through its thickness to have a view that the petitioner has the prima facie best title over the estate of the deceased Sobhamani. Therefore, he urges that the order impugned in this appeal is untenable both in law and fact. His next contention is that on the basis of the Will, the Court below ought to have favoured this opposite party by granting a Succession Certificate as prayed for. 6.Learned counsel for the respondent on the other hand supports all in favour of the impugned order. She submits that the Court below has not gone to answer the heirship of the petitioner and in the eye of law, the same being open to challenge, the opposite party can do so in a duly constituted legal proceeding. 6.Learned counsel for the respondent on the other hand supports all in favour of the impugned order. She submits that the Court below has not gone to answer the heirship of the petitioner and in the eye of law, the same being open to challenge, the opposite party can do so in a duly constituted legal proceeding. According to her what the Court below has adopted is the right course in view of the legal provisions and the petitioner has been rightly found to be having the prima facie best title. She further submits that the evidence on record being property scanned for the purpose fully supports such a conclusion. So, she urges for dismissal of this appeal. 7.Part – ‘X’ under Chapter –XIII of the Act relates to the succession certificate. Section 370 provides that such a certificate shall not be granted with respect to any debt or security to which a right is required by Section 212 or 213 to be established by letters of administration or probate. However, the proviso reads that the said provision shall not be deemed to prevent the grant of certificate to any person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof, with respect to any debt or security, by reason that right thereto can be established by letters of administration under the Act. Section 371 concerns that the jurisdiction of the Court for granting such certificate and next Section 372 provides as to what details, the application for such a certificate should find mention and in what manner is has to be made. The procedure in the event of such an application being filed have been prescribed in Section 373.” It is provided in Section 373 that after completion of the legal formalities as stated therein, the Court shall proceed to decide in a summary enquiry as regards the right to the certificate. Sub-Section 2 of the said Section makes it clear that when the judge decides the right to the certificates to belong to the applicant, an order to that effect shall be made. Sub-Section 2 of the said Section makes it clear that when the judge decides the right to the certificates to belong to the applicant, an order to that effect shall be made. However, sub-Section 3 reads as under:- “If the judge cannot decide the right to the certificate without determining the question of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, he may never-theless grant the certificate to the applicant if he appears to be the person having prima facie the best title thereto.” As provided in sub-Section 4 that when there are more applicant than one for a certificate and it appears to the judge that for the grant more than such applicant 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 not the fitness in other respects of the applicants. Section 387 of the Act also saves the right of the unsuccessful party if he filed a suit. Thus the view, on the conjoint reading of the aforesaid provisions of law, emerges that the legislature has laid down that an enquiry in such a proceeding is to be summary in nature and the Curt without determining the question of law or fact, which seems to be too intricate and difficult for determination in an enquiry of that nature may decide that the certificate be granted for the present to one who appears to be having prima facie best title thereto. So, in such cases, the Court is not under obligation to determine finally as to who has the best right to the estate of the deceased. So, in such cases, the Court is not under obligation to determine finally as to who has the best right to the estate of the deceased. All that is required to do is to hold a summary enquiry into right to the certificate, without determining definitely and finally as to who has the best right to the estate of the deceased with a view, on the one hand to facilitate the collection of the debts and securities due to the deceased by preventing its unnecessary retention owing to the dispute between the parties inter se as to their right of succession and on the other hand to afford protection to the debts and securities by appointing a representative of the deceased and authorizing him to give valid discharge for debt and to collect the security instead of the same laying without any or proper return much to the undue advantage and gain in the hands of third parties and thereby loss to the estate or misused. The Succession Certificate is not a final adjudication of the question as to who is the next heir and as such entitled to the estate of the deceased. It is an authority to realize and receive the debt and securities of the deceased. The certificate holder however, has to dispose of the amount so realized in accordance with the rights of the persons who are entitled to it. The principle of resjudicata does not come to stand in subsequent regular suit which has been more specifically provided in Section 387 of the Act. The grant of a certificate to a person in such event does not give him an absolute right to the debt or securities nor does it bar regular suit for its adjudication so as to the rights and claims inter se and their adjustment. The legislature appears to have made ample protection by the statutory provision that inappropriate cases, the Court, as a condition precedent to the grant of the certificate, may require the person to whom it proposes to make the grant, to furnish security for indemnifying the person who may be ultimately