1. Appeal against the revocation of a Succession Certificate granted under Section 372 of the Indian Succession Act, 1925, concerning the eligibility of a non-lineal descendant. (Para 3 , 4 , 5 , 6 )
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2019 Supreme(SC) 348
SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, VINEET SARAN, JJ.
Joseph Easwaran Wapshare and Others – Appellants
Versus
Shirley Katheleen Wheeler – Respondent
Civil Appeal No. 2284 of 2019, Special Leave Petition (C) No. 22394 of 2016
Decided On : 26-02-2019
Important Points
IMPORTANT POINTS
A succession certificate issued u/s 372 can be revoked only on the satisfaction of conditions in section 383.
An outsider cannot claim succession in property of an intestate owner.
A succession certificate issued u/s 372 can be revoked only on the satisfaction of conditions in section 383.
An outsider cannot claim succession in property of an intestate owner.
Subject
Succession Law - Revocation of Succession Certificate
Act Referred
Headnote
Indian Succession Act, 1925 – Section 372 and 383 – Succession certificate granted u/s 372 can be revoked only on grounds stated in section 383 – Instantly respondent not satisfying any of these grounds – Held, trial court rightly rejected the application – Secondly, respondent claiming a share in property of Edward Wapshar only describing her as daughter of Beatrice Wapshare Not mentioning name of Edward Wapshar as her father – Appellant rightly stating that respondent is an outsider having nothing to with properties of Edward Wapshar. (Para 9, 10)
Indian Succession Act, 1925 – Section 33 – Property of an intestate would devolve to his widow and lineal descendants – Not to any outsider. (Para 10)
Facts of the case:
The appellant No. 1 is the son of one Gorden Wapshare. Gorden Wapshare had a brother called Edward Wapshare, who married one Beatrice but there was no issues therefrom. He also had two sisters, one of whom Miss Dorthy Wapshare died unmarried, and the other Miss Violet Wapshare, who was married and has a daughter called Ellen Mary Jackson. Gorden Wapshare was himself married and had two sons-one of whom is the appellant No. 1, and the other son called Robert Babu Wapshare, who is dead. The respondent Ms. Shirley Katheleen Wheeler is said to be the daughter of Beatrice, the wife of Edward Wapshare.
Gorden Wapshare died on 18.01.1991. As a result, a petition was preferred under Section 372 of the Indian Succession Act, 1925 which was allowed and Succession Certificate dated 16.03.2005 granted to the appellant. The respondent applied to revoke the Succession Certificate so granted. The appellant, in his counter affidavit clearly stated that the respondent was an outsider to the Wapshare family as she was the daughter of Beatrice but born to a second husband and not Edward Wapshare, who was the brother of Gorden Wapshare.
An application for probate of the will of Gorden Wapshare was moved by Beatrice in 1993,. Beatrice died on 29.01.1999. The probate application was dismissed for non-prosecution.
The Sub-Court, Nilgiris, held that the respondent, not being the daughter of Edward Wapshare, was an outsider who could not, therefore, maintain the application for revocation. The Sub-Court also decided that, in any case, since the previous proceeding had abated, the matter is res-judicata between the parties.
The High Court set aside the order of sub court and remanded the matter to it to decide the matter afresh after hearing the parties.
Finding of the Court:
Respondent has no claim in property of Edward Wapshare.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether a person who is not a lineal descendant of the deceased can maintain an application for revocation of a Succession Certificate under Section 383. (Para 5 , 8 )
3. The respondent failed to establish lineal descent from the deceased and the application for revocation did not satisfy any grounds specified under Section 383 of the Act. (Para 9 , 10 )
4. A Succession Certificate can only be revoked on grounds specified under Section 383, and intestate property devolves only upon the widow and lineal descendants under Section 33(a). (Para 9 , 10 )
5. Appeal allowed; High Court judgment set aside and Sub-Court order restoring the Succession Certificate reinstated. (Para 11 , 12 )
6. Under what circumstances can a Succession Certificate be revoked under the Indian Succession Act?
A certificate may be revoked under Section 383 if the proceedings were defective in substance, obtained fraudulently or via untrue allegations, became useless and inoperative, or if a competent court's decree renders revocation proper. (Para 9 )
7. Who is entitled to inherit the property of a person who dies intestate under Section 33(a) of the Indian Succession Act?
