Gujarat High Court
Hargobind vs Meena on 2 July, 2012
Author: Sonia Gokani
Bench: Sonia Gokani
Gujarat High Court Case Information System
Print
SCA/12257/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12257 of 2009
For
Approval and Signature:
HONOURABLE
MS JUSTICE SONIA GOKANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HARGOBIND
KESHUMAL KRIPALANI - Petitioner(s)
Versus
MEENA
WD/O ANANT KRIPALANI & 1 - Respondent(s)
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Appearance
:
MR
ANAND B GOGIA
for
MR RB GOGIA for MR BB GOGIA for Petitioner
MR NL RAMNANI for
Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
Ms. JUSTICE SONIA GOKANI 2nd July 2012
CAV
JUDGMENT
This petition preferred under Article 227 of the Constitution of India challenges the order passed by the Additional Civil Judge, Gandhidham dated 4th August 2009, below application Exh. 16 given by the petitioners in Civil Misc. Application No. 2/2009.
To understand the disputes between the parties, brief conspectus of the relevant facts will be necessary.
The deceased Shri Virendra Keshumal Kripalani was serving in Kandla Port Trust in Gandhidham. He was also getting pension after his retirement and he posted on 15th September 2007 at Adipur Kutch.
A succession certificate in Civil Misc. Application No. 21/2008 was filed by the present petitioner in the court of Senior Civil Judge Gandhidham. He was unmarried and intestated. His mother Smt. Rukmani Kesumal Kriplani died on 11th August 1996 and thus she predeceased him and his brother Shri Anantram Keshumal Kripalani had died on 24th September 1961.
It is urged that therefore, the deceased as per the Hindu succession Act 1956, left behind the heirs of Class II as no heirs of Class I survived. It is further urged that as per the entry II in class II to Schedule, he has the petitioner-brother and two sisters; except these, he has no other legal heirs entitled to succeed to the properties left by the deceased.
The deceased did not make any will during his life time and therefore, the application for succession certificate was preferred by the present petitioner before the learned Civil Judge, Gandhidham whereby the petitioner was granted succession certificate on 15.12.2008.
Civil Misc. Application No. 21/2008 has been preferred before the very same court to get the said succession certificate cancelled, as also to stay its execution, operation and implementation of its cause of action which is filed by the present respondent were respondent No. 1 is widow of late Shri Ananatrai Keshumal Kripalani [died on 24th September 1961] and respondent No. 2 is a daughter of real brother Anantkumar Kripalani. It is alleged by the respondents in that petition that during the pendency of Civil Misc. Application No. 21/2008, their signature were obtained by presenting false picture and concealing certain facts. The respondents are averred to be entitled to receive 50% share of late Shri Virendra Keshumal Kripalani.
The petitioner preferred an application under Order VII Rule 11 of Code of Civil Procedure for rejection of this Civil Misc. Application No. 2/2009 vide Exh. 16. The same was rejected by the court vide order dated 04.08.2009 on the ground that without recordance of evidence these details can not be decided as the respondents are the nominees of the deceased in service records maintained by the Kandla Port Trust.
Pressing various grounds before this court challenging the legality and propriety of the order impugned, this petition is preferred.
Heard learned advocates for the parties and examined thoroughly the materials on record. The order impugned, if is examined, the court rejected the request of the present petitioner to reject the application preferred by the respondents herein challenging the grant of succession certificate in favour of the petitioners in Civil Misc. Application No. 21/2008 dated 15th December 2008.
The main thrust of arguments of the petitioners is that respondents are not the legal heirs specified in Class I of the schedule under the Hindu Succession Act and the petitioner and his sisters fall under entry 2 of class II of the schedule under the Hindu Succession Act and the respondents herein being the legal heirs of pre-deceased brother Shri Anantrai Keshumal Kripalani, they fall under the respectively entry No. IV of the Class II of schedule to the Hindu Succession Act, and therefore, they would be excluded by these petitioners from succeeding any property, assets of late Shri Virendra Keshumal Kripalani. According to the petitioner no cause of action is disclosed and they have no locus standi to file such an application and therefore, the same was prayed to be rejected under order VII Rule 11(A) Code of Civil Procedure.
