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2017 DIGILAW 467 (ORI)

Jagadish Chandra Parija (dead) represented Through his substituted Legal Heirs v. Sreechandra Parija

2017-04-25

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Revision Petition has been filed under the provisions contained in Section 388 (3) of the Indian Succession Act assailing the orders of the original authority involving Intestate Case No.11 of 2007 rendered by the learned Civil Judge (Sr. Divn.) First Court, Cuttack and the order of the appellate authority confirming the judgment involving the Intestate Case No.11 of 2007 vide F.A.O. No.28 of 2011 being passed by the learned District Judge, Cuttack. 2. Short background involved in the case is that Sri Chandra Parija, Rabindra Kumar Parija, Purna Chandra Parija claiming to be the sons of late Padma Charan Parija died on 17.2.1978, all filed the Intestate Case No.11 of 2007 for grant of succession certificate on account of death of their father Padma Charan Parija on the premises of permanent place of his residence at Tertang, under Tirtol Police Station in the District of Jagatsinghpur. Claiming to be the only successor of late Padma Charan Parija, they claimed that late Bauribandhu Parija of village Tentulipada had duly adopted late Padma Charan Parija in accordance with law, customs and practice in the year 1951. Consequently, a registered adoption deed was also executed and since his adoption. It is claimed that Jagadish Chandra Parija severed all his relationship with the petitioners and succeeded to all properties of Bauribandhu Parija. In the voter list also he has been enrolled as S/o-Bauribandhu Parija and thus, claimed that Jagadish Chandra Parija is the son of Bauribandhu Parija for all purposes. Being the sons of late Padma Charan Parija these three sons also claimed that their late father Padma Charan Parija had brought some shares in the Company namely M/s. National Foundary Rolling Mills Ltd., which is now in liquidation and after settling the assets a sum of Rs.1,70,750/- had been found due to the late father of the petitioners namely Patiram Parija @ Padma Charan Parija. On death of Padma Charan Parija on 17.2.1978 on the basis of a communication of the official liquidator dated 31.1.2007 claimed to be undelivered for the change in the address of the father of the petitioners temporarily and the letters somehow fell to the hands of the opposite parties therein. Taking full advantage of the situation made claim to the aforesaid money in the Office of the Official Liquidator falsely claiming to be the son of late Padma Charan Parija. Taking full advantage of the situation made claim to the aforesaid money in the Office of the Official Liquidator falsely claiming to be the son of late Padma Charan Parija. Coming to know that the order has been passed in favour of the Official Liquidator and as the claim of the opposite parties therein was completely false, the petitioners raised objection and the amount was withheld asking the parties to produce the succession certificate justifying their claim and as a consequence, they filed the Intestate Case in the Court of competency at the relevant point of time for grant of succession certificate in their favour in exercise of power under Section 372 of the Indian Succession Act. On their appearance, the opposite parties therein the legal heirs of late Jagadish Chandra Parija filed objection challenging the maintainability of the proceeding before the trial Court. For the residential address of the deceased involved therein also challenged the validity of the registered adoption deed stated to have been created on falsehood and on suppression of material facts. Under the above premises, the opposite parties therein i.e. the present petitioners requested the original Court to reject the Intestate Case both on account of maintainability as well as merit but ultimately, submitted that the present petitioners i.e. the opposite parties therein have no objection in the event, the succession certificate is granted in favour of both the parties to the proceeding. Learned trial Court framed the following issues : “(i). Whether the present application is maintainable in the present form? (ii). Whether the opp.parties entitled for succession certificate along with the petitioners being the son of the deceased Patiram Parija? (iii). Whether the opp.party has no right to make any claim over the schedule of claim mentioned in the petition, as he is the adopted son of Bauribandhu Parija for all acts and purposes? (iv). To what other reliefs the parties are entitled for?” Both the parties contesting the Intestate Case examined their respective witnesses as P.W. 1 and O.P.Ws 1 & 2. (iv). To what other reliefs the parties are entitled for?” Both the parties contesting the Intestate Case examined their respective witnesses as P.W. 1 and O.P.Ws 1 & 2. Petitioners therein exhibited ten documents marked as Exts.1 to 10 whereas the opposite parties-the present petitioners exhibited one document and marked as exhibit-A. Basing on the pleadings of the parties and further the evidence through oral and material laid by the respective parties, the trial Court dealing with the issue Nos.2 & 3 taking into consideration