Punjab-Haryana High Court
Joginder Pal vs Indian Red Cross Society And Ors. on 5 October, 1999
Equivalent citations: (2000)125PLR280
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Joginder Pal @ Joginder Nath son of late Panna Lal Diwan, has filed the present appeal and it has been directed against the judgment dated 5.4.1997, passed by the Addl. Sessions Judge, Gurdaspur, who accepted the appeal of the Indian Red Cross Society, Gurdaspur (hereinafter referred to 'the Society') and set aside the order dated 18.1.1997, passed by the Court of Civil Judge, Sr. Divn., Gurdaspur, who rejected the plaint of the Society under Order 7 Rule 11, CPC, by holding that the plaint does not disclose any cause of action.
2. Some facts can be noted in the following manner:- .
3. This is a second bout of litigation. At the first instance, the Society filed a petition under Section 372 of the Indian Succession Act (hereinafter referred to as the Act) against general public and Joginder Pal and claimed the succession certificate with regard to the estate of Raj Mohni Rulia Ram d/o. Mohan Lal, who died on 27.4.1998 at Gurdaspur and according to the Society, the deceased executed a valid will dated 2.4.1985 in its favour vide which the deceased be-queathed her liquid assets along with immovable property in favour of the Society. Notice of the petition was given to the respondent and the general public. Joginder Pal contested that petition with a reply that Raj Mohni Rulia Ram had cancelled the will executed in favour of the Society. Rather, she executed another valid will dated 12.6.1987 in favour of the appellant, who happens to be the real cousin (brother of the deceased), The mother of Raj Mohni; namely, Leela Wanti and Panna Lai, father of the appellant were real brother and sister. Vide the said will dated 12.6.1987, the deceased bequeathed her entire property in his favour. She was in a sound disposing mind. On the basis of the said will, he is entitled to receive the liquid assets as well as the other estate of the deceased. Two issues were framed by the court: -
1. Whether Miss Raj Mohni executed a valid will dated 2.4.1985 in favour of the Red Cross Society-applicant as alleged? OPA
2. Whether Miss Raj Mohni executed a valid will in favour of Joginder Pal, respondent No.2 on 12.6.1987 as alleged? OPR
4. The parties led oral as well as documentary evidence in support of their case and, ultimately, vide order dated 30.3.1993, it was observed by the trial Court that Joginder Pal was entitled to receive the liquid assets of the deceased Raj Mohni as her only legal heir oh the basis of the Will executed in her favour by deceased Raj Mohni during her life time in a sound disposing mind. The said Will dated 12.6.1987 is Ex.R-1 of the record. Respondent No.2 is directed to file the security in the sum of Rs.2,50,000/- by filing a personal bond and surety bond. The application under Section 372 of the Act filed by the Society was disposed of. Meaning thereby that the Will dated 2.4.1985 propounded by the Society was not approved. This order was challenged upto the High Court By the society but without any success. The second round of litigation started when the society filed a suit for declaration to the effect that it is the lawful owner and in possession of the estate of the deceased and is also entitled to the asserts; movable and immovable, of the deceased who died on 24.7.1998 on the basis of the will dated 2.3.1985, executed by Raj Mohni in its favour and with consequential relief of perpetual injunction restraining the defendants, Joginder Pal and Ors. from interfering in the possession of the Society which had the control and the management over the estate of the deceased. During the pendency of the said suit, Joginder Pal, appellant, filed an application under Order 7 Rule 11 r/w Section 151, CPC, for rejection of the plaint and it was averred that all the previous litigations and judgments under the same title and between the same parties had been finally disposed of by the competent Court upto the Hon'ble High Court and that the plaintiff-society has no locus standi to file the suit. It was alleged by the applicant that the Society filed a false and frivolous Succession case No. 16 of 1989 in order to get the movable and immovable property of Raj Mohni on the basis of the revoked will dated 2.4.1985. The claim of the Society regarding the aforesaid property was declined and even the appeal filed by the society was dismissed on 20.8.1996 by the learned Distt. Judge, Gurdaspur, and the will dated 12.6.1987 was held to be the last legal genuine will in favour of Joginder Pal. The Society again filed a false and frivolous civil revision in the High Court, challenging the validity of the will and the jurisdiction of the court, which was also dismissed by the High Court on 10.10.1996 and, thus, the will dated 12.6.1987 has become final and it operates as res-judicata. It was further alleged that the suit is totally covered under Section 11, CPC, and the parties to the litigation are litigating under the same title with regard to the validity of the will dated 12.6.1987 or the will dated 2.4.1985. With the above broad allegations, Joginder Pal prayed that the plaint be rejected under Order 7 Rule 11, CPC.
