Madhya Pradesh High Court
Praveen Tiwari (Sharma) vs Smt. Anita Upadhyay on 7 March, 2019
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HIGH COURT OF MADHYA PRADESH ; BENCH AT INDORE
M.A.No. 874/2018
(Praveen Tiwari Vs. Smt. Anita Upadhyay)
Indore, Dated 7.03.2019
Shri Mukesh Porwal, learned counsel for the appellant.
Shri V.P.Saraf, learned Senior Counsel with Shri
Brajendra Mishra, counsel for the respondent.
This Miscellaneous Appeal under section 384 of Indian Succession Act (For short 'the Act') is against rejection of application under section 383 for revocation of Succession Certificate granted to respondent under section 372 of the Act vide order dated 2.1.2018 passed in Probate case No.9/2016 by VI ADJ, Indore.
2. Facts relevant and necessary for disposal of this appeal lie in narrow compass. Respondent filed an application under section 372 of the Act, seeking succession certificate in respect of plot No. 439/FH, Scheme No.54, Indore and other movable properties owned and possessed by late Vasudeo Sharma S/o Jwala Prasad Sharma inter alia contending that respondent being the only child of late Vasudeo Sharma is sole successor to the said property. It appears that only public at large was noticed through newspaper publication in 'Dainik Indore Samachar Patra' dated 22.9.2011. There was no response to the said notice. Accordingly, the succession certificate was issued on 23.4.2012 in favour of the respondent.
3. Appellant filed an application for revocation of succession certificate on 24.8.2012 inter alia pleading that he is son of late Vasudeo Sharma and lived in the house constructed on the aforesaid plot No.439 with his father, late Vasudeo Sharma till his last breath.
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4. IDA, Indore vide communication dated 7713/two/property/2011 dated 23.9.2011 had required the respondent and appellant to obtain succession certificate in respect of the suit property as there is a conflict of interest and rival claims over the suit property. Respondent deliberately suppressed the aforesaid letter in her application under section 372 of the Act and also chose not to file the said letter in the proceedings before the court below for obtaining succession certificate. Besides, the respondent even otherwise despite full knowledge of existence of house over plot No. 439 and occupation of the appellant on the said house described the property as land (Hkw[kaM). Under the circumstances, and in all fairness, appellant ought to have been arrayed as one of the respondent in the application filed under section 372 of the Act, as contemplated under section 372(1)(c) of the Act. That was not done. Respondent consciously suppressed the material facts in the application and made incorrect declaration in the verification clause as well as affidavit annexed with the application. That apart, in respect of agricultural land situated in village Jhou, Tahsil Bhitarwar, District Gwalior there was a contest between the appellant and respondent as regards right of mutation as both claimed succession being heirs of late Vasudeo Sharma. However, the proceedings stood terminated at the stage of Commissioner's Appeal.
5. On merit, learned counsel also filed documents viz. marksheet, voter ID card, ration-card, etc. to demonstrate that appellant is son of late Vasudeo Sharma. Appellant also 3 HIGH COURT OF MADHYA PRADESH ; BENCH AT INDORE M.A.No. 874/2018 (Praveen Tiwari Vs. Smt. Anita Upadhyay) pleaded that respondent is not the natural successor of late Vasudeo Sharma as she was given on adoption to Santosh Sharma, the younger brother of late Vasudeo Sharma when she was child in the year 1985. In adulthood, she was married and now she is living away with her family. Appellant also pleaded that after death of Vasudeo Sharma, he has performed his last rites and post death ceremonies were also performed by him in the same house.
6. Shri Saraf, learned Senior Counsel for the respondent emphatically denies that appellant is son of late Vasudeo Sharma. There is no evidence that he was born out of wedlock of late Vasudeo Sharma and Kamladevi. He had made mutually inconsistent and contradictory stand in that behalf, before the court below and before the revenue court, Gwalior, besides in the trial court, Dabra (supra). At some places, he has claimed to have been given on adoption by late Vasudeo Sharma. As such, paternity of the appellant is shrouded with suspicion. In any case, appellant has lost from civil court(supra) where his claim is rejected to be son of Vasudeo Sharma. The aforesaid facts have been taken into consideration by the court below while rejecting the application under section 383 of the Act. The respondent is only child of late Vasudeo Sharma, who has succeeded to the movable and immovable properties left by him by way of natural succession. As such, there is no illegality in the order impugned. Accordingly, learned Senior Counsel prays for dismissal of the Appeal.
