I hold that he can as well be impleaded as a party, having recourse to the provisions of Or. 1, Rule 10, C.P.C. since it is held that the provisions of Or. 1, Rule 10, C.P.C. are applicable under the Succession Act in the light of Sec. 141, C.P.C. no difficulty would arise even in transposing the revision petitioner in C.R.P. No. 4676/78 as a respondent.
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
CRP Nos. 4552 & 4676/1978
Decided On: 28.02.1979
Vishnu Kumar Vs. Bhavari Bai and others
Hon'ble Judges/Coram:
Mr. T. Narsinga Rao, J.
1. These two revision petitions give rise to a common question of law as to the applicability of the provisions of the Civil Procedure Code with regard to the grant of a succession certificate. The revisions arise in the following circumstances.
One Motilal Jhawar died leaving certain securities. His four daughters, namely, Kamala bai, Bhavari Bai, Krishna Bai and Karuna Bai filed O. P. No. 496/1977 on the file of the Addl. Chief judge, City Civil Court, Hyderabad, for the grant of succession certificate with regard to the securities lying to the credit of the deceased in the Central Bank of India and the Central Bank of India Staff Credit Cooperative Society Ltd. The revision petitioner in C. R. P. No. 4582/1978, who is the son of Kamala Bai, claiming to be the adopted son of Motilal Jhawar, filed a petition under Or. 1, Rule 10, C. P. C. for being impleaded as a party to the said proceeding, claiming himself to be entitled to the securities standing in the name of the deceased. That petition was opposed by the original petitioners inter alia on the ground that the provisions of Code of Civil Procedure are not applicable to succession proceedings and therefore he cannot be impleaded. The learned Addl. Judge following a ruling of this Court reported in K. V. R. Narasimha Rao vs. K. Vimalavati 1967 (2) An. W.R. 199 held that the provisions of Civil Procedure Code do not apply to succession proceedings and therefore dismissed the petition on the ground that it is not maintainable. Hence C. R. P. No. 4582/1978. While so, his mother Kamala Bai, one of the original petitioners sought to be transposed as a respondent to contest the petition on the ground that there are certain misunderstandings and that she was wrongly impleaded along with the petitioners seeking the grant of a succession certificate. That petition was also opposed by the other daughters of Motilal Jhawar, seeking the succession certificate on the ground that she cannot be transposed and permitted to be arrayed as a respondent to contest the grant of succession certificate, as the provisions of Or. 1, Rule 10, C. P. C, are not at all applicable to these proceedings. This contention found favour with the learned Addl. Chief Judge and on that ground atone he dismissed the petition for transposition. Hence C. R. P. No. 4676/1978.
2. The short point for consideration whether the provisions of Or. 1, Rule 10, C. P. C. are applicable to proceeding under the Indian Succession Act, (hereinafter referred to as 'the Act"). The contention of the learned counsel for the revision petitioners is that though the proceedings with regard to the grant of succession certificate are summary in nature, no procedure is prescribed under the Act with regard to the grant of succession certificate and therefore, the provisions of Civil Procedure Code as far as possible should be made applicable and the provisions of Or. 1, Rule 10, C. P. C. can be made applicable, la order to appreciate the contentions, it is necessary to read certain provisions of the Succession Act. The relevant provisions are Sections 372, 383, 387 and 388 of the Act which read as follows:-
'372. Application for certificate:-(1) Application for such a certificate shall be made to the District Judge by a petition signed and certified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 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 the which 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.(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.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 serviced 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 Courthouse and public shed 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 a 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 then 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.383. Revocation of certificate:-A certificate granted under this Part may be revoked for any of the following causes, namely:(a) that the proceedings to obtain the certificate were defective in substance:(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of some thing material to the case:(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently:(d) that the certificate has become useless and inoperative through circumstances;(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 war 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 personal lawfully entitled thereto.388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act:- (1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.(2) Any inferior Court so invested shall within the local limits of its jurisdiction have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as it were a District Judge:Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.(3) An order of a District Judge on an appeal from an order of an inferior court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, be final.(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.(5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area,(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge, shall, for the purposes of this section, be deemed to be a court inferior in grade to a District Judge."
