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2015 DIGILAW 908 (ALL)

Sundara Devi (D/O Sri Baijnth ) v. Ram Adhar

2015-04-20

ADITYA NATH MITTAL

body2015
JUDGMENT Aditya Nath Mittal, J. Heard learned counsel for both the parties' and perused the record. 2. This civil revision has been filed with the prayer to set aside the order passed by the appellate court, whereby the order passed by the Trial Court issuing succession certificate with respect to two SDTRs was set aside. 3. The brief facts of the case are that the revisionists had filed the application for succession regarding the estate of their father (late) Sri Baij Nath alleging that they are the daughters of (late) Baij Nath. The respondents had contested the said application on the ground that (late) Baij Nath was their real brother, who had executed a Will in their favour. Therefore, the revisionists were not entitled to the succession certificate. 4. After recording the evidence of both the parties, the learned trial court came to the conclusion that the revisionists-applicants are the daughters of (late) Baij Nath and the said Will as well as the edition of name of Ram Adhar creates doubt. The learned trial court held that the revisionists were best titled to the estate of (late) Baij Nath. Therefore, the application was allowed and the objections were rejected by judgement and order dated 01.12.2004. 5. Being aggrieved, the respondents have challenged the order dated 01.12.2004 in Misc. Appeal No.186 of 2004 and the appellate court held that the revisionists are entitled to the sum of Rs.39,255.56, which was deposited in the State Bank while the order regarding two SDTRs of Rs.75,000/- each was set aside. Not being satisfied, the revisionists are before this Court. 6. With this backdrop, learned counsel for the revisionists has submitted that in the summary proceedings, the learned court below could not entered into the intricate questions of fact or law but in view of the provisions of Section 373 (3) of the Indian Succession Act, 1925 (hereinafter referred to as 'Act'), the court below was competent to issue Succession Certificates. It has also been submitted that at the most, the security could have taken in view of the provisions of Section 375 of the Act. Therefore, the order passed by the appellate court is perverse and is liable to be set aside. 7. It has also been submitted that at the most, the security could have taken in view of the provisions of Section 375 of the Act. Therefore, the order passed by the appellate court is perverse and is liable to be set aside. 7. On the other hand, learned counsel for the respondents has submitted that one of the respondents Ram Adhar is the joint holder of said SDTRs and is also entitled for those SDTRs on the basis of Will executed by (late) Baij Nath. It has also been submitted that because Ram Adhar was the joint owner of those SDTRs, therefore, the said SDTRs were payable to either or survivor. Thus, Ram Adhar is entitled for the said amount in view of the endorsement on the SDTRs as well as on the basis of Will. 8. The proceedings under Part-X of the Indian Succession Act, 1925 are summary in nature and in view of the provisions of Section 387 of the Act, the same could be challenged in any suit or in any other proceedings between the same parties. It is also not disputed that by way of succession certificate, the right to collect is given and not the right to entitlement. 9. The issuance of succession certificate was contested hotly by Ram Adhar, before the court below. The learned Civil Judge (Senior Division), Faizabad has considered all the evidence on record and after appreciating the evidence on record, which includes the statement of the Bank Manager also, has come to the conclusion that the word 'self' has been interpolated by words 'former or survivor'. The Register of the Bank was also summoned in which, it was found that both the SDTRs were issued in the sole name of Baij Nath and the name of Ram Adhar has been added subsequently by another pen and another ink. It has also been observed that (late) Baij Nath was having two brothers - Ram Kumar and Ram Adhar but only Ram Adhar is trying his level best to get the money of said SDTRs. The learned court below has observed that it cannot be decided in these proceedings whether the name of Ram Adhar has been entered rightly or wrongly but because the name of Ram Adhar also finds place on the SDTRs, therefore, the succession certificate cannot be issued in favour of the daughters of (late) Baij Nath. The learned court below has observed that it cannot be decided in these proceedings whether the name of Ram Adhar has been entered rightly or wrongly but because the name of Ram Adhar also finds place on the SDTRs, therefore, the succession certificate cannot be issued in favour of the daughters of (late) Baij Nath. However, with respect to the amount deposited in the Bank i.e. Rs.39,255.56, the succession certificate has been issued in favour of the revisionists. 10. Section 373 (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. 