These Sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus Section 387permits the filing of a suit or other proceeding even though a succession certificate might have been granted.
16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors. reported in MANU/SC/0393/2000 : AIR2000SC2301 . In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the CPC, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held that Section 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the CPC. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case.
PETITIONER:
JOGINDER PAL
Vs.
RESPONDENT:
INDIAN RED CROSS SOCIETY & ORS.
DATE OF JUDGMENT: 29/09/2000
BENCH:
K.T. THOMAS , R.P. SETHI , & S.N. VARIAVA
Citation: AIR2000SC3279,2000)8SCC143, [2000]Supp3SCR626, 2001(1)UC69
This Appeal is against a Judgment of the Punjab &
Haryana High Court dated 5th October, 1999 by which the
second Appeal filed by the Appellant herein has been
dismissed.
Briefly stated the facts are as follows:
One Ms. Raj Mohini possessed moveable and immovable
properties. She was unmarried and did not have any issue.
She executed a Will dated 2nd April, 1985 in favour of the
1st Respondent, which is the Indian Red Cross Society. The
Appellant is related to Ms. Raj Mohini. He is the son of
the maternal uncle of the lady. On 12th June, 1987 Ms. Raj
Mohini executed another Will by which she cancelled the
earlier Will and bequeathed all her properties to the
Appellant. The said Raj Mohini died on 27th April, 1998.
(For sake of convenience she will hereinafter be referred to
as the said deceased.) The 1st Respondent applied for a
Succession Certificate in respect of the movable assets of@@
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the said deceased. They claimed to be beneficiaries under@@
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the Will dated 2nd April, 1985. When the Appellant learnt
about this Application he got himself impleaded as a party
to that Application. The Appellant also filed a Petition
for probate of the Will dated 12th June, 1987. The 1st
Respondent applied for stay of this Petition under Section
10 of the Code of Civil Procedure on the ground that the
parties and issues, in the Probate Petition and in their
Application for Succession Certificate; were the same. The
Probate Petition was stayed. In the Application for
Succession Certificate the Court raised issues as follows:@@
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"1. Whether Miss Raj Mohni executed a valid Will dated
2.4.1985 in favour of the Red Cross Society-appellant as
alleged ?"
2. Whether Miss Raj Mohni executed a valid Will in
favour of Joginder Pal, respondent no. 2 on 12.6.87 as
alleged ?"
Parties were allowed to lead oral and documentary
evidence. Ultimately by an Order dated 30th March, 1993 the
Application was dismissed. The operative part of the Order
reads as follows:
"5. For the above stated reasons I do not find any
merits in the instant application and therefore the same is
dismissed. However, the respondent namely, Joginder Pal is
entitled to receive the liquid assets of deceased Raj Mohni
as her only legal heir on the basis of will executed in his
favour by deceased Rajmohni during her life time in sound
disposing mind. The said will is Ex. R.1 dated 12.6.87 on
the record. The respondent no. 2 is directed to file
security in the sum of Rs. 2,50,000/- by filing a personal
bond and surety bond. The application is disposed of
accordingly. File be consigned to the record room."
Thus a Succession Certificate was granted to the
Appellant in respect of the Will dated 12th June, 1987. The
Appellant withdrew his Probate Petition. At this stage, it
must be mentioned that, on 20th August, 1996, an Appeal
filed by the 1st Respondent against the Order dated 30th
March, 1993 was dismissed. A Revision filed against that
order was dismissed by the High Court on 10th October, 1996.
1st Respondent then filed this Suit for a declaration that
they were the lawful owner and in possession of the assets@@
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of the said deceased. They have based their claim on the@@
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Will dated 2nd April, 1985. The Appellant filed an
Application that the plaint did not make out any case and
that it should be rejected under Order VII Rule 11 of the
Code of Civil Procedure. By an Order dated 18th January,
1997 the Trial Court rejected the plaint under Order VII
Rule 11 C.P.C. The 1st Respondent preferred Civil Appeal
No. 73. By a Judgment dated 5th April, 1997 this Appeal
was allowed. The case was remanded back for trial on
merits. The Appellant preferred Second Appeal No. 14 of
1997. This was dismissed by the impugned Judgment dated 5th
October, 1999. Mr. Sohal submitted that the impugned
Judgment should be set aside inasmuch as a full trial had
already taken place in the Application, filed by the 1st
Respondent, for Succession Certificate. He submitted that
those proceedings were not disposed off in a summary manner.
He submitted that issues had been raised, parties had been
allowed to lead evidence. He submitted that a decision on
merits had been given by that Court. He submitted that the
1st Respondent now could not claim any rights under the Will
dated 2nd April, 1985. He also relied upon Explanation VIII
of Section 11 of the Code of Civil Procedure. He submitted
that the principles of res-judicata would also apply. In
support of his submission Mr. Sohal relied upon the case of
Smt. Sawarni v. Smt. Inder Kaur and others reported in@@
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1996(7) JT S.C. 580. In this case it has been held by this@@
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Court that rights flowing from a succession certificate
cannot be ignored without getting it annulled. It has been
held that the lower Court committed a serious error of law
in ignoring the Will and the succession certificate which
unequivocally clinched the issue. It must, however, be
noted that these observations are made in the context of the
facts of that case. In that case, the plaintiff had filed a
suit claiming her share in the property of the deceased on
the basis of a Will and a Succession Certificate obtained by
her. The lower Court had, on basis of oral and documentary
evidence, concluded that the plaintiff had no right in the
assets of the deceased. The lower Court had ignored the
Will and the Succession Certificate. It is in that context
that the above observations had been made. Mr. Sohal also
relied upon the case of Mohan Lal v. Kartar Singh reported
in 1995 Supp (4) SCC 684. In this case, the effect of
Sections 43 and 47 of the Pepsu Tenancy and Agricultural
Lands Act, 1955 were considered. This Court held that even
though proceedings under Section 43, were summary in nature
the legislature did not exclude from the purview of Section
43 cases where disputes were complicated because of facts
and pleas raised by the contesting parties. This Court held
that the decision of the Collector becomes final in the
sense that it could not be called in question in any Court.
