Research › Search › Judgment

Meghalaya High Court · body

2017 DIGILAW 58 (MEG)

Nara G Hynniewta v. Weisuk Phanwar

2017-08-14

DINESH MAHESHWARI

body2017
JUDGMENT : Dinesh Maheshwari, J. By way of this petition for revision, the petitioner has questioned the order dated 08-06-2017, as passed by the District Council Court, Shillong in S/C Misc. Case No. 158 of 2016. 2. Shorn of unnecessary details, the relevant background aspects of the matter are that the respondent herein has filed an application for grant of succession certificate in respect of the debts and securities left by her deceased father that has been registered as S/C Misc. Case 158 of 2016 in the Court of the learned Judge, District Council Court, Shillong. In the said application, the present petitioner, being the niece of the deceased, has been arrayed as a respondent and appears to be making counter assertions of claims. 3. The subject matter of the present revision petition relates to item No. 3 in the "Schedule of the Debts and Securities", as appended to the application for succession certificate, relating to the Savings Bank Account of the deceased, bearing No. 1574100001632 with the United Bank of India, Nongthymmai Branch, IIM, Shillong carrying an amount of Rs. 28,24,266/-. The present respondent moved an application on 16-11-2016 before the Trial Court for striking out the claim as regards the said item No. 3 in the schedule appended to the application on the ground that the amount lying in the said bank account had been released by the Bank in her favour. The present petitioner contested the said application with the submission that the amount lying in the said bank account (Item No. 3 of schedule to the application) was released and transferred to the bank account of the applicant during the pendency of the contested case of succession certificate; and that the applicant got the said amount while concealing the facts that the case was still pending before the Court. The learned Judge, District Council Court, however, proceeded to observe that once the debt had already been released, it would be of no use to include the same in the application for succession certificate; and if the opposite party (petitioner) was aggrieved with such release of money in favour of the applicant, she could agitate the matter "separately in some other forum". The learned Judge, therefore, proceeded to allow the application while observing as under: "After careful perusal of the same and also after careful consideration of the matter, I am of the considered opinion that as per sub-section 3 of Sect 372 of the Indian Succession Act, a petition for succession certificate can be made in respect of any debt or debts due to the deceased creditor. Hence, I am of the view that if there is no debt, the question of petition for grant of a succession certificate does not arise. Meaning that since the debts mentioned in serial No. 3 of the petition is no longer with the debtor bank, therefore, the question of applying for a succession certificate for the same no longer arise. Further, as appear from the case record, the debts and securities mentioned in Serial No. 3 of the petition, the concerned bank has transferred and released prior to the Court's Order dated 24.11.2016. Therefore, I am of the considered view that as the debts has been released/transferred, hence I am of the opinion that it is of no use to include the debts at Sl. No. 3 of the petition in the said succession petition. However, if the Opp. Party is aggrieved with such release/transfer, she can agitate the matter separately in some other forum. Therefore, in view of my above observations, petition No. 888/16 is allowed and the Petitioner is hereby allowed to strike out the debts mentioned in Sl. No. 3 of the schedule annexed to the succession petition and to amend the schedule of the debts and securities. Petition No. 888/16 is allowed and the same is hereby disposed off. Fix 29.06.2017 for filing of amended petition." 4. Questioning the order aforesaid, learned counsel for the petitioner has argued that the claim for succession certificate by the respondent being a contested one and, the Trial Court having already framed the issues and posted the matter for evidence, there was no reason to grant any such prayer so as to drop one of the items forming the subject matter of inquiry. Learned counsel has also argued that the money lying in the said bank account was released in favour of the respondent only in the month of September, 2016 i.e. after filing of the application for succession certificate and, obviously, the respondent got the money transferred to herself by concealing the fact about the pendency of the proceedings in the court. 5. Learned counsel for the respondent (the applicant) has, on the other hand, duly supported the order impugned with the submission that the transfer of money by the Bank to the daughter of the deceased account holder cannot be said to be unjustified; and once such transfer had taken place, the said property is not available for disbursement or distribution and hence, the learned Trial Court has rightly removed the same from consideration in the application for succession as filed by the respondent. 6. Having given thoughtful consideration to the rival submissions and having examined the record, this Court is unable to endorse the order impugned and finds it rather imperative to set aside the same with further necessary observations and directions. 7. It is not a matter of debate that the said amount of Rs. 28,24,266/- lying in the Saving Bank Account No. 1574100001632 of the United Bank of India, Nongthymmai Branch, IIM, Shillong was specifically stated as part of the "Schedule of the Debts and Securities" in the application for succession certificate. It is, thus, not at all in dispute that at the time of filing the application, the respondent was conscious of the availability of the said amount in the said bank account. This Court would not be making any comment on the correctness or otherwise of the course adopted by the Bank in transferring the said amount to the account of the respondent, but in any case, it remains certain that the succession certificate was indeed sought in respect of such an amount as a part of the available Debts and Securities of the deceased, the father of the respondent. The fact of the matter remains that the claim of succession is being contested by the petitioner. In view of the contest so put forward, the Trial Court has already framed the issues and has posted the matter for evidence. The fact of the matter remains that the claim of succession is being contested by the petitioner. In view of the contest so put forward, the Trial Court has already framed the issues and has posted the matter for evidence. In the circumstances of the case, this Court is clearly of the view that there was no justification in the Trial Court deleting one of the items stated in schedule appended to the application for succession certificate by way of interlocutory order. All the other aspects of the matter, including those related with the effect of such transfer during the pendency of the application could also be, and rather ought to be, dealt with and pronounced upon at the time of final decision of the case. 8. In the given set of circumstances, reference to Sub-Section (3) of Section 372 of the Indian Succession Act, 1925 appears to be rather misplaced because the said amount in the bank account was indeed included in the application. Such an application seeking succession certificate cannot be decided in piecemeal; and the entire matter deserves to be decided as a whole. 9. For what has been observed hereinabove, this revision petition deserves to be allowed with necessary observations for appropriate proceedings. 10. Accordingly, the impugned order dated 08-06-2017 is set aside. The application filed by the applicant (respondent) bearing No. 888/16 in the Court of learned Judge, District Council Court, Shillong shall stand revived for final decision in accordance with law only at the time of final judgment in the main case (S/C Misc. Case No. 158 of 2016). 11. The revision petition stands disposed of accordingly. 12. The record of the Trial Court be returned immediately. 13. The parties through their respective counsel shall stand at notice to appear before the Trial Court on 28th August, 2017.