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2022 DIGILAW 253 (UTT)

Mitali Shah v. Shafali Shah

2022-08-16

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. The present appeal from order under Section 384 of the Indian Succession Act, which has been preferred by the plaintiff/appellant, is as against the impugned judgment dated 24.09.2019, as it was rendered by the court of 4th Additional Civil Judge (Senior Division), Dehradun, in Miscellaneous Case No.180 of 2019, “Smt. Mitali Shah Vs. Smt. Shafali Shah and another”, by virtue of which, in an ex parte proceeding, which were held before the court below, on the appellant’s application under Section 370 of the Indian Succession Act, was rejected. 2. If the impugned judgment is taken into consideration, in fact the application, which was preferred by the present appellant before the learned court below, it was to the effect that she has invoked Section 370 of the Act, for the purposes of seeking a succession certificate in order to operate the lockers of Late Smt. Nirmala Shah @ Nalini Shah, and that of Late Mr. Chiranji Lal Shah, which was standing in the State Bank Branch, of District Dehradun. 3. Primarily by the impugned order dated 24.09.2019, the Court has rejected the application, after considering the no objections taken by the respondent in their application, being Paper No.15(b) (2), and while making reference to the judicial precedents relied by the learned court below while taking into consideration the ratio laid down by the Chhattisgarh High Court as reported in AIR (2007) Chhattisgarh 36, “Vimla Devi Vs. Shobha Walia and others”, as well as considering the ratio laid down by the Calcutta High Court in a judgment reported in 1982 AIR Calcutta (92), “State Bank of India Vs. Netai Chand Poral”, it had rather laid down, that so far as the provisions contained under Chapter 10 of the Succession Act, is concerned, since Section 370 to be read with 372 of the Act, which contemplates entertainment of the application for the grant of the succession certificate in relation to the assets of the deceased, which is being sought to be succeeded, there are certain exceptions, which are self contained as has been carved out under Section 370 of the Act, the restrictions of the grant of the succession certificate in relation to the properties, which are covered by sub-section (2) of Section 370 of the Act, its only in those eventualities part 10 of the Succession Act of 1925, would be attracted. The relevant paragraph no.6, of the judgment is extracted hereunder:- “6. The decision relied on by the learned Judge as also by the opposite party before us is also not to the point. There a lady died during the Kumbhamela tragedy and the ornaments found on her body were taken possession of by the District Authorities. On an application for the grant of succession certificate in respect of the same it was held that the refund of the ornaments became an obligation on the authorities to hand over the same or the value thereof to the rightful claimant and that for such a liability an application for succession certificate could be asked for and granted. We are, however, unable to agree to such a broad proposition that any liability owing from one person to another whether in cash or in kind, secured or unsecured, whether ascertained or ascertainable, arising out of any obligation, is a debt. In the particular case however the facts also were different in so far as it was not the deceased who had kept the ornaments with the District Authorities but that the District Authorities themselves collected the ornaments on their own and as such incurred the liability to refund the same to the rightful claimant. This aspect of the matter distinguishes the case from the facts of the case before us. Here the deceased Juthikabala had herself deposited the articles with this Bank for safe custody she had the option to go and collect it at any time she liked. The Bank was merely a custodian of the same. In ordinary parlance debt means a sum certain due from one person called the debtor to another called the creditor. In Stroud's Judicial Dictionary a debt is defined as a sum payable in respect of a liquidated money demand recoverable by action. One of the essentials of a debt is an ascertained amount or readily calculable amount. In that sense the State Bank of India in this case could not be said to stand in the position of a debtor nor could Juthikabala be called a creditor in respect of the ornaments. But that apart the more important distinguishing point is that unlike in cases of debt, the Bank had no right of disposition of any kind in respect of those ornaments. But that apart the more important distinguishing point is that unlike in cases of debt, the Bank had no right of disposition of any kind in respect of those ornaments. The Bank stood in the position of a bailee or a trustee to whom though possession was entrusted, there was no intention of transferring the ownership. It is settled law that debt is not trust and any and every liability irrespective of its true legal character does not become a debt. Since succession certificate can be granted only in respect of debts and securities and not for any other kind of property, we are of the opinion that in this case succession certificate could not be granted. In this connection reference may he made to the decision in the case of Assam Bengal Rly. Co. v. Atul Chandra MANU/WB/0027/1937. The application for grant of the same was not therefore maintainable.” 