held entitled to the whole or in part of the debt or security. In these circumstances, the proper course for the Court is to grant the certificate to one or other or under certain safeguards to both jointly, conditional on their furnishing security and leaving the question of succession for subsequent determination in a regular suit. 8.With the aforesaid, the facts and circumstances of the present case, taking into consideration the evidence available on record stand for necessary examination in the light of above, in order to judge the defensibility of the order of grant of Succession Certificate to the petitioner. Here the petitioner besides examining himself as P.W. 1 has examined one Dutia Sethi who was serving in the office of Executive Engineer (PWD), Bhubaneswar along with Kailash Chandra Sadangi. He has stated that during his usual visit to the house of Kailash, he has seen the petitioner to be residing there as daughter and that her birth was in the colony. She has her house nearby. The petitioner has also proved the original death certificate of Sobhamani (Ext.1) and most importantly the certificate of the Board of Secondary Education Orissa (Ext. 4) describing the petitioner as the daughter of Kailash to have been born in the year 1966 and passed HSC Examination in April 1984. 9.On the other hand, the evidence to counter it laid by the opposite party is mainly an un-registered Will. The other documents do not throw much of light on the required aspect and rather highly suspicions. The submission of learned counsel for the appellant as regards non-applicability of the bar contained in Section 213(1) of the Act, is not tenable for the following discussion and reason. From a plain reading of Section 213 of the Act, it is clear that sub-Section (1) prohibits persons from establishing their rights in any Court without obtaining a probate, while sub-Section (2) restricts the application of the above prohibition to classes specified in clauses (a) and (b) of Section 57. In other words, if a particular Will is not covered by clause (a) or (b) of Section 57, the prohibition u/s. 213(1) does not apply. Section 57 of the Act runs as follows:- “57. In other words, if a particular Will is not covered by clause (a) or (b) of Section 57, the prohibition u/s. 213(1) does not apply. Section 57 of the Act runs as follows:- “57. The provisions of this part which are set out in Schedule-III shall, subject to the restrictions and modifications specified therein, apply- (a) to all wills and codicils made by any Hindu, Budhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Juddicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits.” The tow clauses (a) and (b) of Section 57 relates Will and codicils by Hindus etc. made on or after 01.09.1970 within the territories specified therein or in relation to immovable property situate within those limits. The Ex-State of Mayurbhanj got merged with the province of Odisha w.e.f. 01.01.1949 and thus became a part of it followed by Administration of Mayurbhanj State Order 1949 and by virtue of that Order as indicated in its schedule the provisions of the Indian Succession Act came to be applied to the district of Mayurbhanj. The bar under Section 213(1) of the Act to be not applicable, the nativity of the testator/testatrix does not matter and is of no significance. For that the Will must not have been made within the territories specified in Clause (a) of Section 57 or that the immovable property to which they relate must not have been within those specified territories. In this case, the Will does not find mention about bequeath of immovable property situated in the Ex-State area of Mayurbhanj in particular nor it has been executed there. So, from the nativity of the testatrix it is not permissible to infer that the reference to immovable property made in the so called Will is for said property situated within the Ex-State area of Mayurbhanj. Rather the Will as it appears to have been made at Bhubaneswar with general clause of bequeath regarding movable, immovable properties of the testatrix including service benefits receivable. Rather the Will as it appears to have been made at Bhubaneswar with general clause of bequeath regarding movable, immovable properties of the testatrix including service benefits receivable. This has been the consistent view of this Court as in case of Amrutlal Majhi and others Vrs. Gopi Satuani and others; 1972(2) CWR 1451, Balram Tripathy and another Vrs. Lokanath Tripathy, AIR 1973 Orissa 112, Radha Hota Vrs Dutika Satapathy; (48)1979 CLT 211. 10.Even now accepting for a moment that no probate is necessary to make a claim on this Will and debar the legatee from claiming his rights on the basis of the Will as submitted by learned counsel for the appellant since executants is a native of Ex-State of Mayurbhanj and bequeath is concerned with immovable property situated therein and the bar contained in Section 213(1) of the Act does not stand, be it examined from another angle. Even when the bar is not applicable where the Will is placed as the basis of claim, when the same is challenged, the same to be viewed as a Will is required to be proved as per law as regards its execution and attestation in accordance with the provision of Section 63 of the Succession Act read with Section 68 of the Evidence Act. Simply leading evidence that it was the Will executed by the testator/testatrix and getting the document admitted in evidence will not assign it with the status of a Will so as to be considered and taken as such. So, here when opposite party projected that so called Will as the basis for grant of succession certificate to him, he in this enquiry though it is summary in nature is not relieved of the legal obligation to prove the said document in accordance with law. The probate being not necessary no doubt lifts the bar under Section 213(1) of the Act. But that does not give a clean chit and mean to say that said un-probated Will wherever produced even though being challenged as regards its due execution would stand