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JAMMU AND KASHMIR HIGH COURT
Javed Iqbal Wani, J.
Sheikh Mohammad Amin and Anr. – Petitioners
versus
Yasir Farooq and Ors. – Respondents
RFA 57 of 2022
Decided on 7.4.2023
(A) Succession Act, 1925 – S.384 – Grant of Succession Certificate – nature of proceedings - Summary in Nature - the proceedings for grant of succession certificate under the Act of 1925 are of summary nature and do not confer any title to the amount in favour of certificate holder. The court under the Act has to confine itself entirely to the question of a right to certificate and not to decide upon the title, reality or character of the claim – thus the observation made by the court below cannot said to be final determination of status by any stretch of imagination, in that, the court below in terms of the Act of 1925 has conducted an enquiry of summary nature without deciding the title, reality or character of the claim/counter claims made before it by the parties. The grounds thus urged by the appellants in this regard thus are misconceived and are not acceptable. [Para 4 to 6].
(B) Civil Procedure Code, 1908 – S.11 – Res Judicata – Finding of a court when can be held to be binding - A closer and deeper examination of the impugned order tends to show that the court below has not been oblivious to the stand taken by the appellants herein before it that the respondent 1 herein had been allegedly divorced by the deceased in the year 2016, yet has rightly not relied upon the said contention of appellants while considering the grant of the certificate in question, in that the appellants had failed to produce any witness to establish the said contention whereas to the contrary the respondent 1 had produced witness cross-examined by the counsel for the appellants herein to establish that beyond date of alleged divorce i.e. 29.10.2016 the deceased in fact had admitted the respondent 1 to be his legally wedded wife in the maintenance proceeding filed by respondent 1 herein before the court of Judicial Magistrate 1st Class/City Munsiff, Srinagar wherein the said court had passed an order on 1.3.2017 and the said court had recorded therein that the counsel for the non-applicant 2 i.e. the deceased, had admitted that the applicant 1 - respondent 1 herein, as non-applicant 2’s wife and respondent 2 his child, yet risking repetition making of said observation or recording of a finding about the status of respondent 1 as widow of the deceased instead of a divorcee by the court below yet cannot be said to be a finding binding upon the appellants herein or operating as res judicata against the appellants - The appellants, thus, would be well within their rights to question the said title or status of the respondent 1 in an appropriate proceeding. [Para 7].
Result: Appeal dismissed.
JUDGMENT
The instant appeal has been filed in terms of section 384 of the Indian Succession Act, 1925 (hereinafter referred to as the Act of 1925) against the order dated 3.11.2022 (hereinafter impugned order) passed by the court of District Judge, Srinagar, (hereinafter court below) in case titled as “Yasir Farooq and another versus public at large and others¡±.
2. Before adverting to the grounds urged in the memo of appeal, a brief background of the facts becomes imperative hereunder:—
• The appellants claim to be parents of one Sheikh Sajad Amin, who is stated to have died on 17.8.2017 (hereinafter referred to as the deceased) and is survived by a minor son – respondent 2 herein.
• The deceased is stated to have divorced his wife - respondent 1 herein - during his lifetime and also executed a divorce deed dated 29.10.2016 in this regard.
• The deceased is stated to have been an employee of the Transport Department, having left behind an amount of Rs. 6 lakhs in his CP Fund account.
• The respondent 1 herein is stated to have filed an application on her behalf and on behalf of respondent 2 under section 372 of the Act of 1925 before the court below for grant of succession certificate in respect of debts/securities to the deceased without initially impleading the present appellants as party non-applicants in the said application.
• The appellants herein are stated to have become party non-applicants on 24.9.2021 in the application filed by the respondent 1 and 2 before the court below, and filed objections in opposition to the application resisting the claim of respondent 1 herein on the ground that she stood divorced by the deceased in the year 2016 while admitting the respondent 2 herein to be legal heir/son of the deceased.
• The court below after providing an opportunity to the parties to lead evidence, passed the impugned order issuing succession certificate in favour of the applicants - respondents 1 and 2 herein, as also in favour of non-applicants 3 and 4, appellants herein, apportioning the amount of Rs. 6 lakhs of the deceased as follows:—
“Out of amount of Rs.6,00,000/-, petitioner no. 1 as widow of the deceased would be entitled to 1/8th of the said amount i.e. Rs. 75,000/-, respondent no. 2 and 3 would be entitled to 1/6th share each i.e. Rs. 1,00,000/- each and petitioner no. 2 as residuary shall be entitled to rest of the amount i.e. Rs. 3,25,000/-.”
• The court below while issuing aforesaid certificate in terms of the impugned order further directed in the impugned order filing of an indemnity bond by the parties to the effect that they shall indemnify the person(s) who may at any time prove that he/she was also entitled to this amount, besides providing that the share of the minor applicant, respondent 2 herein, shall be put in a fixed deposit in some nationalized bank till he attains majority and on behalf of the minor applicant 2, the indemnity bond shall be filed by the applicant one, her mother.
• The impugned order is being questioned inter alia on the following grounds:—
(a) That the order/award passed by the Ld. Court below is illegal to the extent it holds the respondent No. I entitled to l/8th of CP Fund amount left behind by the deceased Sajad Amin. It is submitted that the court below has assumed respondent No. I to be the widow of the deceased Sajad Amin, which is contrary to the facts. As stated hereinbefore, the deceased son of the appellants Sajad Amin had divorced the respondent No. I during his lifetime much before his death. The divorce had taken place through intervention of the civil society. The appellants in this context seek to place on record copy of the memo dated 28-03-2017 recorded by the civil society of Bachhi Darwaza Makhdoom Sahab Srinagar Falah Walslah Committee bearing the signatures of the respectable citizens of the locality as Annexure-III. The contention of the appellant is fortified by another memo recorded in presence of the civil society of the locality
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