4. The Chhattisgarh High Court has observed, in its judgment reported in AIR 2007, Chhattisgarh page 36, in paragraph nos.5, 6 and 7, that since under Section 370 of the Act, “Bank lockers”, do not fall to be as one of the securities, which could be considered for the purposes of grant of succession certificate, and identical principles has been laid down by the Calcutta High Court, which has laid down that Article 370, since doesn’t extended its ambit for considering of grant of the succession certificate in relation to the lockers standing in the Bank, no succession certificate, as such, could be granted in favour of the applicant. The relevant paragraph nos.5, 6 and 7, of the judgment is extracted hereunder:- “5. From reading as a whole, the provisions as enshrined in Part X of the Act, it is as clear as crystal that the Court has only power to issue succession certificate with respect to any debt or security. 6. Security has been enlisted in Section 370(2) of the Act. Admittedly, access to locker and the ornaments kept inside it, do not fall within the list as enshrined under Section 370(2) of the Act. 7. It is well established that a sum of money which is certainty and in all events payable is a debt, without regard to the fact whether it is payable now or at future time. Access to locker and ornaments kept inside it do not fall within the definition of debt. 7. It is well established that a sum of money which is certainty and in all events payable is a debt, without regard to the fact whether it is payable now or at future time. Access to locker and ornaments kept inside it do not fall within the definition of debt. I am of the opinion that requirement to have a succession certificate for access the bank lockers or for realizing the ornaments kept inside the locker is not envisaged by Section 370 of the Act, therefore, succession certificate could not be granted for access to bank locker or articles which are lying in the locker of the bank.” 5. The present appeal from order was preferred on 14.12.2019, the respondents were noticed by an order dated 16.12.2019. Steps were taken, and there is an office report that respondent nos.1 and 2, have been served through their daughter and wife respectively. But despite of sufficient time having being lapsed, they have not put in appearance. Thereafter a fresh notices were issued, after admitting the appeal from order on 28.03.2022, and there was yet again an office report, that respondent nos.1 and 2, have been served personally. Despite of the service of the notice for the second time, the respondents have not put in appearance. Hence, this Court had no option except to pass an order on 14.06.2022, to proceed to hear the appeal from order ex parte against the respondents. Hence, the present appeal from order is being addressed by the learned counsel for the appellant on its own merits. 6. Learned counsel for the appellant had attempted to draw a distinction qua the reasoning which has been assigned in the impugned order denying to issue a succession certificate in favour of the present applicant/appellant, in view of the exceptions, that under Section 370 of the Act, “the lockers”, will not fall to be within the purview of definition of “security”, as defined and contained under Section 370 of the Succession Act. Hence, no succession could have been granted. 7. In response to it, the learned counsel for the appellant had made a reference to a judgment rendered by the Madhya Pradesh High Court, as reported in AIR 1997 MP page 196, “Sharda Chopra and others Vs. Hence, no succession could have been granted. 7. In response to it, the learned counsel for the appellant had made a reference to a judgment rendered by the Madhya Pradesh High Court, as reported in AIR 1997 MP page 196, “Sharda Chopra and others Vs. State Bank of India.” whereby the coordinate Bench of the Madhya Pradesh High Court, has yet again almost reiterated the same principles with regards to the implications of part 10 of the Succession Act, so far it limits its issuance of the succession certificate for operating the lockers, because the lockers have been held to be not to be a security falling under sub-section (2) of Section 370 of the Act. The relevant paragraph number 8 and 9 are extracted hereunder:- “8. I am of the view that that the view taken by the Calcutta and Patna High Courts seems to be correct. Not only it is correct but this is a just view. It appears that taking into consideration this aspect of the matter and with a view to provide easy access to the lockers to the heirs of the customer the bank has laid down certain guidelines. These guidelines as reproduced above safeguard the interest of the banks also. In the present case, so far as the identity of the heirs of S.L. Chopra is concerned, there is no dispute. Six of his heirs joined together to have a succession certificate. No other person objected to the succession certificate being granted in favour of the six heirs who figure as petitioners. Thus, the requisite satisfaction of the bank vis-a-vis the heirs and the claimants of Shri S.L. Chopra can be arrived at from this single factor. In addition to this, these petitioners are ready and willing to abide by the terms and conditions and the guidelines a reproduced above. 