Madhya Pradesh High Court
Sardar Shri Amarjeet Singh vs Smt. Rajinder Kour on 20 June, 2017
1 W.P. No. 15389/2013
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 15389/2013
Sardar Shree Amarjeet Singh & Another
Vs.
Smt. Rajinder Kaur
Shri D.S. Choudhary, learned counsel for the
petitioners.
Shri P.S. Pandey, learned counsel for the respondent.
ORDER
(20.06.2017) The petitioners have filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 18.07.2013 passed by 1st Civil Judge Class-I, Jabalpur in MJC No. 2/2013.
2. The petitioners are the real brother of one Smt. Dharamjeet Kaur, The husband of Smt. Dharamjeet Kaur died on 20.10.2001. On 22.04.2002 Smt. Dharamjeet Kaur 2 W.P. No. 15389/2013 has executed a Will in favour of the petitioners and she had died on 04.05.2002 and at the time of death she was issue- less. After her death, the petitioners had filed an application before the 1st Civil Judge Class-I, Jabalpur for issuance of succession certificate. The trial Court vide order dated 10.11.2003 has granted the said succession in favour of the petitioners. One Rajinder Kaur who is the daughter of one Koushalya Kaur who is not related to the petitioners had filed an application under Section 383 of the Indian Succession Act (hereinafter in short referred to as 'the Act') for revocation of the succession certificate granted in favour of the petitioners along with an application for condonation of delay under Section 5 of the Limitation Act. After receiving the summons, the petitioners have filed reply to the said application, however, the trial Court vide impugned order dated 18.07.2013 has allowed the application and condoned the delay of 7 years. Being aggrieved by that order the petitioners have filed the present petition. 3 W.P. No. 15389/2013
3. Learned counsel appearing on behalf of the petitioners argues that the trial Court has erred in allowing the application preferred by the respondents under Section 5 of the limitation Act. He submits that no sufficient grounds have been made out by the respondents for condoning the delay. He submits that the respondents was within the knowledge of pendency of the case related to issuance of succession certificate in favour of the petitioners and, therefore, the trial Court has erred in condoning the delay. He further argues that the trial Court has erred in holding that the provisions of limitation Act would not be applicable to the Succession Act. He submits that even though under the Indian Succession Act no period of limitation has been prescribed under Section 383 of the Act. However, if no limitation has been prescribed under Section 383 of the Act, then Article 137 of the Limitation Act would be applicable, which prescribed the period of limitation as 3 years and this provision of law has been ignored by the trial Court by condoning the delay. 4 W.P. No. 15389/2013
4. On the other hand, learned counsel appearing on behalf of the respondents supports the order passed by the trial Court and submits that the trial Court has rightly condoned the delay. He submits that no period of limitation has been prescribed under Section 383 of the Act and, therefore, the trial Court has rightly allowed the application preferred by the respondents. He further relied on the judgment passed by this Court in the case of Ramadevi Vs. Sayra Bai, reported in 1990 (1) MPWN
162.
5. I have heard learned counsel for the parties and perused the record as well as the order passed by the trial Court. The Section 383 of the Act provides for revocation of succession certificate. The Section 383 reads as under:-
"383. Revocation of the 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 5 W.P. No. 15389/2013 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."
As per the said Section, succession certificate can be revoked on the grounds stated in the said Section. Under this Section no period of limitation has been prescribed.
6. The Article 137 of the Limitation Act provides that any other application for which no period of limitation is provided elsewhere, then the period of limitation would be 3 years when the right to apply at-least. Thus, as per this Article 137 where no period of limitation has been prescribed, then the application has to be filed within a 6 W.P. No. 15389/2013 period of 3 years.
7. In the present case, the succession certificate was granted in favour of the petitioners on 10.11.2003 and the application for revocation of said succession certificate was filed by the respondents on 23.01.2013 i.e. almost after a period of 8 years and 10 months. From perusal of the record it reveals that the respondents was within the knowledge of the pendency of the said application because she has participated in other proceedings which are pending before the trial Court. Thus, the trial Court has erred in condoning the delay of 8 years 10 months which is caused by the respondents in filing the application under Section 383 of the Act. So far as, the judgment relied on by the trial Court in the case of Rama Devi (Supra) is concerned, the judgment is per incurium as in that judgment the learned Single Judge has ignored the Article 137 of the Limitation Act. Learned counsel for the petitioners also relied on the judgment passed by the Apex Court in the case of The Kerala State Electricity Board, 7 W.P. No. 15389/2013 Trivandrum Vs. T. P. Kunhaliumma, reported in AIR 1977 Supreme Court 282, in which the Apex Court has held that the Article 137 will apply to any petition or application filed under any Act to a Civil Court. The para 18 of the said judgment reads as under:-
"18. The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act 1963 compared with Article 181 of the 1908 Limitation Act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words "any other application" under Article137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the court that he had sufficient cause for 8 W.P. No. 15389/2013 not preferring the appeal or making the application during such period."
Thus, as per the said judgment, the Article 137 has not confined to applications contemplated by or under the Code of Civil Procedure but it would apply to any application submitted under any Act to a Civil Court.
8. Thus, in the present case, the Article 137 would apply and the trial Court has committed an error in passing the impugned order and condoning the delay. Accordingly the writ petition is allowed. The impugned order dated 18.07.2013 passed by the trial Court is hereby set aside.
(Ms.Vandana Kasrekar) Judge ashish