The burden of proof to establish ownership of properties for a succession certificate lies with the applicant, and without sufficient evidence, the application may be rejected.

JUDGMENT :

NIKHIL S. KARIEL, J.

1. None appears on behalf of the appellant. None appears on behalf of defendant No. 1. Learned Advocate Mr. Vishrut Jani appears on behalf of defendant No. 2.

2. By way of the present First Appeal, the appellant seeks to challenge judgment and order passed by the learned 3rd Joint Civil Judge (SD), Surendranagar dated 21.07.2001 in Civil Misc. Application No. 12 of 1997.

3. On account of absence of learned Advocate for the appellant, this Court has perused the First Appeal, the impugned judgment and order as well as Records and Proceedings placed before this Court through paper-book.

4. The learned trial Court had framed 5 issues which are enumerated herein-below and whereas answers are also enumerated herein-below:

“1. Whether the applicant proves that she is only surviving legal heir of late Motibhai Khetabhai?

2. Whether the applicant proves that the properties shown in the application were property of late Motibhai?

3. Whether the opponent proves that late Motibhai was not the owner of the disputed property? If yes, whether he proves that he has purchased the same from Jivuben Mansangbhai?

4. Whether the applicant is entitled to the succession certificate in respect of the disputed property?

5. What order?

Answers

1. Affirmative.

2. Negative.

3. Affirmative.

4. As per final order.”

5. Upon perusal of the record as well as the impugned judgment, it appears that by way of filing Civil Misc. Application, the original applicant had requested for grant of succession certificate under the Indian Succession Act with regard to two immovable properties of one Motibhai Khetabhai, deceased. It was the contention on part of the applicant that Motibhai Khetabhai was her father, who died before 80 years at village Adalsar and whereas it appears that legal heirs of the said person had been mentioned at Para No. 2 of the application and whereas it was also averred that all other legal heirs had expired and the applicant was the only surviving legal heir of deceased Motibhai Khetabhai. The succession certificate was sought for two properties, i.e. a residential house situated at village Adalsar, Tal. Lakhtar and land bearing survey No. 265, admeasuring 7.10 acres and land bearing survey No. 275, admeasuring 4.20 acres at village Adalsar. It appears that notice of the application was published in local newspapers and whereas two persons, viz. one Laljibhai Ranchhodbhai Lakum and Narsingbhai Jagmalbhai had appeared before the learned trial Court and had opposed the application preferred by the original applicant. It appears that after considering the objections by the two objectors named hereinabove, learned Civil Court had rejected the application preferred by the applicant for grant of succession certificate and whereas being aggrieved by the same, the applicant has preferred the present First Appeal challenging the impugned decision.

6. Having perused the objections submitted by the objectors and also having perused the impugned decision, it appears that the properties for which succession certificate had been sought for by the applicant, neither stood in the name of the father of the applicant nor does it appear that the properties ever belonged to the father of the applicant. It appears that as far as the properties being land bearing survey Nos.265 and 275 as well as residential house, all three of them were owned by one Mansangbhai and whereas upon his demise, his widow Jivuben Mansangbhai, who was the sole legal heir of Mansangbhai, had inherited all the properties of her husband and whereas it would appear that Motibhai Khetabhai was not at all concerned with the said properties. Furthermore, it appears that survey No. 265 had been purchased by objector No. 1 Laljibhai Ranchhodbhai Lakum vide registered sale deed dated 16.09.1994 from Jivuben. The above facts being evident from the objections by objector No. 1.

7. On the other hand, insofar as objector No. 2 is concerned, he had mentioned in detail that the residential