Madras High Court
P. Meenambal vs R. Rajeswari And Ors. on 30 April, 1997
Equivalent citations: (1997)2MLJ510
ORDER S.S. Subramani, J.
1. The fourth respondent in Succession O.P. No. 49 of 1988 on the file of the Principal/Subordinate Judge, Madurai is the revision petitioner.
2. Succession Certificate application was filed by the first respondent herein regarding some deposits in the State Bank of Mysore, Madurai in S.B. Account No. 688 which stood in the name of late Shenbagam Servai and the petitioner herein. By an Order, the Subordinate Court, found that the revision petitioner is not entitled to collect the amount she being not a legal heir of the deceased. It has further found that either or survivor account is not a gift in favour of the survivor, but only a right to collect the amount covered by the receipt. It is the case of the petitioner that the amount that is deposited in the name of the deceased and herself are her earnings and even the deceased did not have a right over the same. It is her case that the above is not a part of the estate of the deceased. The Subordinate Court rejected the objection and granted the certificate. The matter was taken in C.M.A. No. 60 of 1990 before the First Additional District Judge, Madurai, who also did not think that any ground has been made out to set aside the order. The appeal was dismissed.
3. Aggrieved by the concurrent Judgment, the C.R.P. is filed.
4. I do not think the petitioner has a right to challenge the concurrent judgment since it is only a summary proceeding under the Indian Succession Act. Under Section 373(3) of the Indian Succession Act, the procedure before court is provided. In fact, the proceedings under the Indian Succession Act for the issuance of a Succession Certificate concerns only with the prima facie, right to collect the amount. The intricate question of title is barred from being decided in that proceeding. Sub-sections (3) and (4) of Section 373 of the Indian Succession Act read thus:
(3) If the Judge cannot decide the right to the Certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding he may nevertheless grant a certificate to the applicant if he appears to be the person having 'prima facie' the best title thereto.
(4) When there are more applicants than one for a certificate and it appears to the Judge that more than one of such applicants are interested in the estate of deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.
5. The learned Counsel for the petitioner submitted that if the decision is allowed to stand, that will have an adverse effect on the rights of the petitioner and the decision will be res judicata. The learned Counsel for the petitioner submitted that by going by the prolonged procedure, adopted by the lower Court minutely in deciding the case, any subsequent decision on the same question will be barred. It is here the learned Counsel for the petitioner has gone wrong. In fact, the trial Court should not have gone through such a detailed procedure when the Act itself contemplates only a summary procedure and to hold a prima facie title. The intricate question of the rival claims is barred from being decided in proceeding under the Act for the issuance of Succession Certificate.
6. Under Section 387 of the Indian Succession Act, a right of suit is also provided. The Section reads thus:
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 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.
Commenting on the same, in Sanjiva Row's 'Indian Succession Act' - 6th Edition (1992), at page 917, learned Author has said thus:
Succession proceedings are summary proceedings and decision arrived at in the summary proceeding for grant of certificate does not operate as res judicata in subsequent suit for adjudication of rights between parties. A succession certificate granted under the Indian Succession Act gives a valid quittance to the debtor, who thereafter is not interested is to who is the rightful owner to claim the debt. If a wrongful owner obtains a succession certificate and claims the debt and is paid, the only remedy for the rightful owner is to file a suit against the wrongful owner obtaining payment and litigate. The language of this Section also makes it clear that the proceedings have not been considered to be a suit, nor are they treated as a suit, so that Order 23, Rule 1, Civil Procedure Code, which is applicable to suits, is not applicable to these proceedings, hence no permission of court is necessary for withdrawing proceedings.
It further reads, thus:
The order issuing the succession certificate is final so far as it relates to a proceeding under the Act and regarding matters under the Act, but because of the provisions of Section 387 of that Act, the order granting succession certificate can be questioned by a suit in a competent Civil Court. In Mst. Jiwandi Bai's case it has been held that the decision of a Court under the Succession Act is a summary one and it does not stand in the way of the trial of the same question in any regular suit.
In a Full Bench decision in the case of Brojendra Sundar v. Niladrinath A.I.R. 1929 Cal. 661 Their Lordships held, thus:
In the proceedings under Section 373 it is not open to the Judge to allow the exact character of the applicant's claim to be litigated. He has only to see if there is ground for entertaining the application.