the law of land rendered by this Court answered on both the issues in favour of the petitioners therein. Answering on the aforesaid issues, the trial Court observed that for a clear case of father’s permanent residence being in the Cuttack District and for the above observation, the trial Court while accepting the permanent address of the deceased in the district of Cuttack also answered on the questions relating to cause of action involving the petitioners therein in the Court at Cuttack in favour of the petitioners therein and in answering the issue No. iv refused to enter into the question of adoption deed observing that unless the adoption deed is done away by the appropriate Court, the Court dealing with the Intestate Case has no jurisdiction to touch such issues. On appeal at the instance of the present petitioners, the District Judge, Cuttack touching all the points at the instance of the present petitioners being the legal heirs of the original opposite party in the Intestate Case and taking into consideration the judgment passed by the trial Court in the intestate case disposed of the F.A.O No.28 of 2011 against the appellant thereby conforming the judgment by the original Court. 3. The present Civil Revision Petition arises against the above orders. Advancing his argument, Sri P.K. Rath, learned counsel for the petitioners reiterating his stand allthrough that the Intestate Case was not maintainable before the Court at Cuttack, submitted that the proceeding involving the succession issue was not maintainable. 4. 3. The present Civil Revision Petition arises against the above orders. Advancing his argument, Sri P.K. Rath, learned counsel for the petitioners reiterating his stand allthrough that the Intestate Case was not maintainable before the Court at Cuttack, submitted that the proceeding involving the succession issue was not maintainable. 4. Learned counsel for the petitioners further taking resort to the objections of the appellants in the trial Court as well as in the appellate Court on the aspect of adoption deed submitted that since there was a dispute with regard to adoption deed, in the event, the Courts below have maintained the Intestate Case but however keeping in view the challenge to the adoption deed should have at least protected the interest of the petitioners over the disputed property while granting the succession certificate. 5. Referring to the decisions in the case in between Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. as reported in AIR 2007 Supreme Court 1077, in the case in between C.K. Prahalada and others vrs. Stte of Karnataka and others as reported in (2008) 15 Supreme Court Cases 577 and a case as reported in (2008) 2 SCC 238 Sri Rath, learned counsel further contended that for the judgments rendered by the Hon’ble Apex Court, in the interest of justice the proceedings should have been concluded by the Courts below protecting the share of the petitioners subject to however, a decision on the validity of the adoption deed by the competent Court of law. 6. Sri D.P. Mohanty, learned counsel for the opposite parties i.e. the petitioners in the Intestate Case while objecting the contentions raised on behalf of the petitioners contended that the question of maintainability of the Intestate Case as well as the power of the Court dealing with the grant of succession certificate considering the merit of adoption deed have all been considered and both the Courts below in one tone held that not only the Intestate Case is maintainable in the Court at Cuttack but also held that the question of validity of registered adoption deed cannot be made subject in succession case involving the intestate proceeding. Sri Mohanty, learned counsel also submitted that for the concurrent finding of fact rendered by both the Courts below, there appears no scope for interfering in such cases in exercise of revisional power. Sri Mohanty, learned counsel also submitted that for the concurrent finding of fact rendered by both the Courts below, there appears no scope for interfering in such cases in exercise of revisional power. Referring to the Section 16 of the Hindu Adoption and Maintenance Act, Sri Mohanty, learned counsel further submitted that once an adoption deed is registered following the provisions contained in Section 16 of the Act, such question shall not be opened to be amenable in the proceeding deciding the grant of succession certificate. It is under the premises, Sri Mohanty, learned counsel for the opposite parties prayed for dismissal of the Civil Revision Petition. 