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2017 DIGILAW 1406 (GAU)

Jawing Raj Kumar v. Jamaiko Singpho

2017-11-02

AJIT BORTHAKUR

body2017
JUDGMENT : 1. This old pending revision of 2011 under article 227 of the Constitution of India has been preferred against the order, dated 27.1.2009, passed by the Deputy Commissioner, Changlang, in Misc. (J) Case No. 01/2009 arising out of Civil Suit No. 13/08. 2. The petitioner's case, in a nutshell, is that, his father late Duwa Pisa Zawrong Rajkumar @ Bisagam Rajkumar died on 12.11.2007 leaving behind the persons, viz., (i) Zawing Rajkumar-eldest son (Petitioner), (ii) Jamaiko Singpho-2nd wife (Opposite Party) and (iii) Julung Rajkuhar — a minor son. The estate of late Bisagam Rajkumar consisted of movable and immovable properties as shown below— Immovable Properties: 1. Land (having Land Possession Certificate) measuring 288.80 Hectares leased out to Bisa Agro (P.) Ltd., Bordumsa for 50 years with effect from 1996 at annual rent of Rs. 3,21,000 (now it is Rs. 5,40,000 per annum). 2. Land (having no L.P.C.) approx 200 to 300 Hectares used and possessed by Smt. Jamaiko Singpho and drawing benefits therefrom. 3. A 3-storeyed market complex, enjoying rents and profits by Smt. Jamaiko Singpho from 2008 to up-to-date. 4. One R.C.C. building (under construction). Movable Properties: 1. L.I.C. encashed by Smt. Jamaiko Singpho where she is nominee. 2. Bank balance in Apex Bank and State Bank of India which amounted to Rs. 11,08,383. 3. Shares in Bisa-Agro (P.) Ltd., 10,000 shares @ Rs. 10 value amounted to Rs. 1 lakh. 4. Scorpio car in the possession of Smt. Jamaiko Singpho. 3. The petitioner has contended that as per the customary law of Singpho community, on death of the head of the family, the entire property, movable and immovable, devolved on his eldest son (the petitioner) and accordingly, one Umpangam Singpho, CB (Gaon Bura) of Kherembisa village, Bordumsa, issued a certificate, dated 16.10.2008. However, the opposite party, the 2nd wife of the deceased applied for a Succession Certificate, without the consent and knowledge of the petitioner, for a Succession Certificate, in respect of the debts and securities, aforementioned, left by the deceased, whereupon the Deputy Commissioner, Changlang registered Civil Suit No. 13/2008 and granted a Succession Certificate by order, dated 1.7.2008. Based on the aforesaid Succession Certificate, the opposite party had withdrawn an amount of Rs. 11,08,383 from the bank account of the deceased. 4. Based on the aforesaid Succession Certificate, the opposite party had withdrawn an amount of Rs. 11,08,383 from the bank account of the deceased. 4. Knowing about the issue of Succession Certificate in favour of the opposite party, the petitioner filed an application under section 383(b) of the Indian Succession Act, 1925 for revocation of the Succession Certificate so issued and thereupon on 21.7.2009 Misc (J) Case No. 01/09 was registered. The Deputy Commissioner, Changlang, by order, dated 21.7.2009, while issuing show-cause notice also directed the opposite party to deposit the withdrawn amount of Rs. 11,08,383 in his court for safe custody till disposal of the case. However, the said amount was not deposited. The opposite party filed written objection on 16.3.2010, in the proceeding admitting that after obtaining the Succession Certificate, she had withdrawn the money from the bank and utilised the amount for construction of the under-progressed building of her deceased husband. 5. On receipt of the notice, the petitioner and the opposite party appeared before the Addl. Deputy Commissioner, Bordumsa on 27.1.2011. The opposite party, however, appeared along with her learned Advocate Sheo Kumar Agarwal. On being asked by the Addl. Deputy Commissioner, Changlang, Bordumsa, the petitioner put his signature on a document drafted by the learned Advocate for the opposite party, which was not read over and explained to him. A copy of the document so prepared was, of course, furnished to the petitioner and later on, he could know that the land and the lease rent of M/s. Bisa Agro (R) Ltd., Bordumsa had been purportedly partitioned amongst the heirs of late Bisagam Rajkumar and thereupon, the Deputy Commissioner, Changlang passed the impugned order, dated 27.1.2011, in a nature of a family settlement between the parties, without mentioning the amount of Rs. 11,08,383, which the opposite party had withdrawn, with a direction to the opposite party to deposit the amount with the said Court as per earlier order, dated 21.7.2009. 6. 11,08,383, which the opposite party had withdrawn, with a direction to the opposite party to deposit the amount with the said Court as per earlier order, dated 21.7.2009. 6. According to the petitioner, the impugned order, dated 27.1.2011, is not a valid document on the grounds, inter alia, that a conciliation proceeding between the contesting parties is not a prescribed mode under the provisions of the Indian Succession Act, 1925 and conciliation of any dispute of such nature, may be referred to the Lok Adalat for amicable settlement under the provisions of the Legal Services Authorities Act, 1987 only and further, that the whole ancestral properties of the parties were not subjected to for such amicable settlement. Hence, prayed to set aside and quash the impugned consequential order, dated 27.1.2011, passed by the Deputy Commissioner, Changlang in Misc (J) Case No. 01/09 arising out of Civil Suit No. 13/08. 