3. It can thus be seen that an application for the grant of a succession certificate is to be made under Section 372 of the Act. The procedure for making the application is laid down under Section 373 of the Act. The contention of the learned counsel for the respondents is that a procedure has been prescribed under Sec. 373 of the Act and thus with regard to procedure, the Act is a self-contained one. Sec. 373 (b) of the Act lays down that the District Judge to when an application is made shall proceed to decide in a summary manner the right to a certificate after serving a special notice of the application is given and such a notice shall be pasted on some conspicuous part of the Court house and published in such other manner, subject to the rules made by the High Court in that regard and fix a day to decide the right to the succession certificate in a summary manner. This provision explicitly lays down that the proceedings are summary in nature. It is common ground that the rules framed by the High Court do not prescribe any particular procedure as to how the petitions are to be heard. The contention of Mr. Sarathy, the learned counsel for the respondents, was that Sec. 373 of the Act by itself is and exhaustive one with regard to procedure. It is difficult to accept this contention. The said section has been extracted above. It does not lay down any procedure for hearing the parties, even where certain objections are filed by any person opposing the grant of succession certificate. The short point for consideration is, whether the provisions of the Code of Civil Procedure with regard to addition of parties can be made applicable before the District Judge summarily decides upon the right of a petitioner to the grant of a succession certificate. It is however, relevant to note that the Court below, as well as Mr. Sarathy, the learned counsel for the respondents, conceded that even a third-party can put in an objection and in that manner, his objections can be heard. If an object can intermeddle in proceedings by filing an objection, I fail to see the difficulty in impleading him as a party to the proceedings. It is, however, contended for the respondents that under S. 382 of the Act, the certificate granted in the absence of an objector can be revoked. It can be noted that such revocation of a certificate would arise only after the grant of a succession certificate. But that does not answer the present question whether the objector can be impleaded under Or. 1. Rule 10 C.P.C, before the grant of the certificate. The strenuous contention of Mr. Sarathy was that even the lower court permitted the revision petitioner to raise an objection and in view of that allowance made by the lower Court, it is not necessary for the petitioner to be brought on record as a party-respondent under Or. 1, Rule 10, C. P. C. Mr. Satyanarayana, the learned counsel for the revision-petitioner in C.R.P. No. 4582/7S had, however, invited a decision as to the applicability of Or. 1, Rule 10, C.P.C, to a proceeding like this, for reasons best known to him, though the lower Court conceded that he can file his objections. In view of this submission, it has become necessary to deal with the question at length.
4. It is true that a proceeding under this Act for the grant of a succession certificate is not one in the nature of a suit. The order of the Addl. Chief Judge with regard to the grant of a succession certificate is equally made final subject to certain limitations. It is useful to read the provisions of section 384(3) of the Act at this stage, which lays down as follows :-
"Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgement of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, an order of a District judge under this Part shall be final'.
The contention on behalf of the respondents was that Sec. 141, CPC is made applicable only to the extent of reference, revision and review of the judgement and not in other respects. Section 141, C. P. C. lays down that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. It cannot be disputed that the District judge deciding a proceeding with regard to the grant of a succession certificate is a Court of civil jurisdiction. There is thus no difficulty in applying Section 141 C.P.C, to the proceedings under Part X of the Succession Act. In other words, section 387 explicitly lays down that the decision of a District judge on any question between the parties with regard to the rights for the grant of a succession certificate does not bar or has not the effect of res judicata. In other words, the party aggrieved by any decision in a succession proceeding has always the right to agitate the question by way of a civil suit. That provision is also not of much help to show whether a party can be impleaded or not. Mr. Sarathi, the learned counsel for the respondents contended that Section 141, C.P.C, does not apply to Succession Certificate Act, except so far as it makes applicable in relation to reference, revision and review of the judgement. In this connection, he places reliance upon a ruling of the Allahabad High Court reported in Kanyaiya vs. Kanyaiya Lal MANU/UP/0282/1924 : AIR 1924 All 376 therein it is laid down:-
"Civil Procedure Code does not apply to proceedings under Succession Certificate Act which is nor analogous to Guardians and Wards Act or Bengal Tenancy Act to which the Civil Procedure Code has been held to apply. Therefore S. 141 does not apply except in so far as it is expressly introduced by S. 19 (3) and as a corollary by S. 26(3) of the Succession Certificate Act. A Succession Certificate Court has no jurisdiction to appoint a Receiver. If the lower court has appointed a receiver, the High Court can interfere in revision".