7. Considering the rival contentions of the parties and taking into consideration the evidence through oral as well as materials available in the original proceeding, the trial Court found that Ext.1 i.e. the death certificate of Patiram Parija @ Padma Charan Parija issued by the Registrar, Birth & Death on 31.3.2007 being expired on 17.2.1978 by the Registrar, Birth & Death-cum-Medical Officer in-charge, P.H.C. Manijanga in the district of Jagatsinghpur where place of death of Patiram Parija @ Padma Charan Parija was mentioned to be at Tertanga in the undivided district of Cuttack. Similarly, from Ext.2 i.e. the legal heir certificate granted by the Tahasildar, Tirtole on 9.8.2007 established that the present petitioners are the only legal heirs being the sons and the certificate was also granted for withdrawal of the money from M/s. National Foundary Rolling Mills Ltd. involving Misc. Case No.921/2007. Similarly, Ext.3 is the certified copy of the deed of acknowledgement of adoption executed by Bauribandhu Parija clearly acknowledging the opposite party to be his adopted son, which acknowledgement deed is remaining valid as on date. From Ext.4, it was also apparent that the certified copy of sale deed had a clear indication where the father of the present petitioners had described himself to be the son of Bauribandhu Parija. Exts.5 & 6 also establish the same. On scrutiny of Ext.7, a certified copy of the voter list of the year 2001 of Tirtole Constituency disclosing the name of the present petitioners as voter at Sl.No.918 holding No.147 where Jagadish Chandra Parija to be showing as the son of Bauribandhu Parija. Ext.8 i.e. the certified copy of the money lending license granted by the Sub-Registrar, Tirtol also establishes the father’s name of the opposite party as Bauribandhu Parija. Ext.8 i.e. the certified copy of the money lending license granted by the Sub-Registrar, Tirtol also establishes the father’s name of the opposite party as Bauribandhu Parija. Taking into consideration the gist of the matter, the trial Court has categorically found that not only the opposite parties failed to discharge the burden of proof but they had also not come to the Court with clean hand particularly when in their evidence they have admitted that they have made a false representation before the Court below during cross-examination and it is in the above premises, learned trial Court came to hold that the opposite parties herein and the petitioner in the original court was right in making a petition for succession certificate in a Court at Cuttack. On perusal of the order passed by the appellate authority, this Court finds, the appellate authority taking into consideration all the above and considering the contentions raised by the petitioners in the appeal confirmed the finding with regard to the maintainability of the proceeding. This Court finds no reason to disagree with the above findings. 8. Coming to the provisions contained in the Section 372 (1) of the Indian Succession Act, this Court finds the followings: “372. This Court finds no reason to disagree with the above findings. 8. Coming to the provisions contained in the Section 372 (1) of the Indian Succession Act, this Court finds the followings: “372. Application for certificate.-(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908), for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:- (a) the time of the death of the deceased; (b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits; (c) the family or other near relatives of the deceased and their respective residences; (d) the right in which the petitioner claims; (e) the absence of any impediment under section 370 or under any other provisions of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and (f) the debts and securities in respect of which the certificate is applied for.” The provisions contained in Section 372(B) of the Act given a rider to a party for applying for succession certificate has the choice of filing the petition either at a place of original residence of a deceased or the place where the property of the deceased situates. From the discussions of both the Courts below and the permanent residence of the deceased being at Cuttack, this Court finds no force in the submission of the learned counsel for the petitioners with regard to the maintainability of the proceeding in a Court at Cuttack and thereby affirms the view of the original authority as well as the appellate authority in the said regard. 9. 9. Coming to consider the question as to whether the authorities deciding the grant of succession certificate have the power to go into the dispute involving the registered adoption deeds, this Court for the restricted jurisdiction assigned with the competent authority in the matter of grant of succession certificate under the Indian Succession Act, 1925 and the proceeding being of limited nature, this Court is of the opinion that the Court dealing with the grant of succession certificate has no authority to enter into the registered adoption deeds. Before parting with the case, this Court observes that in both the proceedings, the petitioners have the specific case that there exists a registered adoption deed and the registered adoption deed has never been the subject matter to any litigation questioning the same and this Court thus finds, the finding of both the Courts below on the issue of adoption is well justified. Looking to the decisions cited by the learned counsel for the petitioners and as reflected in paragraph No.6, this Court finds, all the decisions cited from the side of the petitioners since standing on different footing, none of the decisions has any application to the case at hand. 10. Under the circumstances, this Court finds no merit in the revision petition and thus, while dismissing the Civil Revision Petition, this Court confirms both the orders passed by the authorities below. No cost.