Kerala High Court
V.K. Kamalam vs Panchali Amma And Ors. on 28 July, 1987
Equivalent citations: AIR1988KER265, AIR 1988 KERALA 265, (1987) KER LJ 1202
ORDER M.M. Pareed Pillay, J.
1. Revision petitioner is the petitioner in O. P. No. 64 of 1977 of the Sub-Court, Palghat. She filed the petition under Section 372 of the Indian Succession Act for the grant of a Succession Certificate enabling her to collect the family pension, death cum-retirement gratuity, balance of provident fund and the amount in the S. B. account due to the estate of deceased V.K. Raman Nair. The Sub-Judge dismissed the petition holding that the petitioner has not succeeded in establishing the genuineness of Ext. A37 Will Petitioner filed C.M.A. 57 of 1981 before the District Court, Palghat. The District Judge confirmed the order of the Sub-Judge and dismissed the appeal.
2. Petitioner is the niece of deceased V.K. Raman Nair. Respondents 1 to 3 are the sisters of the deceased. Second respondent is the mother of the petitioner. Of the respondents the 4th respondent alone contested the proceedings. Claiming herself to be the wife of Raman Nair disputed the genuineness of the Will.
3. As the genuineness of the Will is disputed the burden is squarely upon the propounder of the Will to prove it. Petitioner's contention is that Ext. A-37 Will is the last testament of Raman Nair and in view of the recitals in it she alone is entitled to the grant of succession certificate. P.Ws. 2 and 3 were examined to prove the Will. They claimed to be the attestors. Though Ext. A-37 contained the address of P.Ws. 2 and 3 their signatures are singularly absent in it. Their evidence that they signed Ext. A-37 as attestors stands self condemned.
4. Suspicious circumstances exist regarding the execution of the Will. It is in evidence that Raman Nair was admitted in the Seventh Day Adventist Hospital, Ottappalam on 4-6-1976 and he expired on 8-6-1976. Ext. A-34 telegram dated 22-5-1976 received by the petitioner would show that Raman Nair was seriously ill. It is the case of the petitioner that her husband went to Andhra Pradesh and brought Raman Nair to his native place. The doctor who treated Raman Nair was not examined before the Court. There is no acceptable evidence to hold that Raman Nair was in a sound disposing state of mind on the day on which Ext. A-37 was alleged to have been executed, viz. 29-5-1976.
5. It is in evidence that the petitioner opposed the application for heirship certificate filed by the 4th respondent before the Tahsildar, Palghat and she in turn applied for a certificate. The file kept with the Taluk Office was produced before the Sub-Court and the relevant documents were marked. Before the Tahsildar the petitioner failed to mention about the existence of Ext A-37 Will. Failure on the part of the petitioner to make any reference to Ext. A-37 Will before the Tahsildar is sufficient to discredit her case. Sub-Judge as well as the District Judge have analysed the evidence correctly and held against the petitioner.
6. Counsel for the petitioner next contended that there was no necessity, at all for the Courts below to consider the status of the 4th respondent as the wife of the testator and therefore that finding should be set aside. Counsel relied on Ammini Ammal v. Lakshmi, AIR 1957 Ker 90 and submitted that where the Courts were concerned with the grant of succession certificate on the basis of the evidence produced before it there was no necessity at all for the Courts to decide whether the 4th respondent is the wife of the testator or not. Counsel urged that the finding regarding the status of the 4th respondent as the wife of the testator has to be set aside on the ground that it was not a germane issue in the proceedings for the grant of Succession Certificate.
7. There is no basis for the apprehension of the petitioner that merely because the Court held that the4th respondent is the wife of the testator it would operate as res judicata in subsequent proceedings. In an application filed under Section 372 of the Indian Succession Act the contesting parties are not entitled to raise contentions regarding title to the property or such other complicated questions. Of course the Court has to ascertain whether the person to whom it grants certificate has prima facie right to it Section 373 of the Act provides for the procedure to be followed by the Court for the grant of certificate when it receives an application for succession certificate under Section 372 of the Act. Where the Court is satisfied that there is ground for entertaining an application it shall issue notice to the opposite party and proceed to decide in a summary manner the right to the certificate. The procedure laid down by Section 373 of the Act is summary in nature and it contemplates a summary enquiry into the matter of the application after service of notice to the opposite side. Lengthy and detailed investigation is not contemplated under the Section. Of course, the nature of the enquiry must depend upon the circumstances of the case. In the summary enquiry the Court has only to ascertain as to who is entitled to the certificate. That being the limited purpose of the enquiry there is no basis for the apprehension of the petitioner that the finding of the Court that the 4th respondent is the wife of the testator would operate as res judicata in subsequent litigations.
8. Effect of the decision under Part 10 of the Act and the liability of the holder of the certificate thereunder are specifically made clear under Section 387 of the Act. The proceedings for the grant of succession certificate come under Part 10 of the Act. Section 387 envisages that no decision under Part 10 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 proceeding 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 debt or security or any interest or dividend on any security to account therefor to the person lawfully entitled thereto. The above section makes it abundantly clear that the proceedings under Part 10 of the Act is of a summary nature and as such the decision of a Court under this part does not finally adjudicate the rights between the parties. As Section 387 clearly and specifically states that no decision taken by a Court in proceedings relating to grant of succession certificate upon any question of right between the parties shall not be a bar to the trial of the same question in any suit or any other proceedings between the same parties it has to be necessarily held that trial of the same question in any appropriate civil suit is not barred by res judicata. The words in "any other proceedings" used in Section 387 positively mean the proceedings not under the Indian Succession Act, but under any other statute. The Indian Succession Act, being a special statute, has made it clear as per Section 387 that parties can file separate suit challenging any decision arrived at under the Act.
9. The principles underlying Section 11 of the Code of Civil Procedure cannot be considered to be satisfied by a decision rendered in succession certificate proceedings. While instituting proceedings under the Succession Act for grant of succession certificate the parties are concerned only with regard to the competency of the parties to the entitlement of the certificate. The Courts while passing orders under the Succession Act in summary proceedings are not competent to grant the relief which can be claimed by the parties in a regular suit.
10. In a subsequent suit either filed by the 4th respondent for a declaration that she is the wife of late V.K. Raman Nair or in a suit filed by the petitioner for a contrary declaration the findings in the present proceedings cannot operate as res judicata. That being the position of law there is no basis for the apprehension of the petitioner that the findings of the Courts regarding the status of the 4th respondent as the wife of V.K. Raman Nair will be detrimental to her in possible future civil litigations.
The Civil Revision Petition is dismissed. There is no order as to costs.