ORDER

1. The petitioners have filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated 6.5.2023 passed by the Civil Judge, Class – I, Senior Division, Ratlam, whereby the prayer of the petitioners for rejection of WS as well as counter claim filed under Order VI rule 8 of the Code of Civil Procedure, 1908 has been rejected.

2. The facts of the case reveal that petitioners have filed a succession case under Section 372 of the Indian Succession Act claiming succession of the amount lying in the State Bank of India, Bank of India and Bank of Baroda. The description of the accounts are given in paragraphs – 5, 6, 7 & 8 of the application. The petitioners are seeking succession on the basis of a will dated 5.2.2022. According to them, there are other legal heirs / representatives.

3. In the said application, Girdharilal, Smt. Jashoda and Smt. Nirmala filed an application under Order I rule 10 of the CPC for impleadment, which came to be allowed and they have been impleaded as defendants. After their impleadment, they filed reply as well counter claim claiming succession certificate. They are also challenging that will in favour of the petitioners is forged. The petitioners / plaintiffs filed an application under Order VII rule 11(d) of the CPC stating that succession proceedings are not like a regular civil suit, therefore, their counter claim is not liable to be entertained and the same be rejected. Defendants No.6 to 8 filed a reply and vide order dated 6.5.2023, the Court below has rejected the prayer made by the plaintiff. Hence, the present petition is before this Court.

4. Learned counsel for the petitioners submits that counter claim can be filed under VIII rule 6 of the CPC only in a suit and not in a succession proceedings, therefore, the Court below has committed illegality by entertaining the counter claim submitted by the respondents under section 372 of the Indian Succession Act.

5. Section 372 of the Indian Succession Act is reproduced below :--

“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 (5 of 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; and

(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, 1860 (45 of 1860).

(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.” [Emphasis Supplied]

6. The aforesaid provision of law makes it clear that an application for issuance of succession 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 signing and verification of a plaint by or on behalf of plaintiff.

7. The respondents / defendants, who are also claiming succession on account of death of Laxmi