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2022 DIGILAW 285 (RAJ)

Leela Bai v. Rama Bai

2022-01-28

ANOOP KUMAR DHAND

body2022
JUDGMENT 1. With the consent of counsel appearing for both the parties, the matter is heard finally at this stage. 2. The present appeal under Section 384 of the Indian Succession Act, 1925 (hereinafter referred as 'the Act of 1925') is directed against the order dated 04.12.2020 passed by the Court of learned District Judge, Kota (for short 'the learned Court below') in civil misc. application No. 125/2020, by which the application filed under Section 372 of the Act of 1925 has been dismissed on the ground of territorial jurisdiction. 3. Brief facts giving rise to this appeal are that the applicants submitted an application under Section 372 of the Act of 1925 before the learned Court below for getting succession certificate. 4. It was pleaded in the application that the husband and father of the applicants, namely, Shri Bal Kishan was a Senior Clerk under the West Central Railway, Kota Division and while serving, he expired on 02.04.2018. After death of Bal Kishan, the applicants and the respondents approached the authorities to get the terminal benefits of the deceased. However, the authorities directed them to get succession certificate from the competent court of law. 5. In pursuance of the said direction, the applicants submitted an application under Section 372 of the Act of 1925 before the learned Court below. The learned Court below dismissed the said application on the ground of territorial jurisdiction by observing that at the time of death, the deceased was residing at Shyamgarh, Mandsor (M.P.), hence, the Court below has no jurisdiction to entertain the application. 6. Feeling aggrieved by the impugned order dated 04.12.2020 passed by the learned Court below, the applicants-appellants have preferred this appeal. 7. Learned counsel for the applicants-appellants has placed reliance upon the provisions contained under Sections 371 and 372 of the Act of 1925, which reads thus:- "371. Court having jurisdiction to grant certificate.- The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part. 372. Court having jurisdiction to grant certificate.- The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part. 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 provision 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. (2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860). (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof." 8. It appears that while deciding the application filed by the applicants-appellants, the learned Court below has not taken into consideration the provisions contained under Section 371 of the Act of 1925 which categorically states that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death or his properties are found, then the concerned District Judge may grant the succession certificate. It is contended by the counsel for the applicants-appellants that properties of the deceased are situated within the territorial jurisdiction of the learned Court below. Hence, the learned Court below was quite competent to hear and decide the application. 9. Heard counsel appearing for both the parties and perused the order impugned. 10. It appears that while passing the impugned order, the learned Court below has not taken into consideration the fact that the properties of the deceased are situated within the territorial jurisdiction of Kota. The learned Court below has overlooked the provisions contained under Sections 371 and 372 of the Act of 1925. 11. In the result, the misc. appeal filed by the applicants- appellants is allowed, the impugned order passed by the learned Court below is quashed and set aside and the matter is remanded to the learned Court below with the direction to decide the succession application afresh on merits expeditiously after taking into consideration the provisions contained under Sections 371 and 372 of the Act of 1925. 12. The parties are directed to appear before the learned Court below on 16.02.2022. 13. Stay application and other applications, if any, are also disposed of accordingly. 14. There is no order as to cost.