Sunday, 21 August 2016

When court should revoke succession certificate even though no probate is obtained by other side?

The question for consideration before this Court is the scope of the proceedings of revocation of certificate under Section 383 Indian Succession Act.
11. Section 383 of Indian Succession Act is quoted below :
"383. Revocation of 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 concealment from the Court of something material to the cases ;
(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."
12. Section 383(b) and (c) of the Indian Succession Act makes it clear that if certificate was obtained by concealment of any fact or on the basis of untrue allegation, certificate could be revoked.
13. In the present case, a proceeding before the Revenue Court was pending between the parties on the basis of Will relied on by opposite parties at the time petitioners applied for succession certificate. In the said proceeding before revenue court, opposite party No. 2 had already filed application for mutation on the basis of Will and contested the claim of the petitioners that they are not the heirs and legal representatives of the deceased. The present petitioners were represented by Sri Uma Shankar, Advocate on 2.1.1978. The petitioners without disclosing/ suppressing the fact applied and obtained succession certificate. The appellate court rightly allowed the application and revoked the order granting succession certificate.
14. According to me, the scope under Section 383(b) and (c) of Indian Succession Act is very clear that if any succession certificate was obtained by concealment or on the basis of untrue allegations, the power under Section 383 of Indian Succession Act could be exercised. Trial court acted illegally in rejecting the application of revocation without considering this aspect. The appellate court rightly revoked succession certificate.
15. The argument raised by learned counsel for the petitioners that as opposite party has not obtained probate under Section 213 of Indian Succession Act cannot apply for revocation of succession certificate, is untenable in law inasmuch as admittedly, the dispute relating to the mutation between the two parties was going on in the revenue court and the opposite party was one of the claimants on the basis of Will in agricultural land and he was disputing the claim of the petitioners being heirs of the deceased. His application for revocation was rightly entertained without obtaining probate under Section 213 of the Indian Succession Act.
Allahabad High Court
Jagat Narain And Ors. vs District Judge And Anr. on 16 August, 2002
Equivalent citations: 2002 (4) AWC 2896

Bench: S Srivastava


1. The petitioners challenged the order dated 25.4.1984, Annexure-2 to the writ petition allowing appeal and setting aside the order dated 2.2.1982 refusing to revoke succession certificate.
2. The petitioners applied for succession certificate which was registered as Misc. Case No. 8 of 1979 under Section 372 of Indian Succession Act on 20.2.1979, before the Civil Judge, Mainpuri, in respect of amount of Rs. 16,750 deposited in the Post Office and State Bank of India by Rati Ram Sharma. Petitioners who are nephews of Rati Ram Sharma filed application on the ground inter alia, that they are only heirs of Rati Ram Sharma entitled to succession certificate, that there Js no Will executed by him in favour of any other person.
3. The application was allowed and the succession certificate was issued by Civil Judge on 17.7.1979.
4. Opposite party No. 2 Shyam Sunder filed an application under Section 383 of the Indian Succession Act on 25.7.1979 on the ground, inter alia, that the deceased executed a Will on 28.12.1976, petitioners had full knowledge about the fact that proceedings were going on the basis of will for mutation in revenue record before Tehsildar, they were party to the said proceedings and represented through Uma Shanker, Advocate on 2.1.1978, in spite of this, they had obtained succession certificate by concealment of the fact.
5. The Civil Judge, Mainpuri, by order dated 2.2.1982 rejected the said application.
6. Appeal filed by opposite party No. 2 was allowed. The order dated 2.2.1982 was set aside, and succession certificate dated 7.2.1979 was revoked.
7. Heard Sri B. K. Srivastava, learned counsel for the petitioners and Shri T. P. Mishra, learned counsel for the opposite party.
8. Learned counsel for the petitioners urged that opposite party No. 2 did not obtain any probate under Section 213 of Indian Succession Act and is not entitled to file application for revocation. He further urged that the finding recorded by the trial court was not set aside and the order of appellate authority reversing the decree is vitiated in law.
9. Sri T. P. Mishra, learned counsel for the opposite party, opposed the argument made by learned counsel for the petitioners and said that the order passed by appellate court was rightly passed in accordance with law.
10. The question for consideration before this Court is the scope of the proceedings of revocation of certificate under Section 383 Indian Succession Act.
11. Section 383 of Indian Succession Act is quoted below :
"383. Revocation of 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 concealment from the Court of something material to the cases ;
(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."
12. Section 383(b) and (c) of the Indian Succession Act makes it clear that if certificate was obtained by concealment of any fact or on the basis of untrue allegation, certificate could be revoked.
13. In the present case, a proceeding before the Revenue Court was pending between the parties on the basis of Will relied on by opposite parties at the time petitioners applied for succession certificate. In the said proceeding before revenue court, opposite party No. 2 had already filed application for mutation on the basis of Will and contested the claim of the petitioners that they are not the heirs and legal representatives of the deceased. The present petitioners were represented by Sri Uma Shankar, Advocate on 2.1.1978. The petitioners without disclosing/ suppressing the fact applied and obtained succession certificate. The appellate court rightly allowed the application and revoked the order granting succession certificate.
14. According to me, the scope under Section 383(b) and (c) of Indian Succession Act is very clear that if any succession certificate was obtained by concealment or on the basis of untrue allegations, the power under Section 383 of Indian Succession Act could be exercised. Trial court acted illegally in rejecting the application of revocation without considering this aspect. The appellate court rightly revoked succession certificate.
15. The argument raised by learned counsel for the petitioners that as opposite party has not obtained probate under Section 213 of Indian Succession Act cannot apply for revocation of succession certificate, is untenable in law inasmuch as admittedly, the dispute relating to the mutation between the two parties was going on in the revenue court and the opposite party was one of the claimants on the basis of Will in agricultural land and he was disputing the claim of the petitioners being heirs of the deceased. His application for revocation was rightly entertained without obtaining probate under Section 213 of the Indian Succession Act.
16. In these circumstances, writ petition is finally disposed of with the direction that now Civil Judge, Mainpuri, will consider the application for granting succession certificate and pass orders on merits after giving opportunity to the parties contesting the case in accordance with law.
Print Page

No comments:

Post a Comment