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Madhya Pradesh High Court · body

2016 DIGILAW 817 (MP)

Tara Devi v. Rambihari

2016-09-15

D.K.PALIWAL

body2016
ORDER 1. This civil revision has been preferred under section 115 of Code of Civil Procedure, 1908 being aggrieved with the order passed by the Additional District Judge Lahar, District Bhind in Civil Appeal No.02/04 on 27.7.2005 whereby, the order passed by Second Civil Judge Class 1st Lahar in Case No.5/03 (succession) on 18.12.2003 has been confirmed. 2. Respondent No.1 Rambihari filed an application under section 372 of Indian Succession Act claiming succession certificate with respect to FDR of Rs.40,000/- issued by the State Bank of India Alampur, District Bhind and also amount deposited in saving account of deceased-Gulabrani. It is stated that deceased Gulabrani has executed a Will on 20.8.2003 with respect to her movable and immovable property in favour of the applicant. Deceased Gulabrani was not having any issue and any heirs. Deceased Gulabrani and the applicant were the members of joint Hindu family. Deceased-Gulabrani was residing with the applicant throughout her life and expired on 28.8.2003. On behalf of the State Bank, a reply was filed wherein, it was stated that there is one saving account (old) No.2/6928 and new No.01193335355 in which amount lying is Rs.23,635/- and another saving account No.01190005345 balance amount is Rs.843/-. It is stated that deceased Gulabrani has made Taradevi as her nominee. The learned Court below after recording the evidence allowed the application and declared the respondent No.1 as legal heir of deceased-Gulabrani and issued a succession certificate. Being aggrieved the applicant has preferred an appeal which has also been dismissed. Being aggrieved this civil revision has been filed. 3. It is submitted that the Courts below have committed illegality and material irregularity in passing the impugned order. Applicant has not been given opportunity of hearing. The learned Court below erred in not considering that when a person is claiming succession on the basis of Will, the succession certificate cannot be granted. It is further submitted that in absence of asking the probate of the Will, the application was not maintainable. The appellant being sister of the deceased-Gulabrani is entitled to be declared as successor. The respondent No.1 is not covered under the category of legal heir under Hindu Succession Act, therefore, it is prayed that impugned order be set aside. 4. Learned senior counsel appearing on behalf of the respondents supported the impugned order. It is submitted that proceeding for revocation of certificate ought to have been filed. 5. The respondent No.1 is not covered under the category of legal heir under Hindu Succession Act, therefore, it is prayed that impugned order be set aside. 4. Learned senior counsel appearing on behalf of the respondents supported the impugned order. It is submitted that proceeding for revocation of certificate ought to have been filed. 5. I have considered the submissions of learned senior counsel of the parties. It is not disputed that the succession certificate has been issued in favour of respondent No.1. From the record of the Courts below, it appears that the appellant was not a party in the proceedings. 6. Learned senior counsel appearing on behalf of the respondents submitted that the grant of succession certificate cannot be challenged by preferring an appeal or civil revision before this Court. The appellant should have filed proceeding for revocation of succession certificate under section 383 of the Indian Succession Act. Reliance has been placed on a decision in the matter of Deity Laipakhangba Khoubomba, represented by Saikhom Purno Singh [ AIR 1961 Manipur 52 (V 48 C18)], wherein it has been held : “(5) Where there was no such contest in the District Court and where the proceedings to obtain a certificate were defective in substance or the certificate was obtained fraudulently by the making of a false suggestion or by the concealment from the Court of something material to the case or where the certificate was obtained by untrue allegations of fact as contended by the appellant in appeal, the proper procedure for the appellant is to file an application under section 383 of the Succession Act for revocation of the certificate. There is no period of limitation for such an application as in the case of an appeal. When this was pointed out to the appellant’s learned Advocate, his argument was that under section 383 he can only get the certificate revoked at best and he cannot get a certificate himself and hence he has come by way of appeal. It seems to me that his remedy has been misconceived by the appellant and that he should first apply to get the certificate revoked and if he succeeds, in that then he should file an application himself for the grant of a certificate to him. He cannot come by way of appeal when he was not a party at all before the District Judge. He cannot come by way of appeal when he was not a party at all before the District Judge. Further section 387 of the Succession Act makes it clear that no decision under part X upon any question of right between any parties shall be held to bar the trial of the same question in any suit. Thus, the appellant could file a regular suit for the establishment of his right. It is not possible for me in this appeal without any evidence on the side of the appellant to hold that he should be preferred for an issue of a certificate as against the respondent. Thus, even on the merits, the appellant has no case. The appeal is accordingly dismissed with the costs of the respondent.” Section 383 of the Indian Succession Act makes provision for revocation of certificate. This section reads as under : “383. A certificate granted under this Part may be revoked for any of the following causes, namely : (a) that the proceedings to obtain the certificate were defective in substance; (b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (d) that the certificate has become useless and inoperative through circumstances; (e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.” 7. In the instant case, it is contended by learned counsel for the applicant that the order has been passed without giving him opportunity of hearing. As noticed earlier, in the reply submitted by the bank, it was mentioned that in one of the account, the deceased Gulab Rani made Tara Devi as her nominee. Even then, she has not been impleaded as a party. Hence, the grant of certificate is liable to be revoked under section 383 of the Indian Succession Act. 8. Impugned order reveals that the leaned court below has also observed that petitioner can also chhallenge the Will by filing a civil suit. Even then, she has not been impleaded as a party. Hence, the grant of certificate is liable to be revoked under section 383 of the Indian Succession Act. 8. Impugned order reveals that the leaned court below has also observed that petitioner can also chhallenge the Will by filing a civil suit. Section 387 of the Indian Succession Act reads as under : “387. Effect of decisions under this Act, and liability of holder of certificate thereunder. 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.” 9. In view of the provisions of sections 383 and 387of Indian Succession Act in the opinion of this Court, the applicant can file a petition for revocation of the succession certificate in view of section 383 of the Indian Succession Act and also can file a civil suit challenging the Will. 10. In view of the aforesaid analysis, the submissions of learned senior counsel for the applicant that probate has not been asked, the Will has not been proved in accordance with law and respondent No.1 is not covered under the category of legal heir under Hindu Succession Act, need not to be considered. 11. In view of the aforesaid discussion, this civil revision is devoid of merit and deserves to be dismissed and is hereby dismissed.