The main legal point established in the judgment is that the decision in a proceeding for grant of succession certificate does not operate as res judicata in subsequent proceedings.

( 1 ) RULE. Rule made absolute forthwith. By consent of parties, matter is heard at the stage of admission.

( 2 ) HEARD Mrs. S. G. Chincholkar, Counsel for Petitioner, Mr. S. B. Rohile, counsel for Respondent No. 1 and Mr. M. N. Navandar, Counsel for Respondent nos. 2 and 3.

( 3 ) BY this Writ Petition under Articles 226 and 227 of the Constitution of india, petitioner/original plaintiff challenges the Order dated 20-2-2009 passed by the District Judge - 2, Nanded below Exh. 25 in Misc. Civil Appeal No. 5 of 2009 arising out of the Order dated 3-1-2009 passed below Exh. 5 in R. C. S. No. 414 of 2008 by the Civil Judge (Sr. Division), Nanded.

( 4 ) A few facts of the matter are as under : respondent No. 1 is original defendant No. 1 and respondent Nos. 2 and 3 are original defendant Nos. 3 and 4 in R. C. S. No. 414 of 2008. Petitioner filed r. C. S. No. 414 of 2008 in the Court of the Civil Judge (Sr. Division), Nanded for declaration that petitioner be declared as legally wedded wife of deceased narendranath Kashinath Khargkharate and for benefits arising out of service of deceased Narendranath. In that Suit, petitioners claim following reliefs :

" (1) A decree of declared as legally wedded wife of deceased narendranath Kashinath Khargkharate and entitled all benefits arising out of service of Narendranath ; (2) Decree of declaration that the defendant No. 1 be declared as divorced wife of deceased Narendranath Kashinath with effect from 1-7-1994. (3) A decree of perpetual injunction restraining the defendant No. 2 and 3 its/their servants, agents, any other person claiming on behalf of defendant No. 1 from releasing any amount lying with respondent Nos. 2 and 3 in the name of deceased Narendranath kashinath Khargkharate to the defendant No. 1 by any other way or other benefits arising out of it ; (4) A decree of Revocation/cancellation of Succession Certificate granted to the extent of defendant No. 1 in Misc. Civil Appeal No. 17/2007, by granting decree to that effect. "

( 5 ) IN the said Suit, petitioner preferred application below Exh. 5 on 25-8-2008 for temporary injunction restraining respondent Nos. 2 and 3 from releasing any amount in favour of respondent No. 1 arising out of services of deceased narendranath. The said application for interim relief was dismissed on 3-1-2009. The trial Court held that petitioner failed to prove that the marriage of respondent no. 1 Indumati and deceased Narendranath was dissolved. The trial Court further heid that petitioner failed to prove that she is legally wedded wife of deceased narendranath. At the time of deciding the said application below Exh. 5 dated 3-1 -2009, the trial Court considered the question of res judicata and held that in view of proceeding for succession certificate filed by petitioner, principle of res judicata is applicable in the present suit also.

( 6 ) BEING aggrieved by the said Order dated 3-1-2009 passed by trial Court below Exh. 5, petitioner preferred Misc. Civil Appeal No. 5 of 2009 in the district Court at Nanded under Order XLIII, Rule 1 (r) of Code of Civil procedure. Said Appeal was dismissed by Appellate Court holding that petitioner failed to make out prima facie case. At the time of dismissing Misc. Civil Appeal no. 5 of 2009, the Appellate Court in paragraph 20 of the Judgment held that proceeding for grant of succession certificate is summary in nature and that no rights are finally decided in the said proceeding. Therefore, principle of res judicata is not applicable. However, said issue was kept open by the Appellate court in trial.

( 7 ) IT is to be noted that petitioner also filed Misc. Civil Application No. 3 of 2001 in the Court of the Civil Judge (Sr. Division), Parbhani for Succession certificate under section 372 of the Indian Succession Act. In the said Misc. Civil Application No. 3 of 2001, Jt. Civil Judge (Sr. Division), Parbhani by its judgment and Order dated 23-3-2007 held that petitioner is not entitled for succession Certificate

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