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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Monika Yadav – Appellant
Versus
Aakash Singh and Others – Respondents
First Appeal Defective No. 366 of 2023
Decided On : 29-11-2023
Succession Act - Appeal - Section 384(1) - Sections 371, 372, 384, 388 - The judgment discusses the provisions of the Succession Act, particularly Sections 371, 372, 384, and 388, and their interpretation in the context of an appeal against an order refusing a Succession Certificate. The court emphasizes the investiture of inferior courts with the jurisdiction of a District Court and the implications of the deeming clause under Section 388(2) on the appeal forum.
Fact of the Case:
The appeal is filed against the rejection of an application for a Succession Certificate. The appellant argues that the appeal should lie before the High Court based on the provisions of Section 384(1) of the Succession Act.
Finding of the Court:
The court analyzes the provisions of Sections 371, 372, 384, and 388 of the Succession Act and concludes that the appeal does not lie before the High Court but before the District Judge, as per the deeming clause under Section 388(2). The appellant is permitted to withdraw the appeal with liberty to approach the District Judge.
Issues: The main issue is the forum for the appeal against an order refusing a Succession Certificate, based on the interpretation of Sections 384 and 388 of the Succession Act.
Ratio Decidendi: The court's decision is based on the interpretation of the deeming clause under Section 388(2) and its implications on the appeal forum, emphasizing that the appeal lies before the District Judge and not the High Court.
Final Decision: The appeal is permitted to be withdrawn with the liberty to approach the District Judge concerned.
JUDGMENT :
YOGENDRA KUMAR SRIVASTAVA, J.
1. Heard Sri Rajesh Yadav, learned counsel for the appellant.
2. The present first appeal filed under Section 384(1) of the Succession Act, 1925, is directed against the judgment and order dated 05.01.2023 passed by the Civil Judge (Senior Division), Bhadohi Gyanpur in Succession Case No. 81 of 2020 (Monika Yadav vs. Akash and Others), whereby the Application (Paper 4Ga) preferred under Section 372 for obtaining the Succession Certificate, has been rejected.
3. A question has arisen with regard to the maintainability of the appeal in view of the provisions contained in Section 388(2) of the Succession Act, 1925 [the Act].
4. Counsel for the appellant has drawn the attention of the Court to Section 384(1) of the Act to contend that an order passed by the District Judge granting, refusing or revoking the certificate under Part X, which relates to Succession Certificate, would be amenable to an appeal before the High Court. It is contended that the Civil Judge (Senior Division) while passing the order on the application seeking Succession Certificate, was acting as a District Judge and accordingly the appeal would lie before the High Court.
5. In order to appreciate the controversy at hand, the provisions relating to grant of Succession Certificates under Part X of the Succession Act, would be required to be adverted.
6. The jurisdiction to grant a Succession Certificate and the manner of making an application for the purpose, are provided under Sections 371 and 372 of the Act, respectively, which are as follows:
372. Application for certificate:
(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:
(a) the time of the death of the deceased.
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits.
(c) the family or other near relatives of the deceased and their respective residences.
(d) the right in which the petitioner claims.
(e) the absence of any impediment under Section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted.
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under Section 198 of the Indian Penal Code.
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.”
7. The provision relating to an appeal against an order granting, refusing or revoking a certificate under Part X, is provided under Section 384, which is being reproduced below:
(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District judge, on application being made therefor, to grant it accordingly, in super-session of the certificate,
The main legal point established in the judgment is the interpretation of the deeming clause under Section 388(2) of the Succession Act, which determines the forum for the appeal against an order ref....
Point of law: A conjoint reading of Sections 371, 372 and 384 of the Act would show that the original jurisdiction to entertain and decide a petition for the grant of a succession certificate has bee....
The jurisdiction to grant probate in contentious matters lies solely with the District Judge, and cannot be exercised by a subordinate delegate court.
Return of plaint –Adjudication of petition, which is likely to affect trial of suit or to take away jurisdiction of Court to try suit, cannot be entertained when further proceeding of suit is stayed.
The main legal point established in the judgment is that the District Court has jurisdiction to grant and revoke probate and letters of administration in cases specifically covered under Section 57(c....
No petition for probate filed under Section 276 of the Act. In the absence of any such petition, the court below cannot invoke the provisions under Section 295 of the Act.
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