IMPORTANT POINT
Mere availability of remedy of application (miscellaneous proceedings) under Section 372 of Indian Succession Act, does not bar jurisdiction of Civil Courts to entertain regular civil suit for declaration.

JUDGMENT

Harsh Kumar, J.—The instant appeal has been filed against judgment and decree dated 18.1.2002 passed by Additional District Judge, Kanpur Nagar in Civil Appeal No.264 of 2001 arising out of judgment and decree dated 4.9.2001 passed by Additional Civil Judge (Senior Division), Kanpur Nagar in Civil Suit No.193 of 1986.

2. The brief facts relating to the case are that Shri Ram Krishna Puri filed Civil Suit No.193 of 1986 in the Court of Civil Judge, Kanpur Nagar against Smt. Gurpyari Devi, Sri Kashi Nath Khatri and Allahabad Bank for a decree of declaration to the effect that plaintiff is entitled to the amount due under the four fixed deposit receipts each for Rs.10,000/- dated 16.1.1981 for a period of 63 months and plaintiff be awarded cost of suit against defendant-respondent nos.1 and 2, with the averments that Smt. Sahodara @ Sahodara Bibi had brought up plaintiff as his mother had died during his infancy and that she held four fixed deposit receipts each for Rs.10,000/- dated 16.1.1981 for a period of 63 months and was sole owner of the amount and had got name of defendant no.1 Gurpyari Devi added along with her in the fixed deposit receipts with the remark “Payable to the former or Survivor”; and since Smt. Sahodara died on 30.1.1985 after executing her last will dated 18.1.1983 in favour of plaintiff in respect of impugned fixed deposit receipts and defendant no.1 is disputing the rights of plaintiff, hence suit.

3. The defendant no.1 filed a written statement denying the allegations of plaint and claiming herself to be entitled to full and final payment of maturity amount under the impugned fixed deposit receipts and that the suit is barred by provisions of Section 213 of Indian Succession Act.

4. Defendant no.2 also filed separate written statement denying the allegations of plaint.

5. On parties pleadings the trial court framed as many as six issues viz.,

(i) Whether Smt. Sahodara executed a will deed dated 18.1.1983?

(ii) What if any is the effect of entries of the name of Smt. Gurpyari Devi and Smt. Sahodara over the fixed deposit receipts?

(iii) Whether Smt. Sahodara had a right to execute will deed in respect of fixed deposit receipts?

(iv) Whether the suit is barred by provisions of Section 213 of Indian Succession Act?

(v) Whether suit is under valued and court fee paid is insufficient?

(vi) To what relief if any, is the plaintiff entitled?

6. After recording parties evidence and hearing arguments, the learned trial court held that plaintiff has succeeded in proving execution of will deed dated 18.1.1983 by Smt. Sahodara and decided issue no.1 in favour of plaintiff. On issue nos.2 and 3 trial court gave a finding in favour of plaintiff against the defendant and also decided issue no.4 in favour of plaintiff and against defendant while issue no.5 had been previously decided on 10.9.1991 against defendant. In view of above findings on issue no.6 trial court held that plaintiff has succeeded in proving his case and decreed the suit vide judgment and decree dated 4.9.2001.

7. Feeling aggrieved defendant no.1 Smt. Gurpyari Devi preferred Civil Appeal No.264 of 2001 before District Judge, Kanpur Nagar which was transferred for disposal to the court of Additional District Judge, Court No.8, Kanpur Nagar. The lower appellate court vide impugned judgment and decree dated 18.1.2002 allowed appeal and set aside the judgment and decree passed by trial court in Civil Suit No.193 of 1986 dismissing the suit of plaintiff.

8. Feeling aggrieved the plaintiff has preferred instant second appeal.

9. The instant second appeal has been admitted vide order dated 8.2.2002 on following two substantial questions of law :-

(1) Whether the first appellate court has erred in dismissing the suit on the ground that the suit for declaration is not maintainable?

(2) Whether the first appellate court has erred in carving out a new case itself regarding the maintainability of the suit?

10. Heard Shri Some Narayan Mishra, learned counsel for p