5. Notice of the application was given to the Society, which denied the allegations. According to the Society, if the lawful heir of Raj Mohni by virtue of the will executed in its favour and, as such, the Society had the locus standi to file the suit which is neither barred under Order 2. Rule 2, CPC, nor under Section 11 CPC. The defendants have no right, title or interest in the property. The plaint cannot be rejected under Order 7, Rule 11, CPC.
6. After hearing the counsel for the parties, the learned Civil Judge, Sr. Divn., Gurdaspur vide order dated 18.1.1997 allowed the application and rejected the plaint by stating that the plaint does not disclose any cause of action as it is barred by the principles of res-judicata.
7. Aggrieved by the order dated 18.1.1997, the society filed an appeal before the Addl. Distt. Judge, Gurdaspur, who vide the impugned judgment dated 5.4.1997 accepted the appeal of the society and set aside the order of the trial court and directed the trial Court to decide the matter in accordance with law and the parties were directed to appear before the Court of the Civil Judge, Sr. Divn., on the specified date. Reasons in allowing the appeal on the part of the first appellate Court are contained in paras 5 to 8 of the said judgment, which read as under:-
"I have heard learned counsel for the parties and have gone through all the documents on the file. The learned counsel for the appellant has argued that an application for grant of succession certificate was filed by the appellant Society, which was dismissed and succession certificate was granted in favour of Joginder Pal on the basis of will dated 12.6.1987 set up by him. His contention is that the application for succession certificate was filed under Section 372 of the Indian Succession Act, 1925 and has contended that proceedings for the grant of succession certificate are sum mary proceedings and are not final. He has argued that a party aggrieved due to the non-issuance of certificate can file a suit for the determination of its title. He has referred to Section 387 of Indian Succession Act, 1925, which reads us under :-
"387. Effect of decisions under this Act and liability of holder of certificate thereunder :-
No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceedings between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefore to the person lawfully entitled thereto."
The learned counsel has argued that the bare reading of this section would show that proceedings under Chapter X of the Indian Succession Act, 1925 are of summary nature and the decision of a court under this part does not finally adjudicate the rights between the parties. He has further argued that a decision of the Court not granting succession certificate does not bar the trial for the same question in any suit or any other proceedings between the same parties. The learned counsel has referred to A.I.R. 1920 Lahore 497, Rattan Singh and Ors. v. Raj Singh and Anr., in which case it was held by the Hon'ble High Court of Lahore that proceedings under the Indian Succession Act were of summary nature and that the decision of the court under this Act upon a question of right does not bar the trial of same question in any suit or in any other proceedings between the same parties. A reference has further been made to A.I.R. 1937 Lahore 196(2), Mt. Charjo and Anr. v. Dina Nath and Ors., in which case also it was held that the grant of succession certificate did not finally decide the matter and that it also did not bar filing of a regular suit. The learned counsel has argued that the perusal of the above said facts and the observations made in above referred authorities go to show that proceedings under Section 372 of the Indian Succession Act, 1925 are bf summary nature and do not bar the filing of a suit for the determination of a question of title.