9. I am accordingly, of the view that the requirement to have a succession certificate visavis the articles lying in a bank's locker is not envisaged by Section 370 of the Indian Succession Act. For this, I would follow the Calcutta and Patna High Courts views. This view is indirectly supported by the decision given by the Punjab and Haryana High Court in the case reported as Adarsh Ratan (Col.) v. State Bank of India, Jalandhar MANU/PH/0138/1987. For this, I would follow the Calcutta and Patna High Courts views. This view is indirectly supported by the decision given by the Punjab and Haryana High Court in the case reported as Adarsh Ratan (Col.) v. State Bank of India, Jalandhar MANU/PH/0138/1987. In the above case, it has been held that it is not necessary to obtain a succession certificate and if there is a dispute then the parties can get the matter settled by approaching the civil court. In this case, the requirement as indicated by the Punjab and Haryana High Court is not required to be gone into. This is because a succession certificate already exists in favour of the petitioners. The identity of the heirs, of Shri S.L. Chopra stands duly established and identified. In this view of the matter, even though the view taken by the Court below that succession certificate is not required vis-a-vis the articles lyinginbank's locker is upheld, yet a direction is given to the bank to release the articles by following the guidelines framed by it.” 8. Learned counsel for the appellant has drawn the attention of this Court to the contents of paragraph no.9, by virtue of which, he attempts to draw a distinction that the ratio of the Jharkhand High Court, as well as, that of the Calcutta High Court, which has been taken into consideration by the impugned order of rejecting her application for the grant of the succession certificate, would be in exception to the observations made in paragraph no.9, which has been extracted above. 9. In fact, if the judgment of the Madhya Pradesh High Court, is read in its entirety and on its harmonious construction, of the provisions contained under the Banking Regulation Act No.10 of 1949, and if it is to be read along with the provisions of the Succession Act, in fact the area governing the field of operating the lockers would be covered by the provisions contained under Section 45ZF of the Banking Regulations Act of 1949. Since it will not be covered under Section 370 of the Succession Act, the exception which has been sought to be argued by virtue of making the reference to paragraph no.9, will not be applicable in the case of the appellant, because if the paragraph no.9, itself is read in its totality, the Madhya Pradesh High Court too while referring to the judgment of the Punjab and Haryana High Court, as well as that of the Calcutta High Court, has observed that the bank lockers are not envisaged to be covered by Section 370 of the Indian Succession Act, and the same principles have been reiterated to be followed, but if the concluding part of the paragraph no.9, is taken into consideration, it was yet again an exception carved out because in that case there was a pre existing succession certificate which was already issued in favour of the petitioners, therein, which is not a case here. 10. In that eventuality, when it has been consistently observed by the coordinate Benches of the different High Courts, that Section 370 of the Act, doesn’t cover within its ambit the lockers standing in the nationalized banks. In that eventuality, the applicant has got a remedy of approaching the civil court or by virtue of having his recourse to the provisions of the Banking Regulation Act, as contained under 45ZF, I don’t find any illegality in the impugned order in question. Hence, the denial to issue a succession certificate for the purposes of operating the lockers of the deceased was rightly denied by the court below, since being not covered under Section 370 of the Indian Succession Act. 11. But having said so, and reiterating the observations made in paragraph no.9, of the Madhya Pradesh High Court judgment in the matters of Sharda Chopra (Supra), it is hereby left open that it will be open for the appellant to either to resort to the civil proceedings to get a decree for enabling him to operate the lockers of the deceased or she may resort to the proceedings under Section 45ZF of the Banking Regulations Act, for the claim of possession of the articles lying in the bank lockers of the deceased, subject to the fulfillment of the procedures provided under the Banking Regulations Act. 12. With the aforesaid exceptions, the appeal from order stands dismissed.