7. The opposite party in her affidavit-in-opposition contended that before applying for the Succession Certificate, the petitioner orally consented the opposite party before she applied for the Succession Certificate on 7.2.2008 and thereafter, the petitioner had put his signature on the administrative bond, dated 1.7.2008, before it was accepted and accordingly the Succession Certificate was issued by the Deputy Commissioner, Changlang on 1.7.2008. That apart, the joint petition, dated 27.1.2011, was filed with full consent of the petitioner and before filing of it, the petitioner had gone through the contents thereof. The Deputy Commissioner, Changlang disposed of the said petition filed by both the parties settling the dispute to the extent that both the parties should be entitled to equal part of share of the land and rent of M/s. Bisa-Agro Ltd., Bordumsa. The opposite party also contended that Misc. (J) Case No. 01/09 is not maintainable under section 383 of the Indian Succession Act, 1925 for revocation of the Succession Certificate, dated 1.7.2008, issued in favour of the opposite party in Civil Suit No. 13/08 by the Deputy Commissioner, Changlang as the same was issued after observing necessary formalities and the petitioner duly received notice of the said proceeding and that, the land and lease rent of M/s. Bisa-Agro (P.) Ltd., was not partitioned, rather share of right of inheritance of the parties were settled in respect of the said property, left by late Bisagam Rajkumar. Therefore, It has been prayed to dismiss the petition with cost. 8. Heard Mr. Therefore, It has been prayed to dismiss the petition with cost. 8. Heard Mr. R.B. Yadav, learned counsel appearing for the petitioner and Mr. A. Apang, learned senior counsel for the opposite party. 9. Section 383 of the Indian Succession Act, 1925 provides that a certificate granted under the Act 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 jaw 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.” 10. The impugned order, dated 27.1.2011, reads as extracted below: “This conciliation is held today. All parties present. Sri S.K. Agarwal, Advocate who is appointed as Concellator is also present. The parties have agreed to settle their dispute amicably in respect of lease rent and arrears and their shares over the land lease out; to M/s. Bisa Agro (P.) Ltd., Bordumsa. The parties are filed a joint petition stating their terms of settlement. Smt. Jamiko Singpho and her son Sri Julung Rajkumar have agreed to take jointly 50% of land and lease rent with arrears. Sri Jawing Rajkumar has agreed to take 50% of land and lease rent with arrears. The parties have agreed to have their ownership right over the leased out land accordingly. In terms of conciliation and maintain peace and harmony in between the family. I deem it proper to accept the compromise as per the settlement arrived in between the parties and accordingly the petition is allowed. The terms of settlement with joint petition shall be part of this order. Accordingly, Smt. Jamaiko Singpho and her son Sri Julung Rajkumar, jointly shall be entitled to 50% of land leased out to M/s. Bisa Agro (P.) Ltd., Bordumsa. The terms of settlement with joint petition shall be part of this order. Accordingly, Smt. Jamaiko Singpho and her son Sri Julung Rajkumar, jointly shall be entitled to 50% of land leased out to M/s. Bisa Agro (P.) Ltd., Bordumsa. A copy of this order with a copy of compromise petition be sent to all parties including M/s. Bisa Agro (P.) Ltd., Bordumsa for their compliance and pay lease rent accordingly. (Opak Gao) Deputy Commissioner, Changlang.” 11. A perusal of the above impugned order shows that the Deputy Commissioner, Changlang passed the order in presence of both the parties in a conciliation proceeding conducted by learned Advocate S.K. Agarwal and on a mutual voluntary act of the parties to the proceeding to settle the dispute between themselves concerned by an agreement. Needless to say that a compromise is always a bilateral and means at mutual adjustment for the settlement of a dispute without resorting to a formal proceeding under the law. It is, further, seen that the petitioner and the opposite party signed in an administrative bond, dated 1.7.2008, under section 291 of the Indian Succession Act, 1925 whereby, the opposite party was appointed as administrator of the estate of late Duwa Pisa Gam Rajkumar which was accepted by the Deputy Commissioner, Changlang. 12. Therefore, the impugned order, dated 27.1.2011, passed in Misc. (J) Case No. 01/09, in Civil Suit No. 13/08, being passed was consensual in nature having been signed by the parties in the petition, dated 27.1.2011, and the administrative bond, dated 1.7.2008, and further, being passed in terms of the amicable settlement arrived at by the parties, after due procedure provided in sections 373 and 375 of the Indian Succession Act, it has binding force on the parties to the said civil proceeding. The terms of settlement are being lawful and valid, the impugneid order appears to be enforceable in law and as such, it cannot be inferred that the same was obtained by the opposite party by fraud and accordingly, the revision stands. No cost. Forward a copy of this judgment and order to Deputy Commissioner, Changlang, Bordumsa.