6. On the other hand, the learned counsel for the respondents has referred to number of judgments and has argued that decision of the court granting succession certificate cannot be challenged in any proceedings later on and that the same is final adjudication of the matter, he has referred to A.I.R. 1992 Andhra Pradesh 232, Doggiipati Tirupalamma v. K.M. Subbamma, in which case it was held that a petition for succession certificate was of civil nature. He has further referred to Supreme Court Judgment 1993(1) Rev.L.R. 426 (S.C.), Chiranji Lal Shrilal Goenka v. Jasjit Singh,in which case it was held that Probate Court had been conferred exclusive jurisdiction for the grant of probate of Will and that the grant of probate is final subject to appeal. It was further held that the grant of Probate is a judgment in rent. A reference has further been made to A.I.R. 1992 Madhya Pradesh 224, Ram Shanker v. Balakdas, in which case it was held that Probate Court was vested with exclusive jurisdiction and no issue could be framed by the civil court to decide the question of last will. Reference has also been made to 1994(1) Rev.L.R. 117 : 1994(2) L.J.R. 68 Deepinder Singh Dhillon v. General Public, in which case it was held that grant of probate was based only on the validity and contents of the Will and appointment of executor. A reference has been made to A.I.R. 1984 S.C. 1866, Smt. Rukmani Devi and Ors. v. Narendra Lal Gupta, in which case it was held that the parties were precluded from contesting the validity of the will when a probate had already been issued. I have gone through all the authorities referred by the counsel for the respondent but the observations made in these cases do not apply on the proposition involved in the case in hand. In the authorities referred above, it has been held that the decision in the grant of probate is final and the grant of probate cannot be challenged later on. In the case in hand a probate was not granted in favour of Joginder Pal. Only a succession certificate was issued and the perusal of Section 387 of Indian Succession Act, 1925 shows that the proceedings under Chapter X of the Act are of summary nature and the parties to the succession case are at liberty to re-agitate the matter in suit or in any other proceedings between the parties. So the observations made in the above referred cases do not apply on the facts of the case in hand.
7. The learned counsel for the respondent referred to 1996(7) J.T. S.C. 580, Smt. Sawarni v. Smt. Inder Kaur, which case it was held by the Hon'ble Supreme Court that District Judge committed serious error of law in not considering the will and the succession certificate which clinched the matter. A reference was also made to (1995-3)111 P.L.R. 337, Mahant Brahm Dass v. Mahant Sarju Dass in which case similar observations were made. The facts of both the cases are almost similar. In these cases, the wills on the basis of which succession certificates were issued had been lost and civil suits were filed by the parties on the basis of the wills, but the wills were rejected on the ground that the parties setting up the wills had failed to prove the wills, it was discussed in these cases that succession certificate had been issued on the basis of wills and as such, the court wrongly rejected the evidence produced by the parties for the mere loss of the original will. The observations made in these cases do not help the respondent in any manner and rather the observations made in these cases help the case of the appellant because in these cases civil suits were filed by the parties after the grant of succession certificate.
8. I have discussed above that the grant of succession certificate is a summary procedure and no finality is attached to the grant of succession certificate. It is pertinent to mention here that succession certificate are allowed subject to the furnishing of indemnity bond in which an undertaking had to be made by the person in whose favour succession certificate is issued that he would be liable to indemnify the person, if any other person would be found entitled to claim them later on. It shows that the grant of succession certificate is not a final verdict on the question of title. A succession certificate is issued to a person, who prima facie appears to be entitled to receive the same and it can be issued even to some of the claimants out of many. In the case in hand, the Indian Red Cross Society had made an application for the grant of succession certificate but the succession certificate was granted in favour of Jogirider Pal respondent. Thereafter the Indian Red Cross Society filed a suit on the basis of Will dated 2.4.J.985, which was filed earlier to obtain succession certificate. The decision of the Court in the grant of succession certificate is not final in view of Section 387 of the Indian Succession Act, 1925 and the plaintiff-appellant was within his rights to seek declaration by filing a suit. Thus, I have come to the conclusion that the learned Civil Judge (Senior Division) had wrongly rejected the plaint filed by the appellant holding that the same did not disclose any cause of action and was barred by the principle of res judicata.
8. This time, Joginder Pal has filed the present appeal and has given challenge to the judgment of the first appellate Court by adding the Society and respondents No.2 to 7, who are transferees of interest from Joginder Pal, as respondents.