If the deceased leaves lineal descendants, one-third of the property belongs to the widow and the remaining two-thirds go to the lineal descendants according to the rules of the Act. (Para 9 , 10 )
8. How is lineal consanguinity defined under the Indian Succession Act?
Lineal consanguinity exists between two persons where one is descended in a direct line from the other, such as in the direct ascending line (father, grandfather) or direct descending line (son, grandson). (Para 9 )
JUDGMENT :
ROHINTON FALI NARIMAN, J.
1. Nobody appears for the respondent, even though service is complete.
2. Leave granted.
3. The present appeal arises out of a proceeding to revoke a Succession Certificate that was granted in favour of the appellant on 16.03.2005.
4. The appellant No. 1 is the son of one Gorden Wapshare. Gorden Wapshare had a brother called Edward Wapshare, who married one Beatrice. Apparently, this marriage was fruitless as there was no issues therefrom. He also had two sisters, one of whom Miss Dorthy Wapshare was unmarried, who is since dead; and the other Miss Violet Wapshare, who was married and has a daughter called Ellen Mary Jackson. Gorden Wapshare was himself married and had two sons-one of whom is the appellant No. 1, and the other son called Robert Babu Wapshare, who is dead. The appellant No. 1, in turn, is married and has two sons. The respondent before us Ms. Shirley Katheleen Wheeler is said to be the daughter of Beatrice, who, as stated herein above, was the wife of Edward Wapshare.
5. Gorden Wapshare died on 18.01.1991. As a result, a petition was preferred under Section 372 of the Indian Succession Act, 1925 being O.P. No. 17 of 2005 before the Court of Civil Judge, Nilgiris, which petition was allowed and Succession Certificate dated 16.03.2005 granted to the appellant. The respondent, in an application filed under Section 383 of the Act dated 28.03.2005, applied to revoke the Succession Certificate so granted. In this application, a counter affidavit was filed in which it was clearly stated that the respondent was an outsider to the Wapshare family as she was the daughter of Beatrice and born to a second husband and not Edward Wapshare, who was the brother of Gorden Wapshare, as stated hereinabove.
6. An application for probate of the will of Gorden Wapshare was moved by Beatrice in 1993, being O.P. No. 55 of 1993. Beatrice died on 29.01.1999. It may be mentioned that this application was dismissed for non-prosecution. At no point of time did the respondent ever apply as legal heir of Beatrice to be substituted therein.
7. By an order dated 10.04.2006, the Sub-Court, Nilgiris, held that the respondent, not being the daughter of Edward Wapshare, was an outsider who could not, therefore, maintain the application for revocation. The Sub-Court also decided that, in any case, since the previous proceeding had abated, the matter is res-judicata between the parties. It then went on to decide:
“Since the petitioners in O.P. 17/05 are the direct heirs of then deceased G.O. Wapshare; neither Ms. Ellen Mary Jackson nor her step sister the present petitioner in this application did have any right to question the Succession Certificate obtained by the petitioners in O.P. 17/2005 dated 16.3.2005. The evidence adduced on the side of the respondents in this application clearly proves that the deceased G.O. Wapshare during his life time has legally married one Valliammal and had given birth to a male child, who had been named Easwaran. The 1st respondent in this application and who in turn given a birth nd of and 3rd respondents in this application. Since, the 1st respondent in this application being the son of G.O. Wapshare and the 2nd and 3rd respondents being the son of the 1st respondent in this application are the direct heirs of G.O. Wapshare who are alone entitled to inherit the immoveables as well as the moveables of deceased G.O. Wapshare is completely been established by the respondents in this application. In the absence of any testament left by G.O. Wapshare the property of G.O. Wapshare will naturally go to his son Joseph Easwaran Wapshare and his sons W.E. Prince Kumar and W.E. Praveen Kumar, only when the petitioner Mary Jackson able to prove that G.O. Wapshare left a will or other testament to inherit the properties left by G.D. Wapshare, claim of the petitioner in this petition will become mischievous as the petitioner in this application herself know that her step sister Ms. Ellen Mary Jackson
