Andhra HC (Pre-Telangana)
Sreemanthula Kesavachari (Died) Per ... vs Yayyavuru Vallama (Died) Per L.Rs. on 6 September, 2007
Equivalent citations: AIR2008AP74, 2007(6)ALD796, 2008(1)ALT1, AIR 2008 ANDHRA PRADESH 74, 2008 (3) ALL LJ NOC 604, 2008 (3) AIR KAR R 372, 2008 A I H C (NOC) 298 (AP), (2008) 1 HINDULR 99, (2007) 6 ANDHLD 796, (2008) 1 ICC 616, (2008) 1 ANDH LT 1
ORDER G. Yethirajulu, J.
1. This Revision Petition filed by the petitioner in E.P.No.21 of 2003 on the file of the learned Junior Civil Judge, Venkatagiri.
2. The petitioner's husband by name Kesavachari filed O.S.No.46 of 1996 against the first respondent for recovery of the amount and the suit was decreed in favour of Kesavachari. After the decree of the suit, Kesavachari died and his L.Rs filed E.P.No.21 of 2003 for realization of the amount under Order 21 Rule 51 of C.P.C. by way of attachment of the property and to bring the property for sale for realization of the E.P. amount. The Court ordered attachment and notice and posted the E.P. on 21-04-2003. Subsequently, the respondents made their appearance in the E.P. and filed a counter by contending that earlier, the L.Rs of Kesavachari filed E.P.No.81 of 1995 and the same was dismissed for want of succession certificate. The petitioner did not challenge the orders of dismissal of E.P.No.81 of 1995 and the order became final. The petitioner by name Rajeswaramma, the wife of the decree holder, filed the present E.P. on the basis of a will, dated 15-08-1992 said to be executed by the decree holder Kesavachari. The petitioner instead of complying the order of the Court by producing the succession certificate, projected herself as the successor of the decree holder in the present E.P. The order in E.P.No.81 of 1995 operates as res judicata. The obtaining of succession certificate is mandatory, therefore, the E.P. is liable to be dismissed.
3. The lower Court dismissed the Execution Petition by observing that the petitioner failed to obtain a succession certificate under Section 214 of the Indian Succession Act, 1925, therefore, the objection raised by the Judgment Debtor was considered and the petitioner is directed to obtain succession certificate as per the orders in E.A.No.101 of 2001 on or before 31-12-2004. Being aggrieved by the said order, the petitioner preferred the present Revision by contending that the lower Court ought not have insisted for succession certificate in view of the production of an award passed by the Lok Adalat by declaring that the petitioner is the sole legal heir under the will, dated 15- 09-1992; that the order passed by the Lok Adalat shall be deemed to be a decree for all purposes as the Lok Adalat shall be deemed to be the Civil Court under Sections 193, 219 and 228 of IPC and Section 22 (3) of the Legal Services Authorities Act, 1987.
4. The petitioner further contended that the lower Court failed to appreciate the facts by simply observing that the Judgment Debtor was not shown as a party to the Lok Adalat proceedings, therefore, requested to allow the Revision petition by setting aside the order of the lower Court.
5. In the light of the above circumstances, the point for consideration is:
1) Whether the production of succession certificate by the petitioner is mandatory; and
2) Whether the decree passed by Lok Adalat can be a substitute for succession certificate for realization of the E.P. amount.
POINT No. 1:
6. It is the contention of the respondents that as the decree holder died before filing of the E.P., the legal heirs are entitled to realize the amount in the E.P. after production of the succession certificate. The lower Court initially dismissed E.P.No.81 of 1995 for non-production of succession certificate. The impugned order was passed in E.P.No.21 of 2003 directing the petitioner to produce the succession certificate to order further steps in the E.P.
