Advocates:
MALINI PODUVALRAMESH BABU M. R.

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 1 of 5

CASE NO.:

Appeal (civil) 1544 of 1990

PETITIONER:

MADHVI AMMA BHAWANI AMMA AND ORS.

RESPONDENT:

KUNJIKUTTY PILLAI MEENAKSHI PILLAI AND ORS.

DATE OF JUDGMENT: 27/04/2000

BENCH:

A.P. MISRA & M.B. SHAH

JUDGMENT:

JUDGMENT

2000 (3) SCR 752

The Judgment of the Court was delivered by

MISRA, J. This appeal is directed against the High Court order dated 26th

September, 1989 in second appeal. The short question raised in this appeal

is, whether an order granting Succession Certificate under Section 373 of

the Indian Succession Act 1925 would operate as res judicata to the suit

for partition filed in a civil court between the same parties.

The short facts are : the appellants are the defendants in suit No. 20 of

1974 which is filed by respondent No. l Velu Pillai since deceased claiming

to be the only legal heir as brother to the estates of one Kizhangumvilayil

died intestate. The suit was for declaration, partition and recovery of

possession of the plaint schedule properties. The said respondent also

filed O.P. No. 33 of 1974 in the same court for obtaining Succession

Certificate for receiving money from Life Insurance Corporation. The plain-

tiff case in the suit is that he along with Ramakrishna Pillai and the said

deceased Thankappan Pillai were the children of one Parameshwaran Pillai

and Karthiyayani Amma. Since the deceased Thankappan Pillai had no other

legal heir to succeed his estates, he is entitled to be declared as a legal

heir to the estates of the said deceased.

Defendants-appellants contested the said case. They pleaded that plain-tiff

was only their uterine brother and thus was not entitled to succeed as

legal heir. In fact, they are in possession of the suit property which

could not be disturbed except by any legal heir. Both, the suits and the

said proceeding under the Indian Succession Act were tried together and

decided by a cornmon judgment by the trial court. The trial court held,

there was no evidence to show that the marriage between Karthiyayani Amma

and Parameshwaran Pillai had been dissolved. The presumption is that

Thankappan Pillai was born to Karthiyayani Amma and Parameswaran Pillai.

The plaintiff being the real brother of the deceased Thankappan Pillai is

entitled to inherit his property. Thus the trial court decreed the suit

declaring the plaintiff as a sole heir and also allowed the said

application O.P. No. 33 of 74 by granting the Succession Certificate to the

plaintiff. The appellate court set aside both the judgments of the trial

court in suit and grant of the Succession Certificate, holding that there

was no valid marriage between Karthiyayani Amma and Parameswaran Pillai.

The High Court in second appeal set aside this appellate court judgment as

findings were not supported by pleadings in the case hence remanded the

case back for reconsideration. After remand, the appellate court dismissed

the appeal of the appellant by confirming the trial court judgment.

Thereafter the appellant filed the second appeal.

Submission for the respondent-plaintiff before the High Court was that

since appeal was not preferred against the order of the appellate court

arising out of the proceeding for the grant of the Succession Certificate,

http://JUDIS.NIC.IN

SUPREME COURT OF INDIA

Page 2 of 5

it became final, thus it operates as res judicata. The High Court by its

impugned order, upheld this contention. Thus High Court dismissed the

second appeal on this limited ground which is impugned before us. The

leamed counsel for the appellants submits that proceeding for the grant of

Succession Certificate is a summary proceeding and the same can not operate

as res judicata to a proceedings in a regular suit suit filed in the civil

court even if, it is between the same parties or issues are the same. The

grant of Succession Certificate under Section 573 bas only the effect that

it is conclusive as against the person owing such debts or liability on

such securities