for acceptance as the Will duly executed by the testator/testatrix. The probate being not necessary no doubt lifts the bar under Section 213(1) of the Act. But that does not give a clean chit and mean to say that said un-probated Will wherever produced even though being challenged as regards its due execution would stand for acceptance as the Will duly executed by the testator/testatrix. The non-applicability of the bar does not ipso facto makes the validation of the Will conclusive as in case of grant of probate by the competent Court and so also for that reason it is not permissible so say that no evidence can be admitted to impeach the Will or that it cannot be questioned in any proceeding where it is projected as the basis to claim title. In the case in hand the evidence in that regard is wholly deficient. The Court below has lost sight of this important aspect and thus has not been able to assign this also as a reason against the claim of appellant. Be that as it may, when said so called Will (Ext.4) has been produced by the appellant in evidence as the triumph card, he cannot wriggle out of its recitals. In this case interestingly in the Will testatrixs, clear cut admission finds mention that the respondent is her natural born daughter. This prima facie negates the appellant’s assertion denying the status of respondent as the daughter of testatrix. The approach of the Court below is thus being directionless; the conclusion whatever arrived at cannot be said to be the outcome of just and proper of examination of evidence as it ought to have been. One more deficiency as discussed hereinafter is apparent on the face of the order that is regarding ascertainment of the basis as the foundation for said grant. 11.In the present case, the Court below has said that the petitioner is having the best prima facie title which is contrary to the statutory provision as ordained that the Court has to find out prima facie best title. This prima facie best title is the outcome of a comparative assessment of evidence on the competing prima facie title. The Court has to see prima facie title for all and not conclusive and, then as to who is having prima facie best title that is whose pan carrying the load of prima facie title in shape of evidence is the heaviest. The Court has to see prima facie title for all and not conclusive and, then as to who is having prima facie best title that is whose pan carrying the load of prima facie title in shape of evidence is the heaviest. For all these, the conclusion as reached without even expressing whether would be reached as such or differed for grant appears to be abrupt. 12.Taking a short break from further discussion of the case in hand, at this juncture, it is felt apposite to refer to a decision of Hon’ble Apex Court in case of Vidhyadhari & others Vrs. Sukhrana Bai & others; AIR 208 SC 1420. In that case, the deceased in presence of his first wife had married antother woman and four children were born through that second wife. The trial Court held that the first wife was divorced granted the succession certificate to the second wife. The High Court held the factum of divorce to be a myth and directed the succession certificate to be granted to the first wife. The Hon’ble Apex Court accepted for the purpose that the second wife can’t claim the status as legally married wife. However, so far as the grant of succession certificate, the view that it has only to be given to legally married wife as taken by the High Court was not accepted. It has then taken the circumstances as regards second wife’s nomination, begetting four children, residing as wife with deceased for a long time into consideration and has held that; “10. Xxx xxxxxx Xxxx xxxxxxxx Xxxx xxxx xxxx. In the grant of succession certificate the Court has to use its discretion where the rival claims, as in this case, are made for the Succession Certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukharan Bai was the legally wedded wife that by itself did not entitle her to a Succession Certificate in comparison to Vidhyadhari who all through had stayed as the wife of Sheetaldeen, had born his four children and had claimed a Succession Certificate on behalf of children also. In our opinion, the High Court was not justified in granting the claim of Sukharana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs. “ 11. In our opinion, the High Court was not justified in granting the claim of Sukharana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs. “ 11. Therefore, though we agree with the High Court that Sukharana Bai was the only legitimate wife yet, we would chose to grant the certificate in favour of Vidhyadhari who was his nominee and the mother of his four children. However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen’s estate which would be 1/5th. To balance the equities we would, therefore, chose to grant Succession Certificate to Vidhyadharibut with a rider that she would protect the 1/5the share of Sukharana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give a security in the trial Court to the satisfaction of the trial Court. 13. In view of my aforesaid discussion, I find the respondent to be having prima facie best title to receive the Succession certificate in concurrence to the ultimate order of the trial Court although making a different approach and for different reasons as assigned. The appellant is at liberty to establish his right in a duly constituted civil suit. It is further directed that while receiving the Succession Certificate, the respondent would execute and indemnity bond with one surety to that extent of receivable as per the grant of Succession Certificate in order to safeguard the interest of the appellant, in the event he becomes successful in the civil suit if so instituted, it is needless to mention here that the observations made in this order, shall in no way influence the Court in seisin of the civil suit if would be so filed to decide the issue (s). 14. Resultantly, the F.A.O. stands dismissed. No order as to costs. FAO dismissed.