At page 663, Their Lordships have went on to say that, An examination of this section leads me to the conclusion that the legislature contemplated first that the District Judge should be satisfied not that a succession certificate will be necessary or exigible under Section 214 or otherwise, but that there is "ground for entertaining the application." That is to say, that it is a serious and sensible application by a person who desires to make a claim in the representative character which he seeks. Clauses 2 and 3 contemplate that the Judge shall endeavour to determine whether applicant is the proper person or a proper person to be clothed with the representative character and it is made abundantly clear that any intricate questions of fact or law bearing upon this question may be solved in a summary manner. The legislative by exacting fees and by making provision for the requirement of a bond would seem to have taken away all temptation to apply for a succession certificate save in cases where a succession certificate will enable the grantee to prosecute a claim as a representative of the deceased with greater advantage than he would have been able to do in the absence of this representative right. Section 387 proves that 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 proceeding between the same parties. In my opinion nothing could be more misguided, unnecessary and objectionable than that questions of the exact character of an applicant's claim should be litigated upon an application for a succession certificate and in the absence of the party or authority against whom the claim is made.
In another Division Bench decision of the Calcutta High Court in the case of Ekbal Ahmed v. Mohammad Maqsood A.I.R. 1945 Cal. 384 their Lordships held, thus:
The Courts are not really concerned with any question of title in a proceeding for Succession Certificate.
In a decision in the case of Indramani v. Hema Dibya it is held, thus:
Section 387 enables an unsuccessful party to a proceeding for succession certificate to file a regular suit in a competent Civil Court on the same question, and so the decision of that court on that matter may ultimately affect the succession certificate already granted in favour of some other person. The Order issuing the succession certificate is final so far as it relates to a proceeding under the Succession Act and regarding matters under that Act, but because of the provisions of Section 387, the said order can be questioned by a suit in a competent Civil Court. Therefore, merely because an unsuccessful party in a matter relating to succession certificate did not prefer any appeal under Section 384 of the Act, it cannot be said that Section 387 on that account becomes inoperative.
In another decision in the case of V.K. Kamalam v. Panchali Amma the learned Judge held thus:
There is no basis for the apprehension of the petitioner that merely because the Court held that the 4th 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 373 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 whom 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.
7. In view of the above decisions and also in view of the declaration of law, it cannot be doubted a finding on any question while deciding to issue Succession Certificate is not res judicata, when final adjudication is not contemplated.
8. I have already referred to Section 373 of the Act. Section 375 contemplated requisition of a security from the person in whose favour the certificate is issued. If there are rival claims, and when the Court is not in a position to decide the matter conclusively after holding a prima facie title, the court can direct that person to furnish security. The bond executed in favour of court, could be assigned in favour of a subsequent claimant, on his satisfying the court that the amount collected on the basis of the earlier certificate was not proper and on the basis of the bond, he may be permitted to sue the person. The court is also empowered to revoke a certificate already granted under Section 383. Section 383(e) provides that consequent to a decree of a competent court declaring the rights of parties, the certificate already granted could be revoked.
9. When such safeguards are provided, it is clear that a summary decision while granting the succession certificate will not bar the litigation between the same parties regarding the same matter. I may also say that when the succession applications were filed and the courts below take such elaborate enquiry, it makes an impression that the decision arrived concludes the right of the parties. If only the procedure contemplated under the Indian Succession Act in Part X is understood and properly applied by the courts below, much time and energy need not be wasted and the time spent on in elaborate enquiry by taking voluminous evidence could be spent for other cases.
10. In this case, both the courts below have held that prima facie the petitioner in the succession certificate application is entitled to collect the asset. It is only for the purpose of collection, the certificate is issued. The title is not decided. I agree with the finding of the courts below that the petitioner in the O.P. has a preferential claim to collect the amount. The title to the amount, whether the petitioner herein is the absolute owner or whether she has a better claim over the amount are all to be decided in a properly instituted suit and the finding herein will not be a bar.
11. With the above observations, the C.R.P. is dismissed. Consequently, the C.M.P. No. 1213 of 1992 is dismissed.