11. Section 375 (1) of the 'Act' provides that the District Judge shall in any case in which he proposes to proceed under sub-section (3) or sub-section (4) of section 373, and may, in any other case, require as a condition precedent to the granting of a certificate, that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other sufficient security, for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities. 12. As far as the claim of respondents is concerned, if they are claiming on the basis of Will, they have to obtain probate or letters of administration before a succession certificate can be granted in view of the provisions of Section 370 of the Act. No will can be set up either to assert or defeat a claim on the basis thereof which is not probated and in respect of which no letters of administration have been granted. 13. In the present case, admittedly, no probate or letters of administration have been granted in favour of the respondents. Therefore, the claim of the respondents cannot be defeated in absence of probate or letters of administration. 14. As far as the mention of name of Ram Adhar in SDTRs is concerned, even the Bank Manager has raised doubt upon it. In the present case, admittedly, no probate or letters of administration have been granted in favour of the respondents. Therefore, the claim of the respondents cannot be defeated in absence of probate or letters of administration. 14. As far as the mention of name of Ram Adhar in SDTRs is concerned, even the Bank Manager has raised doubt upon it. During the proceedings before the learned Civil Judge (Senior Division), the Bank Registers were also summoned and it was found that initially the said SDTRs were issued in the sole name of (late) Baij Nath. The Bank Manager has also admitted that the word 'self' has been changed to 'former or survivor' and the name of Ram Adhar has been found to be added by a different pen and a different ink. The Bank Manager has also admitted in his statement that the said amount was deposited by (late) Baij Nath. It is also not disputed that the revisionists are the real daughters of (late) Baij Nath and they are Class-I, heirs while the respondents are the real brothers of (late) Baij Nath, therefore, they are Class-II heirs. The learned court below has also observed that if deceased Baij Nath had executed Will in favour of Ram Adhar and Ram Kumar, then why only Ram Adhar has got mentioned his name on the said SDTRs. 15. As mentioned herein above, in view of Section 370 of the 'Act', the claim of a person cannot be defeated on the basis of Will unless probate or letters of administration have been granted. Therefore, the respondents are not entitled for the said SDTRs in absence of probate or letters of administration. Accordingly, the findings of the learned appellate court are perverse to this extent. 16. Once the trial court has come to the conclusion that inclusion of the name of Ram Adhar on the SDTRs is subsequent and that too by a different pen and different ink, then Ram Adhar is required to prove that the said name was entered during the lifetime of (late) Baij Nath. It appears that on the basis of Will, he has got entered his name in the Bank concealing the material facts. It appears that on the basis of Will, he has got entered his name in the Bank concealing the material facts. No doubt, the working of the Bank also comes within the ambit of question mark because if Baij Nath was the sole depositor, as stated by the Bank Manager in his statement, then how and why the name of Ram Adhar was entered subsequently and why interpolation in the records was made. This is the subject matter of inquiry. 17. As far as the entitlement is concerned, in view of the provisions of Section 373 (3) of the 'Act', the court has power to issue succession certificate, if the applicant(s) has been believed to be prima facie the best title thereto. The revisionists are the daughters of (late) Baij Nath and they are the heirs of first class. Therefore, prima facie, they have the best title as compared to Ram Adhar, brother of (late) Baij Nath, who is a Class-II heir. Thus, the findings of the learned appellate court in this regard is also perverse and are liable to be set aside. 18. Accordingly, the revision is allowed. The order dated 19.02.2013 passed by the Additional District Judge, Court no.1, Faizabad is set aside and the order dated 01.12.2004 passed by the Civil Judge (Senior Division), 2nd Faizabad is upheld with the modification that before issue succession certificate with regard to two SDTRs of (late) Baij Nath, the court below shall take adequate security under section 375 (1) of the Indian Succession Act, 1925. It is also clarified that in view of the provisions of Section 387 of the Indian Succession Act, 1925, the parties are at liberty to raise this issue in any suit or proceedings of lawful entitlement of the said SDTRs. 19. With the above observations, the revision is allowed. 20. Office is directed to send the lower court record along with copy of this order to the court concerned at an early date.