7. Heard.
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8. It appears that trial court while deciding the application, has dealt with the contentions of the parties on merit as if it exercised the jurisdiction under section 372 of the Act, adjudicating upon the entitlement of certificate of succession by parties, instead of recording its satisfaction whether the certificate granted under section 372 of the Act is liable for revocation due to any of the contingencies/circumstances under sub-clause (a) to (e) of section 383 of the Act.
9. The approach of the trial court as such, is at variance to the scope of jurisdiction under section 383 of the Act.
At this stage, it is appropriate to quote section 383(b) of the Act, which reads as under :-
"Sec. 383 Revocation of certificate
(b) - that the certificate was obtained fraudulently by making of a false suggestion, or by the concealment from the Court of something material to the case."
10. The sole question that arises for consideration is as follows -
"whether the trial court was justified in allowing the application under section 372 of Indian Succession Act in absence of notice and hearing to the appellant in the obtaining facts and circumstances."
11. Though there is a serious contest between the parties as regards their paternity against each other, this Court is not oblivious of the finding of the trial court in civil suit No.4A/2013 decided on 27.2.2017 wherein the issue of 5 HIGH COURT OF MADHYA PRADESH ; BENCH AT INDORE M.A.No. 874/2018 (Praveen Tiwari Vs. Smt. Anita Upadhyay) paternity of the appellant based on the claim of son of late Vasudeo Sharma had been negated. However, the appeal arising therefrom i.e. F.A.No.15/2017 is pending consideration before II ADJ, Dabra, Gwalior. Nevertheless, the court below in all fairness, ought to have considered whether the certificate was obtained by concealment from the court of something material to the case, instead of justifying the issuance of certificate on merits and jumping to the conclusion with an evasive finding that there was no concealment from the Court of something material to the case, particularly, in the context of the letter of IDA dated 23.9.2011 on record. Hence, there appears to be patent jurisdictional error in the impugned order. In the opinion of this court, the appellant should have been added as a party by the respondent in the matter of claim for succession certificate in respect of house/plot No. 439/FH, Scheme No.54, Indore and other movable properties. Hence, there was concealment from the Court something material to the case in the proceedings initiated under section 372 of the Act.
12. Consequently, the impugned order is set aside.
13. Now this Court is required to consider whether a direction can be given to the trial court for issuance of certificate of succession in suppression of certificate already granted to the respondent. Undisputedly, F.A.No. 15/2017 is pending consideration before II ADJ, Dabra, district Gwalior having direct bearing on right of succession of either or both the parties. Hence, at this stage, no direction in the context of issuance of certificate can be issued. Moreso, this court does 6 HIGH COURT OF MADHYA PRADESH ; BENCH AT INDORE M.A.No. 874/2018 (Praveen Tiwari Vs. Smt. Anita Upadhyay) not intend to set aside the order of the trial court granting succession under section 372 of the Act but, set it at naught and to do complete justice between the parties, it is hereby ordered that succession to house No. 439/FH and movable and immovable properties of late Vasudeo Sharma shall be subject to final decision in F.A.No. 15/2017(supra) and certificate dated 23.4.2012 shall not be pressed into service by the respondent till decision of the aforesaid appeal.
Appeal stands allowed with the aforesaid direction. No order as to costs.
(Rohit Arya) Judge MUKTA KAUSHAL 2019.03.11 11:47:17 -07'00' 7 HIGH COURT OF MADHYA PRADESH ; BENCH AT INDORE M.A.No. 874/2018 (Praveen Tiwari Vs. Smt. Anita Upadhyay)