Andhra HC (Pre-Telangana)
K.P. Narayana Reddy Alias Police ... vs Alla Nagi Reddy And Others on 13 September, 1995
Equivalent citations: AIR1996AP198, 1995(3)ALT750, AIR 1996 ANDHRA PRADESH 198, (1996) 1 HINDULR 421, (1996) 3 CURCC 188, (1996) 1 ICC 761, (1996) 1 ANDHLD 18
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. This is an appeal preferred by the petitioner against the order in I.A. No. 597 of 1984 in O.P. No. 35 of 1984, on the file of the District Judge, Kurnool. Under that I.A., the petitioner sought revocation of the succession certificate granted to the present respondent No.1 vide order dated 3-7-1984 of the District Judge, Kurnool in O.P. No. 35 of 1984. By the impugned judgment and order dated 22nd December, 1988 passed by the District Judge in I.A. No. 597 of 1984 in O.P. No. 35 of 1984, the learned District Judge, Kurnool dismissed that application. It is in these circumstances, the petitioner in I.A. No. 597 of 1984 has come to this Court by way of an appeal under Section 384 of the Indian Succession Act (hereinafter referred to as 'the Act').
2. The learned counsel for the appellant strenuously contended that the Court below was in error in not revoking the Succession Certificate granted in favour of respondent No. 1 having regard to the materials on record. He also submitted that granting Succession certificate itself was illegal. Therefore, it was a case for revocation of the said Certificate under. Section 383 of the Indian Succession Act. The learned counsel for the respondents supported the impugned judgment and order and he submitted that the same does not call for interference by this Court in this appeal.
In order to appreciate the rival contentions, I have to note few facts of the case.
3. One Smt. Narayanamma died on 28-6-1981. The present petitioner and another person had executed a pronote in her favour for Rs. 20,000-00. That was a debt dut to the present petitioner from the deceased Nara-yanamma. In those circumstances, the present respondent No.1 claiming himself to be the adopted son of deceased Narayanamma filed an application for issue of a Succession Certificate under Section 372 of the Act. After summary enquiry under Section 373 of the Act, the learned District Judge, Kurnool vide judgment and order dated 3-7-1984 in O.P. No. 35 of 1984 granted Succession Certificate in favour of the present respondent No.1. Thereafter, the present appellant filed an application in I.A. No. 597 of 1984 requesting the Court below to cancel the Succession Certificate issued to the present respondent No. 1. By the impugned order that I.A. No. 597 of 1984 has Been dismissed by the Court below. It is in these circumstances, this appeal is preferred.
4. The learned counsel for the appellant urged the following points in support of his arguments.
1. The application filed by the respondent No. 1 for the issue of Succession Certificate was defective and not in conformity with Section 372 of the Act, in the sense that the application did not furnish particulars required under Section 372(1)(f) of the Act; i.e., that respondent No. 1 did not furnish the name and description of the near relations. He further submitted that the provisions of Section 372 of the Act being mandatory and its non-compliance calls for revocations of the Certificate issued in favour of respondent No. 1 under Section 383 of the Act.
2. The certificate by itself does not confer any title on the certificate holder. It 'only enables the certificate holder to give the discharge regarding the debt due to deceased. In these circumstances, the Court below should not have granted the Certificate without directing respondent No. 1 to furnish either a bond with one more surety or sureties, or other sufficient security so as to indemnify certain persons who may be entitled to the whole or any part of those debts and securities in terms of Section 375 of the Act. Therefore, the order is bad even on this count also. He further submitted that in the impugned order the Court below did observe that the matter involves certain issues which are too intricate and difficult to determine any summary proceedings. If it is so, it is a certificate under Section 373(3) read with Section 375 of the Act such a certificate can be granted only on furnishing a bond with surety or security so as to indemnify persons ultimately entitled to. Thus, he contended that the impugned order is liable to be set aside.
5. On the other hand, the learned counsel for the respondents submitted that the present petitioner's claim to be the deceased Nara-yanamma's mother's sister's son and such a person cannot be construed to be a near relative in terms of Section 372(c) of the Act. Regarding the second point, he submitted that while granting Succession Certificate, the Court below did not find that the matter involves any intricate question of law or facts. Therefore, while granting succession certificate no other condition as to furnishing of bond or surety or security, etc. was provided. Thus, he contended that there was no illegality or irregularity in granting the Succession Certificate and it was not a case for revocation of the said Certificate. Therefore, by the impugned order, the Court below rightly dismissed the application filed by the appellant for revocation of the said certificate.