The finality attached to the decision of the Collector was
in view of Section 47. This Section barred jurisdiction of
Civil Courts in matters which were required to be settled,
decided and/or dealt with by the Collector. Relying on
these two decisions Mr. Sohal submitted that even though
proceedings for successions certificate are summary in
nature, the finding given therein and the succession
certificate issued cannot be ignored without getting it
annulled. He further submitted that in cases like the
present case where issues had been raised, evidence had been
led by the parties and the Court did not proceed in a
summary fashion the finding would also become final and
would operate as res-judicata between the same parties. In
order to consider the submission of Mr. Sohal the
provisions of the Indian Succession Act require to be looked
into. The Indian Succession Act deals with grant of Letters
of Administration (with or without the will being annexed
thereto) or grant of Probate or grant of Succession
Certificates. It is admitted that, by virtue of Section 57,
it is not necessary to apply for Letters of Administration
or Probate in the States of Punjab and Haryana. The
deceased Mohini was a resident of Punjab and, therefore, no
probate was required. It must, however, be noted that
Section 273 of the Indian Succession Act, provides that
probate or letters of administration have effect over all
the property and estate, movable or immovable, of the
deceased throughout the State in which they have been
granted and such probate should be conclusive as to the
representative title of the executor or legatee. Part X of
the Indian Succession Act deals with Succession
Certificates. Sections 373, 383(e) and 387 are relevant.
They read as follows: "373. Procedure on application.- (1)
If the District Judge is satisfied that there is ground for
entertaining the application, he shall fix a day for the
hearing thereof and cause notice of the application and of
the day fixed for the hearing- (a) to be served on any
person to whom, in the opinion of the Judge, special notice
of the application should be given, and (b) to be posted on
some conspicuous part of the court-house and published in
such other manner, if any, as the Judge, subject to any
rules made by the High Court in this behalf, thinks fit, and
upon the day fixed, or as soon thereafter as may be
practicable, shall proceed to decide in a summary manner the
right to the certificate. 2. When the Judge decides the
right thereto to belong to the applicant, the Judge shall
make an order for the grant of the certificate to him. 3.
if the Judge cannot decide the right to the certificate
without determining questions of law or fact which seem to
be too intricate and difficult for determination in a
summary proceeding, he may nevertheless grant a certificate
to the applicant if he appears to be the person having prima
facie the best title thereto. 4. When there are more
applicants than one for a certificate, and it appears to the
Judge that more than one of such applicants are interested
in the estate of the deceased, the Judge may, in deciding to
whom the certificate is to be granted, have regard to the
extent of interest and the fitness in other respects of the
applicants. (emphasis supplied)
383. Revocation of certificate.- A certificate granted
under this Part may be revoked for any of the following
causes, namely:- xxx xxx xxx xxx xxx xxx (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."
These Sections make it clear that the proceedings for grant
of succession certificate are summary in nature and that no
rights are finally decided in such proceedings. Section 387
puts the matter beyond any doubt. It categorically provides
that no decision under Part X upon any question of right
between the parties shall be held to bar the trial of the
same question in any suit or any other proceeding between
the same parties. Thus Section 387 permits the filing of a
suit or other proceeding even though a succession
certificate might have been granted. This question was also
considered by this Court in the case of Madhvi Amma Bhawani@@
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Amma & Ors. v. Kunjikutty Pillai Meenakshi Pillai & Ors.@@
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reported in JT 2000 (5) SC 336. In this case after having
considered the provisions of Sections 370 to 390 of the
Indian Succession Act as well as Section 11 of the Code of
Civil Procedure, it has been held that any adjudication
under Part X does not bar the same question being raised
between the same parties in a subsequent suit or proceeding.
It has been held that Section 387 of the Indian Succession
Act takes a decision given under Para X of the Indian
Succession Act outside the purview of Explanation VIII to
Section 11 of the Code of Civil Procedure. It has been held
that Section 387 gives a protective umbrella to ward off
from the rays of res judicata to the same issue being raised
in a subsequent suit or proceeding. We are in full
agreement with the view expressed in this case. In view of
the specific provisions of law it is not possible to accept
Mr. Sohal's submissions. Section 387 specifically permits
the 2nd Respondent to file a subsequent suit. Merely
because issues were raised and/or evidence was led, does not
mean that the findings given thereunder are final and
operate as res-judicata. Even in summary proceedings issue
can be raised and/or evidence can be led. The proceedings
remain summary even though the Court may, in its discretion,
permit leading of evidence and raising of issues. So in a
subsequent suit the crucial issues must be decided afresh
untrammelled or uninfluenced by any finding made in the
proceedings for grant of Succession Certificate. In this
view of the matter, we see no substance in this Appeal. The@@
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same stands dismissed. There will be no order as to costs.@@
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