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2017 DIGILAW 1824 (RAJ)

Radha Devi v. Nirmal Kumar

2017-08-11

DINESH CHANDRA SOMANI

body2017
JUDGMENT ORDER Dinesh Chandra Somani, J. - The instant appeal under section 384 of the Indian Succession Act has been preferred by the appellant against the order dated 24/09/1997 passed by the District Judge, Jhunjhunu in Civil Miscellaneous Appeal (Succession Certificate Application) Case No. 213/1996 titled as Nirmal Kumar vs. Smt. Geeta Devi & Ors., whereby the learned District Judge has allowed the application filed by the applicant-respondent No. 1 (hereinafter referred as "the applicant") against the non-applicant respondent No. 2 to 5 (hereinafter referred to as "non-applicants") under section 372 of the Indian Succession Act and granted succession certificate in favour of the applicant. Along with the appeal, the appellant filed an application under Section 5 of the Limitation Act also to condone the delay caused in filing of the appeal. 2. Brief facts necessary for disposal of this appeal are that the applicant submitted an application under section 372 of the Indian Succession Act arraying respondent No. 2 to 5 as non-applicant No. 1 to 4, stating therein that he is adopted son of late Ganpat Ram. Ganpat Ram was Pujari of Moorti Mandir Gopinathji situated in Village Kot, Tehsil Udaipurwati, District Jhunjhunu. Ganpat Ram died on 07/01/1985. It is also stated that annuity of Rs. 37.93 Paise was being paid by Devasthan Department of Government of Rajasthan to Ganpat Ram since the year 1964, but after his death, the applicant is not receiving the amount of annuity from the Government and prayed for succession certificate to obtain amount of annuity from the Government. 3. After registration of the application, notices were issued to the non-applicants No. 1 to 4 and proclamation was issued for public at large. The non-applicants No. 1 to 4 admitted the contents of the application filed by the applicant and prayed to issue succession certificate in favour of the applicant. In response to the proclamation issued by the Court, no one appeared and filed any objection to the application filed by the applicant. 4. After recording statements of the applicant as PW-1, learned District Judge allowed the application and ordered to issue succession certificate in favour of the applicant to obtain the amount of annuity Rs. 455.16 Paise only, for the period of 1985 to 1996. 5. Being aggrieved with the impugned order passed by the learned District Judge, the appellant has preferred this appeal. 6. 455.16 Paise only, for the period of 1985 to 1996. 5. Being aggrieved with the impugned order passed by the learned District Judge, the appellant has preferred this appeal. 6. Learned counsel for the appellant submits that Ganpat Ram and Nathu Ram sons of Hanumanram both were priest/pujari of the temple, as such both were entitled for V, V share of the annuity in perpetuity of the temple. The appellant is widow of Nathu Ram, as such she is also entitled for V share of the annuity. Learned counsel also submits that the applicant is not an adopted son of Ganpat Ram, while he is the natural born son of the appellant. Learned counsel also submits that concealing these material facts that Ganpat Ram and Nathu Ram were the pujaries of the temple and they were receiving amount of annuity jointly from the Devasthan Commissioner and without impleading the legal representatives of Nathu Ram on record in the application for succession certificate under section 372 of the Indian Succession Act, the applicant has submitted a misconceived application for getting the amount of annuity. In this way, the applicant has obtained the succession certificate fraudulently by concealment of material facts from the Court and the appellant prayed to quash and set aside the impugned order dated 24/09/1997, as also the succession certificate issued in favour of the applicant/respondent No. 1. 7. Learned counsel for the appellant also submits that the appellant was not having any knowledge of the proceedings and the impugned order, and now the appellant has come to know about issuance of the certificate in favour of the respondent No. 1, then she submitted application for copies on 02/11/2006 and the same were supplied to her on 08/11/2006 and she has filed the appeal on 28/11/2006, as such the appeal is within limitation from the date of knowledge and prayed to condone the delay. 8. Per contra, learned counsel for the respondent opposed the submissions of learned counsel for the appellant and supported the impugned order passed by the Court below and prayed to dismiss the appeal being devoid of any substance. 9. To decide the controversy between the parties, the relevant provisions in the Indian Succession Act, 1925 are ad infra :- 381. 8. Per contra, learned counsel for the respondent opposed the submissions of learned counsel for the appellant and supported the impugned order passed by the Court below and prayed to dismiss the appeal being devoid of any substance. 9. To decide the controversy between the parties, the relevant provisions in the Indian Succession Act, 1925 are ad infra :- 381. Effect of certificate.-Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, not-withstanding any contravention of section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. 383. Revocation of certificate.-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. 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. 10. 10. The case of the appellant is that the applicant/respondent No. 1 has obtained the succession certificate fraudulently by making false suggestion and by concealment of material facts of the case from the Court. According to Section 383 (b) of the Act, in the circumstances alleged by the appellant, she can file an application before the learned District Judge for revocation of the succession certificate. 11. The present appeal has been filed with regard to entitlement of the appellant or of the appellant and respondent No.1 both, to receive the amount of annuity (for the year 1985 to 1996) of Rs. 455.16 Paise only. As such the effect of the certificate issued in favour of the respondent No. 1 is to the extent of Rs. 455.16 Paise only and the right of entitlement for the said amount or part thereof, can be claimed by way of a suit or any other proceeding by virtue of Section 387 of the Act. 12. It is also pertinent to mention here that the appellant has not specified as to on which date and from whom, she came to know about issuance of the succession certificate and the impugned order. The appellant has not offered any satisfactory explanation for not filing any application for issuance of succession certificate in her favour to get the amount of said annuity or part thereof, and/or for not filing any application to implead her as party to the proceedings in response to the notice issued by the learned District Judge by way of proclamation and/or for condoning the delay of 3624 days caused in filing the appeal. 13. At this stage, learned counsel for the appellant prays for withdrawal of the appeal with liberty to file application under section 383 of the Indian Succession Act before the learned District Judge, Jhunjhunu. He may do so in accordance of law. 14. In view of above, the application for condonation of delay filed by the appellant under Section 5 of the Limitation Act is dismissed and the appeal is disposed of in the light of above observations. No costs.