6. In the light of the arguments on both sides, what is to be considered in the first instance in this case is whether the application filed by the respondent No. 1 under Section 372 of the Act for issue of the said Certificate is defective under Section 372(1)(c) of the Act. Another incidental question also arises that is whether the provisions of Section 372 of the Act are mandatory or directory. For the purpose of further discussion, Section 372 of the Act may be extracted as under:
"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, 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 fothe 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 verfying 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.
(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."
Under Section 373 of the Act by the adopting summary procedure, the Judge may grant or refuse to grant the certificate. Section 383 of the Act provides for revocation of the said certificate issued and granted under Section 373 of the Act. It is necessary also for me to extract Section 383 of the Act.
"383. Revocation of certificate:--A certificate granted under this Part may be revoked for any of the following causes, namely:--
(a) that the proceedings to obtain the certificate were defective in substance.
(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;
(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked."
By clauses (a), (b) and (c) of Section 383 of the Act, it is clear that the certificate issued under Section 373 of the Act may be revoked if the proceedings to obtain the certificate is defective in substance or that the certificate was obtained fraudulently by making false suggestion or by concealment from the Court of something material to the case of that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently. In fact, the learned counsel for the appellant relied on these three clauses in support of his contention that the certificate has been obtained on the basis of the proceedings that was defective and it was obtained fraudulently on the basis of the untrue allegations or by concealing the material facts from the Court.
7. From the reading of both the Sections 372 and 373 of the Act, it is clear that the conditions provided under Section 372 of the Act are made mandatory. For non-compliance of the conditions under Section 372, Section 383 of the Act provides for revocation. When non-compliance of the conditions results in revocation of the certificate itself then the only inference that is possible in that the conditions imposed by Section 372 are mandatory and not directory. It is to be seen at this stage itself that this Section 383 of the Act is similar to Section 263 of the Act. Section 263 of the Act also provides for revocation of the grant of probate or letters of administration. In that Section, the Act itself provides certain illustrations to the explanation to that Section. For the purpose of discussion, it is also necessary for me to extract Section 263 of the Act along with illustrations as under:
"263. Revocation or annulment for just cause:--
The grant of probate or letters of administration may be revoked or annulled for just cause.
Explanation :--Just cause shall be deemed to exist where --
(a) the proceedings to obtain the grant were defective in substance;
or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case;
or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind."
8. Illustration (ii) to the Section gives one such instance in what circumstances such probate or letters of administration could be obtained by making false suggestion or by concealing from the Court something material to the case. Illustration (ii) provides that if the grant was made without citing parties is an instance of concealing from the Court certain material facts of the case. But, similar illustration is not given to Section 383 of the Act. But, from reading of both Sections 263 and 383 of the Act, the intendment of the Legislature appears to be quite apparent that if non-furnishing of particulars regarding near relatives is fatal and thus, such condition is mandatory. Therefore, for obtaining Succession Certificate under Section 372 of the Act, the petitioner who has applied for such certificate shall necessarily disclose the near relatives in terms of S. 372 (i) (c) of the Act and this is a mandatory condition. (But, the learned counsel for respondent No. 1 contended that the appellant before this Court was not the near relative in terms of Section 372 (i)(c) of Act. Therefore, there was no suppression of any material fact as alleged by the appellant). In view of the law declared by the Hon"ble Supreme Court in Manil Behari Ghosh, v. Smt. Latika Bala Dassi (sic) (I), interpreting Section 263, Explanation and illustration (i) thereto, that such condition was mandatory, held as under:
"The omission to issue to citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the Court may have 'prima facie' reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of Section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not take any steps in his life time to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testator's unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the Court to revoke the grant".
In this decision, the Hon'ble Supreme Court ultimately held that the omission to issue citations to persons who should have ben apprised of was itself sufficient for revocation in an ordinary course. But, in that case, the said application was filed nearly after 20 years, the Hon'ble Supreme Court has held such revocation was not called for having regard to the inordinate delay in filing that application. In view of this law declared by the Hon'ble Supreme Court also, it is clear that such conditions directing the applicant seeking either probate or Succession Certificate to furnish citations to persons who , would be near relatives, is mandatory. Then the question would be whether the appellant was near relative of the deceased.
9. The learned counsel for the respondent No. 1 submitted that the appellant is the deceased Narayanamma's mother's sister's son, whereas, the respondent No. 1 is the deceased Narayanamma's husband's brother's son and as per the principles of Hindu Law, and hence, respondent No. 1 himself is nearer relative to the deceased Narayanamma. I am of the opinion that there is all the force in this submission of the learned counsel for the respondent No. 1.
10. This is a case of female succession and Section 15 of the Hindu Succession Act that would apply to the case which reads as under:
"15. General rules of succession in the case of female Hindu:--(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 --
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband.
(b) Secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and
(b) any property unherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the husband."