It can be seen that in that case, the Succession Certificate Court has appointed a Receiver invoking the provisions of Or. 40, Rule 1 C.P.C. It was also contended in that case that if the provisions of C. P. C. are not made applicable, even a revision under S. 115. C.P.C, does not lie. But that contention was repelled on the ground that the provisions relating to revision can be exercised by the High Court where the lower Court has awed without jurisdiction. What is presently contended for the revision petitioners is that when the High Court can call for the record and rectify any error of the lower Court, in the instant case, when the third party is permitted to raise objections, such a party can also be ordered to be impleaded. My attention has been drawn to the ruling of a single judge of the Patna High Court reported in Ramji Rao vs. Jageswari MANU/BH/0075/1964 : AIR 1964 Pat 272 where the question of impleading a party under Or. 1, Rule 10 C.P.C, is considered. It is laid down therein:
"Section 384 (3) of the Act appears to show that the provisions relating to reference to and revision by the High Court as well as to review of judgement as given in the code of Civil Procedure would apply to a proceeding for grant of a succession certificate before the District Judge, and that they would apply because of the provisions of Section 141 of the Civil Procedure Code. The inference, therefore is clear that other provisions of the Code of Civil Procedure relating to the procedure in suits will apply to a proceeding for grant of succession certificate under the Act because it is a proceeding in a Court of Civil Jurisdiction".
In the light of this rule with which reasoning I am in agreement, I do not find any impediment in impleading an objector as a party to the proceeding. It is, however, strenuously contended by the learned counsel for the respondent that a contrary view has been taken by this High Court in a ruling reported in K.V.R. Narasimha Rao vs. K. Vimalavati 1967 (2) An, WR 199 The question that arose therein was whether permission of the Court was necessary under Or. 23, Rule 1 of the Code of Civil Procedure for withdrawing an Original Petition filed under the Indian Succession Act. It was held therein:
"Succession proceedings are summary proceedings and any decision therein in respect of the rights do not preclude the parties to litigate in regular suit. A succession certificate granted under the Indian Succession Act gives a valid quittance to the debtor, who thereafter is not interested as to who is the rightful owner to claim the debt. If a wrongful owner obtains a succession certificate and claims the debt and is paid, the only remedy for the rightful owner is to file a suit against the wrongful owner obtaining payment and litigate.The language of section 387 of the Indian Succession Act also makes it clear that the proceedings had not been considered to be a suit, nor are they treated as a suit, so that Order 23, rule 1, Civil Procedure Code, which is applicable to suits, is not applicable to these proceedings. Therefore, no permission of the Court is necessary under Or 23, rule 1, Civil Procedure Code, for withdrawing an O. P., under the Indian Succession Act."
5. It can thus be seen whether, in the light of Section 141 of the Code of Civil Procedure, the procedure laid down with regard to suits is equally applicable. Proceedings in Civil Court as per S. 141 C. P: C, was not at all considered. Therefore, that ruling is of no avail to show that the provisions of the Civil Procedure Code and in particular the provisions of Or. 1, Rule 10 C. P. C, are not applicable to succession proceedings.