7. The learned Counsel for the petitioner, Ms.M. Vidyavathi, submitted that though it is a general rule that the L.Rs of the decree holder has to produce succession certificate, it is not mandatory. She further submitted that as the petitioner produced the decree passed by the Lok Adalat holding that the petitioner is a sole legatte under the will, dated 15-09-1992 executed by the decree holder, she is entitled to all his properties and assets including the court decrees, therefore, the lower Court ought to have accepted the decree of the Lok Adalat in the E.P. and ought to have ordered further step for realization of the amount. The learned Counsel for the petitioner relied on the relevant provisions under the Legal Services Authorities Act, 1987 and on the following decisions in support of her contention:
Section 22 (3) of the Legal Services Authorities Act, 1987 reads as follows:
All proceedings before a Lok Adalat or permanent Lok Adalat shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code and every Lok Adalat or Permanent Lok Adalat shall be deemed to be a Civil Court for the purpose of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
There is no dispute that the Lok Adalat constituted under the Legal Services Authorities Act, 1987 is a Civil Court for all purposes. In L. Satyanarayana Murthy v. L.A.O. (R.D.O.), Chittoor , a learned single Judge of this Court held that the award passed by the Lok Adalat is on par with the decree that is to be passed by a Civil Court while adjudicating the disputes and the same is executable in a court of law. In other words, the award, which is in terms of a decree of a Civil Court, binds all the parties to the proceedings. Hence, all the parties before the Civil Court were the parties before the Lok Adalat and therefore the award passed by the Lok Adalat will entitle the legal heirs of the decree holder to withdraw the amount and the Court is not justified in insisting for a succession certificate for disbursement of the compensation payable to the legal heirs of the decree holder who constitute the Joint Family as per the award of the Lok Adalat and the Indian Succession Act, 1925 does not cover the cases of suvivorship.
In L.I.C. of India v. T. Tirupathayya , this Court held as follows:
Under the Hindu Law, there is a distinction between succession and the devolution of property by survivorship. The Succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act. Where a family is a joint Mitakshara family and the amount sought to be recovered is an asset of the joint family, the plaintiff, who claims by survivorship, cannot be compelled to take out a succession certificate to enable him to recover the amount.
Section 214 of the Indian Succession Act reads as follows:
214. (1) No Court shall-Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased presents.-(a) Pass a decree against a debtor of a deceased person for payment of this debt to a person claiming on succession to be entitled to the effects of the deceased person or the any part thereof, or
(b) Proceed, upon an application of a person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt, Except on the production, by the person so claiming, of-
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under Section 31 or Section 32 of the Administrator General's Act, 1913 (III of 1913) and having the debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, (VII of 1889) or
(v) a certificate granted under Bombay Regulation No. VIII of 1827, and if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in Sub-section (1) includes any debt except rent, revenue of profits payable in respect of a land used for agricultural purposes.
In Basappa v. Siddamma AIR 1966 MYSORE 818, the Mysore High Court held that:
The Executing Court could not proceed with the execution unless and until the execution petitioner produces a Succession Certificate as required by Section 214 of the Indian Succession Act. In Jinnki Ballav v. Hafiz Mohamed , the Court held that:
In a suit to recover the debt, the plaintiff is bound to produce a succession certificate under the Indian Succession Act before he can obtain a decree already obtained by the deceased though he may institute his suit or apply for execution without such a certificate, provided it is filed before decree or execution.
In Venkatalakshmi v. The Central Bank (1956) 2 MAD.L.J. 114, the Madras High Court held that:
The object of taking out a succession certificate under Section 214 of the Indian Succession Act is to give security to the debtors paying the debts due to the deceased and thus facilitate the collection of debts on succession. The purpose of the Act is not to enable litigant parties to have an opportunity of litigating contested questions of title to property. When a Bank is satisfied that the applicant is entitled to collect the debts it should not prescribe onerous conditions which are in no way necessary for its safety.
In Shrimati Sankar v. Pila Debi 76 C.W.N. 400, the Calcutta High Court held that:
Section 214(1) (a) of the Indian Succession Act is only a bar to the institution of execution proceeding by a person claiming on succession. There is no bar to the continuance of execution proceedings which have already been initiated by the deceased Decree Holder.