9. I have heard Mr. M.L. Sarin, Sr. Advocate, for the appellant, who has been supported by Mr. O.P. Goyal, Sr. Advocate, on behalf of the respondent Nos.2 to 7 and Mr. Hemant Kumar, Advocate for the respondent No.1 and with their assistance have gone through the record of this case.
10. Order 7 Rule 11, C.P.C. which deals with the rejection of the plaint, lays down that the plaint can be rejected in the following cases:-
"(a) where it does hot disclose a cause of action;
(b) xx xx xx xx xx xx xx xx (c) xx xx xx xx xx xx xx xx
(d) where the suit appears from the statement in the plaint to be barred by any law.
Provided xx xx xx xx xx xx xx"
11. The predominant submissions made by the counsel for the appellant and the counsel for respondents No.2 to 7 were that right upto the Hon'ble High Court, it has been established that Raj Mohni, deceased, executed a valid and genuine Will dated 12.6.1987 in favour of Joginder Pal and the Will dated 2.4.1985 which is being propounded by the Society in the suit itself, has been ignored and rejected. The proceedings of the Act have taken finality. The rights of the parties have been adjudicated in the competent Court of jurisdiction and, in these circumstances, any effort made by the Society in filing a separate suit will be barred by law and, moreover, such a plaint does not disclose any cause of action. Mr. Sarin submitted that the Society is none else but the same party which itself had filed the petition under Section 372 of the Act. Had it been a stranger to the earlier proceedings under Section 372 of the Act, it could be said with some legitimacy that the Society had the right to file a separate suit. Moreover, Mr. Sarin submitted that the validity of the Will dated 12.6.1987 or the Will dated 2.4.1985 will be the subject matter of the suit and to this extent a finding has already been granted by the competent court while disposing of the petition under Section 372 of the Act that the Will dated 12.6.1987 in favour of the appellant was the last legal and genuine Will of the deceased. In these circumstances, the trial Court had rightly held that the plaint of the Society does not disclose any cause of action and such a plaint is barred by the law of res judicata. Mr. Goyal supplemented the submissions of Mr. Sarin by stating that when the succession certificate, which was applied by the society was not given by the trial Court, the option with the Society was to either file a suit or an appeal. At that juncture, the Society did not file any suit. It preferred to file an appeal, which was dismissed. Again, the Society preferred to file a revision in the High Court, which too was dismissed and, in these circumstances, the suit of the Society for declaration was barred by law and such a plaint could be rejected and has been rightly rejected by the trial Court.
12. On the contrary, Mr. Hemant Kumar, counsel for the Society submitted that the proceedings under Section 372 of the Act are in the nature of summary proceedings. Irrespective of the fact that the Society had lost in the proceedings under Section 372 of the Act upto the High Court, still there is no bar to file a separate suit by virtue of the provisions of Section 387 of the Act. He submitted that the succession certificate, which has been granted in favour of the appellant can be revoked by a separate suit and irrespective of the fact that in the proceedings under the Act, the Will dated 2.4.1985 propounded by the Society has not been approved, there is no bar to re-aggitate the question of title with regard to the estate of the deceased Raj Mohni.
13. I will also discuss the case law referred to by the counsel for the parties in the subsequent portion of this judgment but at this stage, I can only say that the present appeal of Joginder Pal is totally devoid of any merit.
