Punjab-Haryana High Court
Smt. Darshana Kumari vs Smt. Satya Wati on 22 September, 1999
Equivalent citations: (2000)124PLR173
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 23.8.1983 passed by the court of the Addl. Distt. Judge, Ludhiana, who set aside the order dated 13.11.1982 passed by the court of Sub Judge, 1st Class, Ludhiana, who allowed the objections of Darshana Kumari and orders for the grant of the succession certificate in her favour with regard to the estate of Som Parkash.
2. The brief facts of the case are that Satya Wati and Arti Parkash alias Jagat Pal, claiming themselves to the widow and son of Som Parkash filed an application Under Section 372 of the Indian Succession Act(here in after called 'the Act') for the grant of the Succession certificate, with respect to the estate of Som Parkash on the basis of natural heir-ship. The notice was given to the general public. During the pendency of the proceedings before the trial court, Darshna Kumari filed an application under Order 1 Rule 10, CPC, requesting that she be impleaded as a party to the proceedings. It was urged by her that the relations between the Som Parkash and Satya Wati were very much strained. So much so, Satya Wati filed an application Under Section 488, Cr.P.C, for the grant of maintenance against her husband and that maintenance was being paid to Sayta Wati till the death of Som Parkash. Arti Parkash alias Jagat Pal throughout out lived with his mother and never resided with his father Som Parkash. In fact, they resided with Girdhari Lai, who is father of Satya Wati. There was no love or relationship between the applicants and the deceased. The applicants never served Som Parkash during his life time. Darshna Kumari is the daughter of the brother of the deceased. The father of Darshna Kumari had good relations with his brother. She served Som Parkash throughout his life. Out of love and affection rendered by her to the deceased, Som Parkash executed a valid will dated 30.11.1978 in her favour bequeathing his entire moveable and immovable assets in favour of Darshna Kumari and as such, she is the sole heir and is entitled to inherit the estate of the deceased Som Parkash. The application, which was moved by Darshna Kumari under Order 1 Rule 10, CPC, was treated as objections to the Succession application. The notice of the application/objections was given to Satya Wati and her son Arti Parkash alias Jagat Pal, who filed the reply and denied the allegations. They also denied the fectum of the execution of the Will in favour of Darshna Kumari. They pleaded that if there is any will, the same is forged. In case, Darshna Kumari wants to base her claim on the basis of the Will, she can obtain a probate first and in the absence of the probate she has no fight to contest the petition Under Section 322 of the Act,
3. From the pleadings of the parties, the learned trial Court framed the following issues on 4.8.1980:-
"1) Whether Som Parkash deceased had executed a genuine and valid will in favour of the petitioners on 30.11.78 as alleged? OP Objectors.
2) Whether the petitioners had no right to contest Hie claim on the basis of Will without obtaining a probate to authenticate the will as alleged? OP-Respondent/applicant.
3) Relief."
4. The parties led oral and documentary evidence in support of their case and the trial court vide order dated 13.11.1982 allowed the objections of Darshna Kumari and the main petition Under Section 372 of the Act was dismissed. The trial court also made the observation that Darshna Kumari shall be at liberty to file a fresh application for the issuance of the Succession Certificate in her name according to law.
5. Aggrieved by the order of the trial court, Satya Wati and her son filed an appeal before the Addl. Distt. Judge, Ludhiana, who set aside the order of the trial court and allowed the petition Under Section 372 of the Act by holding that Satya Wati and Arti Parkash alias Jagat pal are entitled to grant of Succession Certificate and it may be granted to them by the trial court in accordance with law.