In Tojraj v. Mt. Rampyari AIR 1938 NAGPUR 528, the Bombay High Court Nagpur Bench held that:
Where a decree-holder dies during the pendency of his application and his heir or legal representative applies for substitution of his name for that of the deceased decree-holder, the Court cannot on that application proceed with the execution unless succession certificate is produced which falls within the scope of Section 214 (1) (b) of the Indian Succession Act.
In Mathura Prasad Jamuna Prasad v. Ghasi Ram @ Rajen 1997 M.P.L.J. 187, the M.P. High Court held that:
Where the execution sought by the legal heirs of the decree holder after his death, Section 214 (1) (b) is applicable and succession certificate is necessary.
In Bhaiyaji v. Jogeshwar Dayal Bajpai , the Allahabad High Court held that:
The non-production of the documents mentioned in Section 214 (a) is no bar to a suit, but Clause-(b) is a bar for passing of a decree.
In Jadab Bai v. Puranmal AIR 1944 NAGPUR 243, the Nagpur High Court held that:
Where money decree has been obtained by the decree holder, succession certificate has to be obtained by the widow to execute the decree.
In Abdul v. Shamseali AIR 1942 BOMBAY 285, the Bombay High Court held that:
The necessity for obtaining a succession certificate cannot be waived by the parties. The obligation is not merely one in favour of the debtor; it benefits also those interested in the deceased's estate by requiring that money forming part of the estate shall only be paid to a person who has been considered suitable for the grant of a succession certificate.
In S. Rajyalakshmi v. S. Sitamahalakshmi , the A.P. High Court held that:
If the representative of the decree holder is not a person on whom the interest has developed by survivorship, it will be necessary for him to obtain a Succession Certificate to recover a debt in execution proceedings under Section 214 (1) (b), if the execution petition itself is filed by him. Therefore, in a case where an execution application is filed by the legal representative of the deceased, Succession Certificate would be necessary when a 'debt' is sought to be recovered. But when the execution is only for recovery of costs, no succession certificate is essential.
In L.I.C. of India v. T. Tirupathayya , a Division Bench of this High Court, while considering the scope of Section 214 of the Succession Act, 1925, held as follows:
Under the Hindu Law, there is a distinction between succession and devolution of property by survivorship. The Succession Act, as is indicated in the preamble, covers cases of succession only and cases of survivorship are not within the ambit of that Act. Where a family is a joint Mitakshara family and the amount sought to be recovered is an asset of the joint family, the plaintiff, who claims by survivorship, cannot be compelled to take out a succession certificate to enable him to recover the amount.
But, in the present case, it is not the case of the plaintiffs that the amount sought to be recovered is an asset of the joint family, therefore, Section 214 is squarely applicable to the facts of the present case.
In S.D. Thapa v. M.P. Regmi AIR 1958 ASSAM 81, the Gauhati High Court held that:
Section 214 of the Indian Succession Act only prohibits recovery of a debt against the debtor in the absence of a Probate or Succession Certificate. Where the suit is not against a debtor the provisions of the section are not attracted, nor does the section speak of any certificate in cases where a Probate has been granted.
8. In the light of the above legal position, I am of the view that the lower Court was right in directing the petitioners to produce a succession certificate on or before 31-12-2004 to take further steps in E.P.No.21 of 2003.
POINT No. 2:
9. In the light of the reasons assigned under Point No. 1, the Decree of a Lok Adalat cannot be a substitute for succession certificate, therefore, even if the decree obtained from the Lok Adalat is binding on the Judgment Debtor, it is not sufficient to meet the requirement of Section 214 of the Indian Succession Act.
10. Hence, I do not find any merits in the Revision Petition.
11. In the result, the Revision Petition is dismissed by confirming the order of the lower Court. No costs.