14. An application was moved by Joginder Pal under Order 7, Rule 11, C.P.C. The plaint could be rejected if it is shown to the trial Court that it does not disclose any cause of action. The word 'cause of action' has not been defined in the C.P.C. but what I understand about the 'cause of action' is that it is a bundle of facts on which the plaintiff relies in order to get the relief from the civil Court. Similarly, the plaint can be rejected if prima facie, it appears to the court that such plaint or the contents of the plaint are barred by any law for the time being in force. The appellant wanted to take the benefit of Section 11, C.P.C. or the provisions of Order 2, Rule 2, C.P.C. I can say here that the provisions of Order 2, Rule 2, C.P.C. are not applicable at all and, now, I have to examine whether the provisions of Section 11, C.P.C, can be invoked at this stage for the purpose of disposing of the application under Order 7, Rule 11, C.P.C. I am not making any comments that the defendant Joginder Pal cannot succeed in the main suit at all under Section 11 of the C.P.C. He may nor may not succeed. If he proves that the suit filed by the Society is barred by the principles of res-judicata or it is barred under any of the exceptions added to Section 11, it will still be open to the defendant to take the benefit of that plea but only after filing the written statement and after claiming an issue to that effect. Whether the plaint could be out-rightly rejected under Rule7 Rule 11, C.P.C. without calling the defendant to file the written statement is a point for adjudication. While examining whether the plaint discloses any cause of action or whether it is barred by any law, we are supposed to be governed by the allegations of the plaintiff. The society has categorically stated that it is entitled to the estate of Raj Mohni on the basis of the Will dated 2.4.1.985. In these circumstances, there was a triable claim alleged by the plaintiff and the plaint, prima facie disclosed a cause of action. Whether that cause of action may, ultimately, succeed or not is a different point, which can only be adjudicated after framing the issue in that regard. I will further develop any argument on Explanation 8 added to Section 11, w.e.f. 1.2.1977 but at this stage, it will be appropriate for me to refer to the relevant provisions of the Act.
15. We all know that the succession certificate are granted under Part X of the Act. First of all, I would like to refer to the provisions of Section 370 of the Act, which lays down that a succession certificate shall not be granted under this Part with respect of any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. The next section is Section 372 which talks of application for obtaining a succession certificate. As per Sub-section (f) of Section 372, a succession certificate can be obtained for the debts and securities in respect of which the certificate is applied for. Section 373 lays down that if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a particular date. As per Sub-clause (b) of this section, the proceedings under Section 372 of the Act are in the nature of summary proceedings and the Court only can decide the right to obtain the certificate. As per Section 374, when the District Judge grants a certificate, he shall therein specify the debts and securities set forth in the application for the certificate, and may thereby empower the person to whom the certificate is granted to receive interest or dividends as per (a), (b) and (c) of this Section. Under Section 375, the District Judge can also call upon a person in whose favour, a succession certificate is granted to furnish a security for rendering an account of debts and securities received by him and for indemnifying a person who may be entitled to the whole or any part of those debts and securities. Meaning thereby, that succession certificate was granted in summary proceedings in favour of a person so that he may be able to collect the estate of deceased lest it may be spoiled or wasted.
16. The next section which can be quoted with advantage is Section 383, which talks of the revocation of the certificate issued under the preceding section. For our purposes, Sub-clause (e) is .relevant. A certificate can be revoked through a decree or order made by a competent Court in suit or other proceeding with respect to the effects comprising debts or securities specified In the certificate, renders it proper that the certificate should be revoked.
17. The next very important section for our purposes is Section 387, which clinches all the arguments of the counsel for the appellant and counsel for respondents 2 to 7. As per this Section, no decision under this Part (Part X) upon any question of right between any parties shall be held to hear the trial of the same question in any suit or in any other proceedings between the same parties, and nothing in this Part shall be construed to affect the liability of any person who. may receive the whole or any part of any debts or security or any interest or dividend on any security, to account therefore to the person lawfully entitled thereto.
