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2000(3) Supreme 666
SUPREME COURT OF INDIA
(From Kerala High Court)
A.P. Misra & M.B. Shah, JJ.
Madhvi Amma Bhawani Amma & Ors. -Appellants
versus
Kunjikutty Pillai Meenakshi Pillai & Ors. -Respondents
Civil Appeal No. 1544 of 1990
Decided on 27-4-2000
Counsel for the Parties :
For the Appearing Parties : P.S. Poti, T.L.V. Iyer, Sr. Advocates, Ms. Malini Poduval, Manu Krishnan, Ms. Lansinglu Rongmei, Ramesh Babu M.R., N. Sudhakaran, Advocates.
Sub-section (3) to Section 373 reveals two things, first adjudication is in a summarily proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceeding would constitute to be a decision on an issue finally decided between the parties. If that be so how could principle of res judicata be made applicable to a case in a subsequent suit. The effect of such certificate is also laid down in Section 381. This certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such certificate. Thus when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certificate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subsequently inter se between the claimants. The use of words "good faith" in Section 381 reinforces that decision in these proceedings are not final. When statute recognises such payment to be in good faith gives clear under current message that there may be in future better claimant but that would not effect the indemnification of the debtor. Thus we find accumulatively because of the grant of Succession Certificate being for a limited purpose, limited in its sphere, the declaration of title being prima facie, payment tendered is declared to have been made in good faith, leads to only one conclusion that any decision made therein cannot be treated to be final adjudication of the rights of the parties, except such declaration being final for the purpose of these proceedings. If that be so, the amount received by the holder of such certificate can yet be questioned, and in subsequent proceeding it may hold it to belong to other claimant, including the contesting party. (Paras 13 & 14)
This can be examined from another angle. The grant of Succession Certificate falls under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceeding. This provision takes the decisions under Part X of the Act outside the purview of Explanation VIII to Section 11. This gives protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceedings. No doubt Explanation VIII to Section 11 enlarges the field of res judicata, by including in its field the decisions on the same issue, between the same parties even by a court of limited jurisdiction even though such court may not have the competence of deciding such an issue in a suit. But as we have held above this grant of certificate would not fall within the field of Explanation VIII to Section 11. Therefore, any decision made in proceeding under Section 372, for the grant of Succession Certificate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. (Paras 15, 16, 17 & 19)
(ii) Indian Succession Act, 1925-Section 373-Code of Civil Procedure, 1908-Section 11-Succession Certificate-Nature of adjudication proceedings-Grant of Succession Certificate would not constitute to be decision on an issue finally decided between parties-Certificate merely affords full indemnity to debtor for payment he makes to person holding such certificate-Amount received by holder of such certificate can yet be questioned in subsequent proceedings-Granting of Succession Certificate would not operate as res judicata to a suit for partition filed in a Civil Court between same parties. (Paras 13, 14, 15, 16 and 19)
JUDGMENT
Misra, J.-This appeal is directed against the High Court order dated 26th September, 1989 in second appeal. The short question raised in this appeal is, whether an order granting Succession Certificate under Section 373 of the Indian Succession Act 1925 would operate as res judicata to the suit for partition filed in a civil court between the same parties.
2. The short facts are the appellants are the defendants in suit No. 20 of 1974 which is filed by respondent No. 1 Velu Pillai since deceased claiming to be the only legal heir as brother to the estates of one Kizhangumvilayil died intestate. The suit was for declaration, partition and recovery of possession of the plaint schedule properties. The said respondent also filed O.P. No. 33 of 1974 in the same court for obtaining Succession Certificate for receiving money from Life Insurance Corporation. The plaintiff case in the suit is that he along with Ramakrishna Pillai and the said deceased Thankappan Pillai were the children of one Parameshwaran Pillai and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other legal heir to succeed his estates, he is entitled to be declared as a legal heir to the estates of the said deceased.
3. Defendants-appellants contested the said case. They pleaded that plaintiff was only their uterine brother and thus was not entitled to succeed as legal heir. In fact, they are in possession of the suit property which could not be disturbed except by any legal heir. Both, the suits and the said proceeding under the Indian Succession Act were tried together and decided by a common judgment by the trial Court. The trial Court held, there was no evidence to show that the marriage between Karthiyayani Amma and Parameswaran Pillai had been dissolved. The presumption is that Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai. The plaintiff being the real brother of the deceased Thankappan Pillai is entitled to inherit his property. Thus the trial Court decreed the suit declaring the plaintiff as a sole heir and also allowed the said application O.P. No. 33 of 74 by granting the Succession Certificate to the plaintiff. The appellate court set aside both the judgment of the trial court in suit and grant of the Succession Certificate, holding that there was no valid marriage between Karthiyayani Amma and Parameswaran Pillai. The High Court in second appeal set aside this appellate court judgment as findings were not supported by pleadings in the case hence remanded the case back for reconsideration. After remand, the appellate court dismissed the appeal of the appellant by confirming the trial court judgment. Thereafter the appellant filed the second appeal.
4. Submission for the respondent-plaintiff before the High Court was that since appeal was not preferred against the order of the appellate court arising out of the proceeding for the grant of the Succession Certificate, it became final, thus it operates as res judicata. The High Court by its impugned order, upheld this contention. Thus High Court dismissed the second appeal on this limited ground which is impugned before us.
5. The learned counsel for the appellants submits that proceeding for the grant of Succession Certificate is a summary proceeding and the same can not operate as res judicata to a proceedings in a regular suit filed in the civil court even if, it is between the same parties or issues are the same. The grant of Succession Certificate under Section 373 has only the effect that it is conclusive as against the person owing such debts or liability on such securities (as in the present case LIC) and it affords full indemnity to such debtor against all such future claimant, when it tenders the amount to such person holding Succession Certificate. The submission is, this is merely a summary proceeding in which adjudication is made prima facie as to whom such payment is to be tendered by such debtor. In other words leaves the battle if any inter se betw
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