Orissa High Court
Sachidananda And Anr. vs Bichitrananda And Ors. on 4 April, 1990
Equivalent citations: AIR 1990 Ori 172
Bench: D Mohapatra
1. The application jointly filed by the revision petitioners and the opposite parties 1 and 2 underSection 372 of the India Succession Act, 1925 (hereinafter referred to as "the Act") was registered as Misc. Case No. 31 of 1986 in the Court of the Subordinate Judge, First Court, Cuttack. In the said case the opposite parties 3, 4 and 5 were impleaded as the opposite parties. Bichitra-nanda Lenka (opp. party No. 1), Sachidananda Lenka (petitioner No. 1) and Ajaya Kumar Lenka (opposite party No. 2) were sons of late Baikuntha Nath Lenka; Kabita Kumar Lenka (petitioner No. 2) was the widow of Bijaya Lenka, a pre-deceased son of Baikuntha Nath Lenka. Smt. Annapurna Lenka, Ananda Kumari Lenka and Gundicha Kumari Lenka (opp. parties 3, 4 and 5) were the widow and minor daughters respectively of late Jachindranath Lenka, another predeceased son of late Baikuntha Nath Lenka. On consideration of the case of the parties, the learned Subordinate Judge by his order dated 3-12-87 held that the applicants and the opposite parties are the heirs of late Baikuntha Nath Lenka and as such have interest in the properties left by him, particularly the deposit of Rs. 10,000/- in the Gopalpur Post Office in the five years' scheme bearing No. 1618510, the deposit of Rs. 18,001.20 in the S. B. Account No. 1112223 and Rs. 291.83 in the U. Co. Bank bearing Account No. 1031. He further held that the applicants are entitled to 4/5th of the entire amount and the opp. parties to 1/5th of it. On the statement made by opposite party No. 1 Bichitrananda Lenka on oath that he is the elest son of late Baikuntha Nath Lenka and is entitled to get the succession certificate permitting him to withdraw the 4/5th share of the applicants, the learned Subordinate Judge ordered that the succession certificate be issued in favour of Bichitrananda Lenka (petitioner No. 1 before him) permitting him to withdraw 4/5th share of the deposited amount given in the schedule of the application. It appears from the order dated 6-2-65 that a sum of Rs. 1123.50 which was deposited in the Court was permitted by the Court to be withdrawn for preparation of succession certificate. Long thereafter the revision petitioners filed the application dated 4-8-89 purportedly under Sect ion 333 of the Act and Section 151, C.P.C., registered as Misc. No. 25 of 1989 with the following prayer :
"Under the circumstances the petitioners pray that the Misc. Case may be allowed and the order dated 3-12-87 passed in Misc. Case No. 31/86 may be modified to the effect that the petitioners Nos. 1 and 3 may withdraw their 1/5th share out of the deposit made by Sate Baikuntha Nath Lenka and in the order portion 'Succession Certificate be issued in favour of the petitioner No. 1 Bichitrananda Lenka, son of late Baikuntha Nath Lenka of village Gopalpur, P. S. Sadar, District Cuttack to withdraw 4/5th share of the deposited amount" be corrected excluding the share of the present petitioners, opp. Party No. I may be directed not to withdraw the share of the present petitioners. Necessary direction may be given to the present petitioners to withdraw their 1/5th share each."
The question of maintainability of this application was considered by the learned Subordinate Judge and by the impugned order he rejected the application as not maintainable.
2. On perusal of the impugned order, it appears that the learned Subordinate Judge held the application to be not maintainable mainly on two grounds : that no relief has been sought by the petitioners for revocation of the certificate and the averments in the petition also do not satisfy the ingredients of Section 383 of the Act. The Court further observed that the petition was filed merely for correction of the errors appearing in the order passed in Misc. Case No. 31 of 1986 and since the said order was passed considering the facts and circumstances of the case and there was no clerical or arithmetical error arising out of accidental slip, there was no scope to correct the order in exercise of the power under Section 151 or Section 152 of the Civil Procedure Code.
3. On careful consideration of the matter, I find little scope to interfere with the impugned order. As noticed earlier, the application under Section 372 of the Act was filed jointly by the petitioners and the opp. parties in the present proceeding. It is expressly provided under Sub-section (1) ofSection 372 that application for a certificate shall be made by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure for the signing and verification of a plaint. Section 373 of the Act prescribes the procedure to be followed on the application filed under Section 372. From the provisions in Sub-sections (2), (3) and (4) of the section it is clear that when the Judge is to decide the right to the certificate to belong to the applicant, the Judge shall make an order for grant of certificate to him; 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 thereby, and 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. From these provisions, it appears to me that there is no scope for grant of a certificate jointly to several claimants. Therefore, in the facts and circumstances of the present case, the learned Subordinate Judge was justified in considering the further question to which of the applicants the certificate should be issued and on the unchallenged statement of the applicant No. 1 Bichitrananda Lenka that he is the eldest son of the deceased, it was directed that the certificate shall be issued in his name. The learned Subordinate Judge has amply safeguarded the interest of the other applicants by observing that they are together entitled to 4/5th share of the amounts deposited by the deceased. A succession certificate is not a final adjudication of the question as to who is the next heir and as such entitled to the estate of the deceased. The grant of succession certificate merely clothes the holder of the succession with an authority to realise the debts of the deceased and to give valid discharge. He has, however, to dispose of the amount so realised in accordance with the rights of the persons who are entitled to it. See AIR 1968 Punj and Har 292 : First National Bank Ltd. v. Shri Devi Dayal.
4. The point that remains to be considered is whether the application filed by the revision petitioners is maintainable under Section 383 of the Act. It is provided in the said section that a certificate granted may be revoked for any of the causes enumerated therein. Clause (b) on which reliance was placed by the learned counsel for the petitioners provides when the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case. On a bare reading of the application filed by the petitioners it is clear that the allegations therein do not make out a case under this clause. From the averments in the application, it appears that after the certificate was granted to Bichitrananda Lenka, dissension has arisen between the parties and the revision petitioners apprehended that they may not get their due share in the amounts deposited by the deceased from the holder of the certificate. Such a dispute is not covered under clause (b) of Section 383 of the Act which empowers the Court to revoke the certificate on the ground that the certificate had been obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case. No such allegation has been made in the application. The learned Subordinate Judge was therefore right in holding that the application filed under Section 383 of the Act is not maintainable.
5. From the foregoing analysis and discussions, it is manifest that interference with the order in exercise of inherent power under Section 151, C.P.C. was not at all called for. It I is open to the revision petitioners to realise the share due to them in the properties of the deceased from the opp. party No. 1 in accordance with law.
6. The net result is that the impugned order is unassailable. The revision petition is accordingly dismissed, but in the circumstances of the case, without any order for costs.
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