Sunday, 21 August 2016

When proceeding for revocation of succession certificate should not stayed?

To my mind, the petitioner cannot draw any help from these authorities because undisputedly the proceedings under the provisions of Indian Succession Act are summary proceedings before a Testamentary Court and while dealing with the Said proceedings the said Court does not function as a Civil Court as it does while deciding a civil suit. The scope of a civil suit and the proceedings under the Indian Succession Act is quite different and, therefore, the similarity of the question in the proceedings and the suit does not appear to be a valid ground for staying the proceedings under the provisions of the Indian Succession Act. Finding of the testamentary Court while disposing of the proceedings under the Indian Succession Act on the disputed question about the marriage of the respondent with the deceased Bakshi Ram Bhasin will not bind the civil Court and the civil Court will be entitled to return its own finding based on the merits of the case in the suit for partition.
5. Thus, having considered the matter in its entirety this court is of the opinion that the learned trial Court was fully justified in dismissing the application of the petitioner and not staying the proceedings under Section 383 Indian Succession Act pending before it. 
Delhi High Court
Sudershan Ram Bhasin vs Shrimati Kamla Bhasin on 27 September, 2001

Bench: R Jain

1. This revision is directed against the order of the Administrative Civil Judge, Delhi dated 31.1.2001 thereby disposing of an application under Section 10 read with Section 151 of the Code of Civil Procedure moved on behalf of the petitioner herein praying for stay of the proceedings under Section 383 of the Indian Succession Act for revocation of Succession Certificate granted on 8.9.1994 by the learned Subordinate Judge, Delhi in favor of the petitioner and Smt. Anita Sabharwal. The application was made on the ground that a suit for partition filed by the respondent herein was pending in the Civil Court and the question in the said suit and the proceedings for revocation f the Succession Certificate was identical and, therefore, the proceedings were liable to be stayed till the disposal of the partition suit. Learned trial Court dismissed the application mainly on the ground that provisions of Section 10 CPC can be invoked when the proceedings are in the nature of suit and since the proceedings under Section 383 of the India Succession Act for revocation of a Succession Certificate cannot be equated to suit so the said provision had no application. Additional reasoning given by the trial Court is that the Court of the Additional District Judge seized of the partition suit has no jurisdiction in relation to the proceedings under the Indian Succession Act. The learned trial Court also refused to exercise its inherent powers under Section 151 CPC for staying the proceedings before it.
2. I have heard the learned counsel for the parties at sufficient length and have given my thoughtful consideration to their respective submissions. It is not disputed from the side of the petitioner that the proceedings under Section 383 of the Indian Succession Act for revocation of Succession Certificate cannot be deemed to be suit and, therefore, strictly and legally speaking, the provisions of Section 10 CPC are not attracted for staying the said proceedings in view of pendency of the earlier suit for partition. His contention, however, is that having regard to the totality of the facts and circumstances of the case and more particularly the fact that the partition suit filed by the respondent is based on the averment and allegation that the respondent is a legally wedded wife of the deceased Shri Bakshi Ram Bhasin and was entitled to succeed his Estate is also the basis of the application for revocation filed by her under Section 383 CPC and, therefore, to avoid conflicting/discrepent findings it is a fit case where the proceedings underSection 383 of the Indian Succession Act should be stayed till the disposal of the partition suit. In support of his contention, learned counsel has placed reliance upon two decisions; the first being of the Jharkhand High Court in the case of Smt. Vijay Laxmi and others v. Smt. K. Smiachalanalias Simachalan; AIR 2001 Jharkhand 23 wherein the Court expressed the following opinion:-
"A proceedings for grant of succession certificate is summary in nature and no rights are finally decided in such proceeding. S.387 of the Act, categorically provides that no decision under Part 10, upon any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. Thus S.387 permits the filing of a suit or other proceeding, even though a succession certificate might have been granted or refused. Merely because issues were raised and/or evidence was led, in respect of an application for succession certificate, it does not mean that the findings given there under are final and operate as res judicata. Even in summary proceedings, issues can be raised and/or evidence can be led, but the proceedings remain summary even though the Court may, in its discretion, permit leading of evidence and raising of issues. So in a subsequent suit the crucial issues must be decided afresh, untrammelled or uninfluenced by any finding made in the proceedings for grant of succession certificate. Thus, in instant case where application for grant of succession certificate was filed by wife of deceased and marriage between applicant and deceased was disputed by mother of deceased by claiming that her son died bachelor, the question of legality of marriage between parties cannot be gone into in such proceedings. Thus rejection of application for grant of succession certificate was proper. The applicants are at liberty to get their right, title and interest declared in respect of estate left by deceased, by a competent Court of civil jurisdiction, wherein observations/ findings recorded in the present proceeding shall not operate as re-judicate."
3. The second judgment is of Guwahati High Court in the case of Subho Ram Kalita (Deceased by L.Rs) & others v. Dharmeshwar Das Koch and others; AIR 1987 Gauhati 73 wherein the said High Court on a consideration of the facts and circumstances of the said case held the view that under those circumstances where the requirements of Section 10, C.P.C. are not satisfied, recourse to Section 151 C.P.C. is permissible for staying a suit or for injuncting a plaintiff from proceeding with the case, provided the Court is satisfied that such a recourse is necessary for the ends of justice or to prevent abuse of the process of the Court, and it is not violative of any express and specific provision of the C.P.C. or any other law applicable to the case to be stayed or injuncted.
4. To my mind, the petitioner cannot draw any help from these authorities because undisputedly the proceedings under the provisions of Indian Succession Act are summary proceedings before a Testamentary Court and while dealing with the Said proceedings the said Court does not function as a Civil Court as it does while deciding a civil suit. The scope of a civil suit and the proceedings under the Indian Succession Act is quite different and, therefore, the similarity of the question in the proceedings and the suit does not appear to be a valid ground for staying the proceedings under the provisions of the Indian Succession Act. Finding of the testamentary Court while disposing of the proceedings under the Indian Succession Act on the disputed question about the marriage of the respondent with the deceased Bakshi Ram Bhasin will not bind the civil Court and the civil Court will be entitled to return its own finding based on the merits of the case in the suit for partition.
5. Thus, having considered the matter in its entirety this court is of the opinion that the learned trial Court was fully justified in dismissing the application of the petitioner and not staying the proceedings under Section 383 Indian Succession Act pending before it. There appears to be no legality or material irregularity or any other infirmity in the impugned order which calls for any interference by this court. This revision petition is accordingly dismissed with costs of Rs.2000/-.
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