18. A reading of this Section makes it abundantly clear that a person who has not been able to succeed under the provisions of Section 372 to 373, aforesaid, has an independent right to file a suit in which he can question the right of his adversary to obtain the succession certificate through such adversary may be a party to the earlier proceedings. Thus, even if the Society under the earlier proceedings, has not been able to succeed, still it can give the challenge with regard to the title and right to the Will dated 12.6.1987 propounded by the appellant. The distinction which has been sought to be drawn by Mr. Sarin that the validity in the present suit will be adjudicated and that validity of the Will has already been adjudicated in the earlier proceedings under Section 372 of the Act, is meaningless because the validity of the Will would ultimately lead to the question of right between any parties, who are permitted to raise the same question in the suit even if the parties are the same in both the proceedings. The reason is very obvious because the proceedings under Section 372 of the Act are in the nature of an inquiry and this inquiry is further in the nature of summary proceedings. The decision in the proceedings under Section 372 of the Act is not conclusive and the same question can be tried in any other suit or proceedings between the same parties, as held in Rattan Singh and Ors. v. Raj Singh and Anr., A.I.R. 1920 Lahore 497 and Mt. Charjo and Anr. v. Dina Nath and Ors., A.I.R. 1937 Lahore 196(2). In 1976 Madras 138(141), it was held that in view of Section 387, the testamentary proceedings are summary in nature and any decision therein in respect of the rights does not preclude the parties to litigate in a regular suit.
19. Here, at this stage, it may be appropriate for me to deal with the arguments of Mr. Sarin, who relied upon Explanation 8 attached to Section 11, C.P.C. This Explanation lays down that an issue heard and finality decided by a Court of limited jurisdiction competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such/Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
20. Mr. Sarin, wanted to say that even if it is assumed for the sake of arguments that the proceedings under Section 372 of the Act were of summary nature or that it has been given by a Court of limited jurisdiction in the course of inquiry, nevertheless, the Court was competent to decide the validity of the Will, therefore, the decision given in favour of the appellant right upto the High Court, shall operate as res judicata and, in these circumstances, the plaint has been rightly rejected under Order 7, Rule 11(d), C.P.C. by the trial Court.
21. The argument of Mr. Sarin can be repelled on two counts; firstly, it will be seen by the trial Court itself after entertaining the written statement whether the provisions of res judicata are applicable and; secondly, before any finding can be given, it will become necessary for the parties to the suit to place on record the order passed by the succession Court as well as the pleadings of the parties, etc. Straightaway, a finding cannot be given in favour of the appellant that the plaint of the Society is barred by the principles of res judicata, which will be a mixed question of law and facts in the present case.
22. Mr. Sarin submitted that if the application under Order 7, Rule 11, C.P.C, of the appellant is not allowed it will be a hardship to the appellant who had become successful right upto the High Court in the proceedings under Section 372 C.P.C.
23. There is no merit in this contention. The scheme of Chapter X of the Act is such that any declaration under Section 372 of the Act has to be for a limited purpose authorising the person to collect the debts of the deceased. He is holding these debts for a person who proves his better title. It will not make a difference that the earlier petition was filed by the Society and the Society is not again filing the suit. A remedy has been provided to an unsuccessful litigant of Section 372 under Section 387 of the Act, which is being now adopted by the Society. The words 'same purpose' are of significance. There is no provision under Chapter X introduced by the Legislature, inter alia, providing that grant of succession certificate under Section 372 will bar the filing of the separate suit on the same subject matter or on the same cause of action as we find in Chapter X and in this regard we can refer to Section 273 of the said Act, which gives conclusiveness to the grant of probates and letters of administration which are totally independent from the succession certificate.
24. Here I would like to refer to the case law, which has been quoted at the Bar by the counsel for the appellant and he firstly drew my attention to Smt. Sawarni v. Smt. Inder Kaur and Ors., 1996(7) J.T. S.C. 580, wherein in para 7 it was held as follows:-
"The Additional District Judge committed serious error of law is not considering the said Will and the succession certificate in question which unequivocally clinches the matter and thereby the ultimate judgment of the Additional District Judge is vitiated. The High Court also was in error in not examining these question and dismissing the Second Appeal in limine."