6. Aggrieved by the order dated 23.8.1983, passed by the Addl. Distt. Judge, Ludhiana, the present revision.
7. I have heard Mr. Malkiat Singh, counsel for the petitioner and Shri Ravinder Chopra, Counsel for the respondents and am of the opinion that the procedure adopted by the courts below is totally wrong. The trial court committed a patent illegality when it disposed of the objections like a suit. The case set up by Satya Wati and her son in their petition Under Section 372 of the Act was that Som Parkash died without any Will. They being the widow and son of the deceased are entitled to inherit the estate of the deceased whereas the case of Darshna Kumari was that Som Parkash during his life time out of love and affection executed a valid will in her favour and on the basis of that Will she is entitled to inherit the estate of Som Parkash. Also, it is the case of Darshna Kumari that there was no love and affection between Satya Wati and her husband. Rather, the proceedings went Under Section 488, Cr.P.C. Satya Wati used to be paid the maintenance till the death of the deceased. The son also lived with his mother who used to reside in the house of her parents. According to Darshna Kumari, she had been serving her uncle and that is the reason Som Parkash was very happy with her services. She is also a relation by blood and, in these circumstances, a valid Will has been executed in her favour. We all know and it is a basic principle of law that the proceedings Under Section 372 of the Act are in the nature of summary proceedings. In such like proceedings, a restraint should have always been shown by the court to stay its hands or adjudicate the question of title or right to the property. The best and the proper procedure in such like contentious disputes is to refer the parties to the civil court which alone is competent to decide regarding the title and right to succeed. The approach of the trial court in this case was totally erroneous. Similarly, the appellate court ought to have set aside the findings of the trial court on the short ground that since complicated question of law is involved, therefore, the parties should be relegated to the remedy of filing a civil suit. Both the courts below have not adopted a correct procedure. They adjudicated the genuineness or otherwise of the Will in the summary proceedings. Therefore, in the opinion of this court, both these orders are liable to be set aside and directions are given to the parties to go to the civil court if they are interested to get an adjudication regarding the real entitlement of the estate of Som Parkash.
8. The learned counsel for Satya Wati and her son vehemently submitted that the objections filed by Darshna Kumari could be adjudicated by the-courts seized of the proceedings Under Section 372 of the Act because those proceedings are also pending before a civil court and, moreover, in this case, the adjudication, has already been made by one court in one way and the other court in the other way. Therefore, the High Court should not, at this stage, relegate the parties to the civil court for the adjudication of the title. The counsel even submitted that it was within the competency of the court below to give a finding whether the Will is a genuine or not and the first appellate court has rightly said that the Will is not genuine and it is surrounded with suspicious circumstances, therefore, the Succession Certificate should be granted to Satya Wati and her son. The counsel also submitted that on the basis of the strength of the findings dated 23.8.1983 given by the court of Addl. Distt. Judge, Ludhiana, Satya Wati and her son have already withdrawn the amount and, in these circumstances, it will be a futile attempt to again refer the matter to the civil court for the adjudication of the rights of the parties.
9. I am not convinced with the arguments of the counsel for the respondents. I am concerned with the procedure adopted by the courts below. I have already stated above that such like proceedings are summary in nature. Complicated questions of law cannot be adjudicated in these proceedings. In this case, the defence has been taken not for the sake of defence. The circumstances in this case require whether the Will propounded by Darshna Kumari could be executed by the deceased or not and whether Satya Wati and her son Arti Parkash alias Jagat Pal could be disinherited by Som Parkash or not. When the entire approach of the courts below is illegal, this court will certainly strike down both the order. Section 373 of the Act clearly gives a discretion to the court to proceed to decide the petition Under Section 372 of the Act in a summary manner. In this regard, support can also be drawn from Sant Ram and Anr. v. General Public and Ors., (1966)68 P.L.R. 396, wherein it was held as under:-
"Held, that, the use of the word, "may" in section 273(3) of the India Succession Act implies a discretion, and if the court feels that the questions of title involved are not capable of decision in summary manner proceedings under the Act, he is permitted to say so and to leave the parties to establish their rights in a regular suit."
10. Resultantly, the revision petition is hereby allowed. Both the orders of the courts below dated 13.11.1982 passed by the Sub Judge, 1st Class, Ludhiana and dated 23.8.1983 passed by the Addl. Distt. Judge, Ludhiana, are hereby set aside and the petition Under Section 372 of the Act is hereby dismissed with the observations that it will always be open to the contesting parties to go the civil court for the adjudication of their rights, title and interest, if any, with respect of the estate of Som Parkash. No costs.