It is not in dispute that the respondent No. 2 herein is a nominee of the deceased Shri Virendra Keshumal Kripalani in the record of Kandla Port Trust, where the deceased served till his retirement. The fact is also not in dispute that Civil Misc. Application 21/2008, which resulted into grant of succession certificate in favour of the present petitioners was decided in absence of present respondents. It is allegation of the respondents that playing fraud on the respondents, succession certificate has been obtained by the petitioners and although they were ensured 50% of the share for not contesting the said petition, they have been deprived of their right. Moreover, respondent No. 2 being nominee of the deceased would atleast be entitled to received the assets of the deceased. The Trial Court was of the opinion that there are contentious issues which require trial, and therefore, it rejected the request of petitioner herein and such order is assailed in this petition under Article 227 of the Constitution. It would be apt to reproduce provision of Order VII Rule 11 CPC at this stage, which provides for rejection of plaint on certain grounds :-
"11. Rejection of Plaint - The plaint shall be rejected in the following cases :-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears form the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correct of the valuation or supplying of the requisite stamp paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
The plaint has to be rejected on the ground that it does not disclose of the cause of action and it is abuse of process of court. It is not the case of the petitioner herein that the plaint/petition of Civil Misc. Application No. 2/2009 requires to be rejected on any of the other grounds mention in Rule VII of Order 11 CPC.
Before adverting to the facts of the instant case and further examine the order impugned, law on nomination requires production profitably. It can be noted that the Supreme Court in case of Smt. Sarbati Devi Vs. Smt. Usha Devi, reported in AIR 1984 SC 346, held that a mere nomination made under Section 39 of the Insurance Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured.
The Supreme Court answered similar question in case of Shri Vishin N. Khanchandani Vs. Vidya Lachmandas Khanchandani, reported in 2000 (9) J.T. (SC) 321, while examining the claim arising out of the Government Saving Certificates Act, 1959. Wherein the Supreme Court held that though language and phraseology of Section 6 of the Act is different than the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the provisions regarding avoiding delay and expense in making the payment of the amount of the National Savings Certificates to the nominee of the holder, which has been considered to be beneficial; both for the holder as also for the post office. Any amount paid to the nominee after valid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession.
Thus, the law on nomination has been crystallized by the Apex Court by holding that the nominee is not entitled to receive exclusively the assets of the deceased but, he receives for and on behalf of all the heirs. And the heirs of the deceased are entitled to receive the same as per the law of succession governing them.
In light of these ration, when the order impugned is examined, the trial Court was of the opinion that there are certain contentious questions which require trial. Had it been a question of pure law without any allegation of alleged fraud played by the present petitioner, while obtaining the signatures of the respondents herein in the proceedings of CMA No. 21 of 2008, where the petitioner obtained the succession certificate from the court, question could still be examined differently. This court is of the opinion that it would not be possible to hold that no cause of action arose to reject the plaint at the outset under Order VII Rule 11 CPC by treating the issue raised to be a pure question of law. Nor would it be possible to hold that the trial court erred in not holding that petition disclosed no cause of action. Whether all the heirs of Class II were before the concerned Court and whether there are any other material factual aspects not having come before the Court while allowing Succession Certificate in favour of the petitioner cannot be scrutinized in this petition. Even though relationship of the petitioners with that of respondents, the heirs of the deceased brother is very clear and the law on the subject is also extremely clear and yet, for a limited purpose of examining the allegations of fraud raised by the respondents herein, the court shall have to adjudicate the dispute and outright rejection of plaint under Rule VII Rule 11 CPC; if is not acceded to, this court do not deem it appropriate to interfere in a petition under Article 227 of the Constitution of India. However, while rejecting this petition, it is being specified that the issue being in the realm of law, the court ought to proceed with the final hearing of Civil Misc. Application No. 2 of 2009 as expeditiously as possible.
With these observations, this petition is dismissed. Rule is discharged. Interim relief granted earlier stands vacated with no order as to costs.
(Ms. Sonia Gokani, J.) Dharmendra/pt* Top