25. I have gone through this judgment of the Hon'ble Supreme Court and in my opinion, it will not advance the case of the appellant. The dispute in the cited case was with regard to the estate of one Gurbax Singh, who died leaving behind his widow and daughter and one Smt. Roori alias Kirpal Kaur. After the death of Gurbax Singh, the mutation of the estate of Gurbax Singh was effected in the name of one Inder Kaur in the revenue record. Gurdeep Kaur, widow of Gurbax Singh executed a Will in respect of the entire estate in favour of the plaintiff and Ro'ori and after the death of Gurdeep Kaur, the succession certificate was issued by he civil Court under the Act in favour of the plaintiff and Roori. In that very context, the Hon'ble Supreme Court held that rights flowing under Succession Act could not be ignored so easily. No attempt was made by the defendants to annul the succession certificate on the grounds available under the Succession Act and, therefore, due importance has to be given to the succession certificate. In the present case, the succession certificate granted under Section 373 of the Act could be challenged either under Section 378 or it could be challenged by way of a separate suit as contemplated under Section 387. Exactly, in the present case, it has been done.
26. Mr. Sarin, then relied upon Mahant Brahm Dass Chela Mahant Janki Dass v. Mahant Sarju Dass, (1995-3) 111 P.L.R. 337, and argued that the succession certificate granted by the succession Court is a judgment in rem as a result of which, the suit of the plaintiff-Society was barred by law as contemplated under Order 7. Rule 11(d), C.P.C.
27. No doubt the judgment of the succession court is a judgment in rem provided it gets finality, which it has not attained so far in the present case. Till the finding of the succession court has attained finality, no benefit can be taken up by the appellant.
28. Then reliance was placed on Darshan Singh v, Kuldip Singh, (1979)81 P.L.R. 706, where it was held if a letter of administration is granted on the basis of a Will it is a judgment in rem regarding execution of the Will and binds the whole world. We are not dealing with a case of a letter of administration. Even otherwise, Section 387 of the Act gives right to the Society to challenge the findings of the succession Court in a separate civil suit.
29. The counsel, then, relied upon Ram Shankar v. Balakdas, A.l.R. 1992 Madhya Pradesh 224, in which it was laid down that, where exclusive jurisdiction is vested in the special forum created under the Act, which is a Special Law, for grant of probate and for the matters connected therewith, obviously that forum, namely Probate Court must have exclusive jurisdiction to decide in the case of contest between two Wills, if and which one of the two of them had been duly proved or established as the last Will of the testator because the question of revocation, which may be repress or implied, only it can decide under the Act. The judgment is distinguishable on the face of it. Had the earlier proceedings were with regard to the grant of probate, the position would have been different. In that eventuality, the decision of the competent Court would have attained finality.
30. The counsel, then, relied upon Inder Singh v. Darshan Singh, (1993-3)105 P.L.R. 537. In this case the suit was instituted in the year 1984 by the unsuccessful plaintiff and he challenged the order dated 30.9.1976. Prima facie, the suit was not within limitation and, in these circumstances, the plaint was rejected but here, this is not the position. The order of the High Court was passed somewhere in the year 1996, after the passing of the judgment dated 20.8.1996. The suit of the Society was within limitation, prima facie.
31. The counsel also relied upon Sulochana Amma v. Narayanan Nair, (1993-2) Rev.L.R. 367 (S.C.), and submitted that the expression 'Court of limited jurisdiction' in Explanation VIII is wide enough to include a Court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Section 11 is to be read in combination and harmony with Explanation VIII and the net result that would flow is that an order or an issue which had risen directly and substantially between the parties or their privies and decided finally be a competent Court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceedings, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit.
32. Mr. Sarin, in the view of this Court, is going one step ahead. If his client wants to defeat the suif of the Society by taking the plea of res judicata or any other law for the time being in force, or on the plea that the plaint does not disclose any cause of action, his client has to file the written statement. The Civil court, then, has to frame the issues, and, thereafter, under Order14, Rule 2, C.P.C. the question of law can be adjudicated as preliminary issue but to throw the plaint of the Society under the protection of Order7, Rule 11(a) and (d), C.P.C. would be illegal.
