Rights of parties can only be adjudicated in a properly instituted suit.

The fourth respondent in Succession O.P.No.49 of 1988 on the file of the Principal/Subordinate Judge, Madurai is the revision petitioner.

2. Succession Certificate application was filed by the first respondent herein regarding some deposits in the State Bank of Mysore, Madurai in S.B. Account No.688 which stood in the name of late Shenbagam Servai and the petitioner herein. By an Order, the Subordinate Court, found that the revision petitioner is not entitled to collect the amount she being not a legal heir of the deceased. It has further found that either or survivor account is not a gift in favour of the survivor, but only a right to collect the amount covered by the receipt. It is the case of the petitioner that the amount that is deposited in the name of the deceased and herself are her earnings and even the deceased did not have a right over the same. It is her case that the above is not a part of the estate of the deceased. The Subordinate Court rejected the objection and granted the certificate. The matter was taken in C.M.A. No.60 of 1990 before the First Additional District Judge, Madurai, who also did not think that any ground has been made out to set aside the order. The appeal was dismissed.

3. Aggrieved by the concurrent Judgment, the C.R.P. is filed.

4. I do not think the petitionerhas a right to challenge the concurrent judgment since it is only a sum- mary proceeding under the Indian Succession Act. Under Sec.373 (3) of the Indian Succession Act, the procedure before court is provided. In fact, the proceedings under the Indian Succession Act for the issuance of a Succession Certificate concerns only with the prima facie, right to collect the amount. The intricate question of title is barred from being decided in that proceeding. Sub-Secs.(3) and (4) of Sec.373 of the Indian Succession Act read thus:

“(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 grant a certificate to the applicant if he appears to be the person having ‘prima facie’ the best title thereto.

(4) When there are rnore applicants than one for a certificate and it appears to the Judge that more than one of such applicants are interested in the estate of 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.”

5. The learned counsel for the petitioner submitted that if the decision is allowed to stand, that will have an adverse effect on the rights of the petitioner and the decision will be res judicata. The learned counsel for the petitioner submitted that by going by the prolonged procedure, adopted by the lower Court minutely in deciding the case, any subsequent decision on the same question will be barred. It is here the learned counsel for the petitioner has gone wrong. In fact, the trial Court should not have gone through such a detailed procedure when the Act itself contemplates only a summary procedure and to hold a prima facie title. The intricate question of the rival claims is barred from being decided in proceeding under the Act for the issuance of Succession Certificate.

6. Under Sec.387 of the Indian Succession Act, a right of suit is also provided. The Section reads thus:

“No decision under this part upon any question of right between any parties shall be held to bar 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 person lawfully entitled thereto.”

Commenting on the same, in Sanjiva Row’s ‘Indian Succession Act’ - 6th Edition (1992), at page 917, learned Author has said thus:

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