From the reading of Section 15(1)(b) of the Hindu Succession Act, it is clear that the heirs of the husband are one of the heirs entitled to succeed to the property of a female. Respondent No. 1 claims to be the deceased Nara-yanamma's husband's brother's son and accordingly, he is one of the heirs of the husband of the deceased Narayanamma. Under Class II of the Schedule provided to Section 8 of the Hindu Succession Act, Respondent No. 1 falls under category iv of Class II "brother's son.
From this, it follows that respondent No. 1 being' the deceased Narayanamma's husband's brother's son was one of the heirs provided under Class II of the Schedule, Thus, he is the nearest relative of the de-ceassed Narayanamma under Section 15 (1)(b) and (2)(b) read with Class II (iv)-(i) of the Schedule of the Hindu Succession Act. So far as the appellant is concerned, fie does not figure in those categories provided under Section 15 Clause (1) or Class-II of the Schedule. There are only two items in Class-II of the Schedule, providing for the succession towards mother's side of the deceased vide item Nos. viii and ix. Item No.viii provides mother's father and mother's mother as one of the heirs and item No. ix provides mother's brother and mother's sister. But, this item does not provide mother's sister's son.
11. From these provisions of the Hindu Succession Act, the appellant does not figure as one of the relatives of the deceased Narayanamma. The appellant has admitted that he is Narayanamma's mother's sister's son. But, what is provided under item No. ix, Class II of the Schedule, is mother's sister only, but not mother's sister's son. Section 16 of the Hindu Succession Act further provides the order of succession. According to Rule 1 of that Section, persons in earlier entry exclude the other persons in the other entries.
Heirs of the husband's brother's son would be in earlier entry in Class II at item (iv), then mother's sister at item No. ix of the Class II. Whatever it may be, one thing is certain that on the basis of the admitted facts, the appellant is not one of the heirs specified under Class I or Class II of the Schedule provided to Section 8 of the Hindu Succession Act, nor he is one of the heirs to the deceased Narayanamma under Section 15 of the Hindu Succession Act. When the appellant himself is not the relative of the deceased Narayanamma, in not disclosing his name in the application for Succession Certificate, there was no suppression of fact or concealment of any material fact. Therefore, the provisions of Section 372(i)(c) of the Act has not been violated in filing the application for Succession Act by respondent No. 1 and as such, it was not a case for revocation under Section 383 of the Act, and accordingly, by the impugned order the Court below rightly refused to revoke the Succession Certificate that was already granted in favour of respondent No. 1.
12. The second contention of the learned counsel for the appellant is that the Court below should have directed the respondent No. 1 to furnish indemnity bond, or surety or security in terms of Section 373(3) of the Act. From the reading of the order, granting Succession Certificate, dated 3-7-1984 in O.P. No. 351 of 1984, it is clear that the Court below prima facie believed the case of the respondent No. 1 as to his adoption, on the basis of other documents on record. From the said order, it is further clear that while granting, the said certificate, the Court below did not consider the case to be one requiring determination of question of law of fact of intricate nature. Therefore, it did not direct Respondent No. 1 to furnish any indemenity bond, or surety or security. Therefore, I am of the opinion that even not imposing such conditions on respondent No. 1 for issuing the Succession Certificate in favour respondent No. 1, prima facie appears to be legal. Therefore, even this contention of the learned counsel for the appellant merits only for rejection. Even otherwise, in the impugned order, the Court below has considered even other documents like, Voters' list, etc. in order to hold prima facie that respondent No. 1 was the person entitled to Succession Certificate for the limited purpose of discharing the debt of the deceased.
13. More over, it is not disputed by both the parties that the present respondent No. 1 has filed a suit in O.S. No. 75 of 1982 for recovering the alleged debt due to the deceased Narayanamma as per the promissory note alleged to have been executed by the present appellant in favour of the deceased Narayanamma contending that he was the adopted son of deceased Narayanamma. It is also submitted by the counsel on both sides that the said suit being dismissed, the appeal is pending before the District Court at Kurnool.
14. From these circumstances, it is also clear that the suit is pending between the same parties before the competent Court regarding the same subject matter and ultimately whatever the decree that will be passed by the appellate Court in that appeal or in any other appeal, it is that decree that will bind the parties ultimately. The present respondent No. 1 could not be in a position to recover the alleged debt of Rs. 20,000-00 from the present appellant unless he gets the decree from the competent Court in his favour.
15. Therefore, having regard to these facts, I make it clear that the Succession Certificate granted to the respondent No. 1 ultimately would be subject to the determination of the rights of the parties in O.S. No. 75 of 1982. The appeal, therefore, is liable to be dismissed and accordingly, the same is dismissed subject to the above observations. There shall not be any order as to costs.
16. Appeal dismissed.