33. Here, I would like to deal with the case law which has been referred by Mr. Goyal, counsel for respondents 2 to 7.
34. The counsel relied upon Savitri Devi v. Smt. Manoramma Bai Rai, 1998(2) R.C.R. (Civil) 607, a Division Bench judgment of the Madhya Pradesh High Court, where it was held that an order of grant of succession certificate is appealable though Section 387 prescribes that the party challenging grant of succession certificate can file a civil suit, however, the choice is with the party to elect to file an appeal or a civil suit to challenge the said order. Mr. Goyal wanted to develop the argument by stating that when the succession certificate was granted in favour of appellant Joginder Pal by the trial, in that eventuality, the Society had the option either to file an appeal or to file a civil suit. Since, the Society filed the appeal, which has already been dismissed, therefore, the present suit is barred under Order7, Rule 11 (d) C.P.C.
35. I am not in a position to subscribe to the argument of Mr. Goyal. Till finality is attached to the proceedings under the Succession Act, it will always be open to the Society to defer its remedy of filing the civil suit. In the opinion of this Court, this judgment, rather, goes against Mr. Goyal.
36. Reliance was also placed on Balbir Kaur and Anr. v. The Gram Panchayat village, Jalabehra and Anr., 1986 R.L.R. 112, in which the only principle laid down was that the provisions of Section 11, C.P.C. are based on justice, equity and good conscience and on the doctrine of conclusiveness of determination as to points already agitated between the same parties. There is no dispute about this principle of law. Nobody should be vexed on the same cause of action again and again and the proceedings of the Court must get finality but in the present case, it cannot be said that the grant of the succession certificate in possession of the plaintiff is not subject to suit raising the same point between the same parties.
37. In Rattan Singh and Ors. v. Raj Singh and Anr., A.I.R. 1920 Lahore 497, it was held by the Hon'ble High court that the proceedings under the Succession Act are of a summary nature and the only things which the Court, is required to decide is whether the applicant has a prima facie right to collect the debts and the decision of the Court under the Act on a question of right does not bar the trial of the same question in any suit or in any other proceeding between the same parties. This judgment has been rightly accepted by the first appellate Court.
38. In Mt. Charjo and Anr. v. Dina Nath and Ors., A.I.R. 1937 Lahore 196(2), it was observed that the enquiry in proceedings for grant of succession certificate is to be summary, and the Court, without determining question of law or fact, which seems to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prim'a facie the best title thereto. In such cases the Court has not be determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent their being time-barred, owing (for instance) to dispute between the heirs inter se as to their preferential right of succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorizing him to give a valid discharge for the debt. The grant of a certificate to a person does not give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se. If necessary the Court can grant certificate conditional on the grantee furnishing security for indemnifying the person who may be ultimately held entitled to the whole or any part of the debt.
39. The sum and substance of the above discussion would be that the cause of action has not been defined in the C.P.C. but it amounts to a bundle of facts on which the plaintiff wants to rely in order to get the relief from the civil Court; while seeing whether the plaint discloses a cause of action or not, the allegations of the plaint are to be examined at that juncture and the civil Court need" not go into the probate defence. The grant of succession certificate in favour of one party does not prevent the adversary to file a separate suit and give challenge to the validity of the Will already adjudicated in favour of the adversary, by virtue of the provisions of Section 387 of the Act; the plea of res judicata is necessarily a mixed question of law and facts depending upon the facts and each case and in order to dislodge the plaintiff, it is not necessary to file the written statement and, then, to frame the issue and a preliminary issue can only be dispose of as per the provisions of Order14, Rule 2(2), C.P.C. In the present case, it is held that the grant of Succession Certificate in favour of the appellant on the basis of the Will dated 12.6.1987 does not preclude the Society in filing the present Will on the basis of the Will dated 2.4.1985 and the Society is well within its right to give challenge to the Will dated 12.6.1987. Even if Joginder Pal and the Society were parties to the earlier Succession Act proceedings, the Society can independently file the suit claiming its right to call upon the civil Court to adjudicate whether the opposite party can become the owner of the property on the basis of the Will dated 12.6.1987 or not.
40. The net result is that this appeal is totally devoid of merit and the same is hereby dismissed with no order as to costs.
41. The parties, through their counsel, are directed to appear before the trial Court on 1.11. 1999, and the trial Court is directed to proceed with the suit according to law.