6. It was further contended by the petitioners that even with regard to summary proceedings, the provisions of Civil Procedure Code would apply. While so, on the other hand, it is contended that if the provisions of Civil Procedure Code are made applicable to summary proceedings, the very character of summary proceedings will be destroyed and such a view would militate against the express language of S. 373 (b) of the Act which lays down that the District judge shall proceed to decide in a summary manner the right to the certificate. In Gampa Agaioh vs. Gouri Shankar 1970 (1) APLJ (Short Notes) 46 under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act 1960, the impleading of a third party was ordered. In a similar case, in G. Satyanarayana vs. S. Satyanarayana Murty 1967 II An. W:R, 476 under the Andhra Pradesh Rent Control Act, it was held that where there is no conflict between the Rent Control Act and the Rules made thereunder and the Civil Procedure Code or wherever the Act or the Rules made thereunder are silent on matters relating to procedure, the relevant provisions of the Civil Procedure Code, can certainly be relied upon. It was, however where the Rent Control Act was silent as to procedure to be followed in amending the petitions, that the Code of Civil Procedure is applicable with regard to amendment of pleadings Placing reliance upon this ruling, it was contended that S. 373 of the Act or the rules made by the High Court thereunder do not make any provision with regard to the addition of parties & in fact, they are silent as to the procedure to be followed and therefore, the provisions of Or. 1, Rule 10, C P. C, can be invoked and made applicable. In the same strain, it was contended for the revision petitioners that where a forum is created but no procedure is prescribed the provisions of the relevant Code of Civil procedure are applicable. Reliance was sought to be placed upon a ruling of this Court reported in Public Prosecutor V. L. Ramayya 1974 (2) APLJ 305 That was a case where under Section 6-C of the Essential Commodities Act, the District and Sessions Judge is constituted as the Appellate Authority against the orders of the Collector in relation to confiscation of properties. The question that arose was whether a revision lies against the order of the District and Sessions Judge to High Court under S. 439, Cr. P.C. A Full Bench of this Court held that since the District and Sessions Judge was so created as an Appellate Authority, a revision against his order lies to the High Court under S. 439, Cr. P. C, even though there is no express provision under the Essential Commodities Act to that effect. As noted above, Section 373 of the Act and the rules made by the High Court under Part X of the Indian Succession Act are silent as to the mode of procedure. It is only reasonable to apply the provisions of Civil Procedure Code as far as they are applicable. That apart, when the trial Court itself permitted the third party to intervene as an objector, I fail to see the logic behind as to why he cannot be impleaded even where he raises an objection to the grant of succession certificate.
7. It was however, the strenuous contention of Mr. Sarathy, the learned counsel for the respondents, that nice questions of adoption should not be gone into in a summary proceeding like this and that the proper remedy for an aggrieved party is to agitate the same by way of a civil suit. He places reliance upon a decision in In re. Rajambal Bai, Petitioner;
"The purpose of the grant of succession certificate is not to give the litigant parties an opportunity of litigating contested questions of title to property. The object of the Act (Pan X) is to obtain the appointment of some person to give a legal discharge to debtors to the estate for the debts due. It was not intended that nice questions of law as to the rights of the parties to the estate of the deceased should be decided on an application under it.Consequently, the practice is to issue a certificate to the person who has prima facie the clearest title to the succession such as the natural heir, and to leave a person, whose claim to a superior title is on reasonable grounds disputed, to establish that title by regular suit".
That contingency of directing the adopted son to seek redress in a Civil Court or where nice questions of adoption could not be gone into would arise only after hearing the third-party-revision petitioner herein. It is always open to the Succession Court to direct the party setting up superior title on such nice and complicated questions to have his rights decided in a Civil Court. But that is far from saying that he cannot be impleaded as a party or that he should not be heard at this stage. If the third-party seeks to agitate questions beyond the compass of the original petition, it would be reasonable for the Succession Court so direct him to approach a Civil Court for vindication of his rights. But that is no ground for saying that he cannot be impleaded as a party. At any rate, when he can be permitted to intervene as an objector, he can as well be impleaded as a party. Thus, in the very view of the matter taken by the lower Court, allowing the revision petitioner in C.R.P. 4582/1978 to file his objection, I hold that he can as well be impleaded as a party, having recourse to the provisions of Or. 1, Rule 10, C.P.C. since it is held that the provisions of Or. 1, Rule 10, C.P.C. are applicable under the Succession Act in the light of Sec. 141, C.P.C. no difficulty would arise even in transposing the revision petitioner in C.R.P. No. 4676/78 as a respondent.
8. In the above view of the matter, both the revision petitions are allowed and the revision petitioner in C.R.P. 4582 of 1978 is ordered to be impleaded as a party respondent and the case of the revision petitioner in C.R.P. 4676/78 is ordered to be considered on merits. The revision petitions are accordingly allowed. There would, however, be no order as to costs in both the petitions.
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