Friday 13 February 2015

Whether civil proceeding challenging succession certificate is barred by Res judicata?

These Sections make it clear that the proceedings for grant of succession certificate are summary in nature and that no rights are finally decided in such proceedings. Section 387 puts the matter beyond any doubt. It categorically provides that no decision under Part X 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 Section 387permits the filing of a suit or other proceeding even though a succession certificate might have been granted.
16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors. reported in MANU/SC/0393/2000 : AIR2000SC2301 . In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the CPC, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held that Section 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the CPC. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case.
PETITIONER:
JOGINDER PAL

Vs.

RESPONDENT:
INDIAN RED CROSS SOCIETY & ORS.

DATE OF JUDGMENT: 29/09/2000

BENCH:
K.T.  THOMAS , R.P.  SETHI , & S.N.  VARIAVA
Citation: AIR2000SC3279,2000)8SCC143, [2000]Supp3SCR626, 2001(1)UC69


    This  Appeal  is  against  a Judgment of  the  Punjab  &
Haryana High  Court  dated 5th October, 1999 by  which the
second Appeal filed  by  the Appellant  herein  has been
dismissed.

    Briefly stated the facts are as follows:

    One Ms.   Raj Mohini possessed moveable  and  immovable
properties.   She was unmarried and did not have any  issue.
She  executed a Will dated 2nd April, 1985 in favour of the
1st  Respondent, which is the Indian Red Cross Society. The
Appellant  is related to Ms.  Raj Mohini.  He is the son  of
the maternal uncle of the lady. On 12th June, 1987 Ms. Raj
Mohini executed  another  Will by which she  cancelled the
earlier Will  and  bequeathed all her properties  to the
Appellant.   The  said Raj Mohini died on 27th April,  1998.
(For sake of convenience she will hereinafter be referred to
as  the said  deceased.) The 1st Respondent applied  for  a
Succession  Certificate in respect of the movable assets  of@@
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the  said deceased.  They claimed to be beneficiaries  under@@
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the  Will dated 2nd April, 1985.  When the Appellant  learnt
about  this Application he got himself impleaded as a  party
to  that  Application. The Appellant also filed a  Petition
for  probate  of  the Will dated 12th June, 1987.   The 1st
Respondent  applied for stay of this Petition under  Section
10  of the Code of Civil Procedure on the ground  that the
parties and  issues, in the Probate Petition and  in  their
Application for Succession Certificate; were the same. The
Probate Petition  was stayed.  In  the  Application for
Succession  Certificate the Court raised issues as  follows:@@
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"1.   Whether  Miss  Raj Mohni executed a valid Will  dated
2.4.1985  in  favour of the Red Cross  Society-appellant  as
alleged ?"

    2. Whether  Miss Raj Mohni executed a valid  Will  in
favour of  Joginder  Pal, respondent no.  2 on 12.6.87  as
alleged ?"

    Parties  were  allowed  to lead  oral  and documentary
evidence.  Ultimately by an Order dated 30th March, 1993 the
Application  was dismissed.  The operative part of the Order
reads as follows:

    "5.  For  the  above stated reasons I do not  find any
merits in the instant application and therefore the same is
dismissed.   However, the respondent namely, Joginder Pal is
entitled  to receive the liquid assets of deceased Raj Mohni
as  her only legal heir on the basis of will executed in his
favour by  deceased Rajmohni during her life time in  sound
disposing  mind.  The said will is Ex. R.1 dated 12.6.87 on
the  record.   The  respondent no.  2 is  directed  to file
security  in the sum of Rs.  2,50,000/- by filing a personal
bond  and  surety  bond.   The application  is disposed  of
accordingly.  File be consigned to the record room."

    Thus  a  Succession Certificate   was  granted  to the
Appellant in respect of the Will dated 12th June, 1987. The
Appellant  withdrew his Probate Petition.  At this stage, it
must  be  mentioned  that, on 20th August, 1996,  an  Appeal
filed  by  the 1st Respondent against the Order dated 30th
March, 1993  was dismissed.  A Revision filed against that
order was dismissed by the High Court on 10th October, 1996.
1st  Respondent then filed this Suit for a declaration that
they  were the lawful owner and in possession of the  assets@@
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of  the said deceased. They have based their claim on the@@
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Will  dated  2nd  April,  1985.   The Appellant  filed  an
Application  that  the plaint did not make out any case and
that  it  should be rejected under Order VII Rule 11 of the
Code  of  Civil Procedure.  By an Order dated 18th  January,
1997  the  Trial Court rejected the plaint under  Order VII
Rule  11  C.P.C.  The 1st Respondent preferred Civil  Appeal
No.   73.   By a Judgment dated 5th April, 1997 this  Appeal
was  allowed. The  case  was remanded back  for  trial  on
merits.  The  Appellant preferred Second Appeal No.  14  of
1997.  This was dismissed by the impugned Judgment dated 5th
October,  1999.  Mr. Sohal submitted that  the  impugned
Judgment  should  be set aside inasmuch as a full trial had
already taken place in the Application, filed by  the 1st
Respondent,  for Succession Certificate.  He submitted that
those proceedings were not disposed off in a summary manner.
He  submitted that issues had been raised, parties had been
allowed to lead evidence.  He submitted that a decision  on
merits had been given by that Court.  He submitted that the
1st Respondent now could not claim any rights under the Will
dated 2nd April, 1985. He also relied upon Explanation VIII
of  Section 11 of the Code of Civil Procedure. He submitted
that  the  principles of res-judicata would also apply.  In
support of his submission Mr.  Sohal relied upon the case of
Smt.   Sawarni v.  Smt.  Inder Kaur and others reported  in@@
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1996(7) JT S.C. 580.  In this case it has been held by this@@
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Court  that  rights  flowing from a  succession certificate
cannot be ignored without getting it annulled. It has been
held  that the lower Court committed a serious error of law
in  ignoring  the Will and the succession certificate  which
unequivocally  clinched the  issue.  It must, however,  be
noted that these observations are made in the context of the
facts of that case.  In that case, the plaintiff had filed a
suit  claiming her share in the property of the deceased  on
the basis of a Will and a Succession Certificate obtained by
her.   The lower Court had, on basis of oral and documentary
evidence,  concluded that the plaintiff had no right in the
assets of  the deceased.  The lower Court had ignored the
Will  and the Succession Certificate.  It is in that context
that  the above observations had been made.  Mr.  Sohal also
relied upon the case of Mohan Lal v.  Kartar Singh reported
in  1995  Supp (4) SCC 684.  In this case,  the  effect  of
Sections  43  and 47 of the Pepsu Tenancy  and Agricultural
Lands  Act, 1955 were considered.  This Court held that even
though proceedings under Section 43, were summary in nature
the  legislature did not exclude from the purview of Section
43  cases  where disputes were complicated because of  facts
and pleas raised by the contesting parties.  This Court held
that  the  decision  of the Collector becomes final  in the
sense  that it could not be called in question in any Court.
The  finality attached to the decision of the Collector was
in  view of Section 47. This Section barred jurisdiction of
Civil  Courts in matters which were required to be  settled,
decided and/or dealt with by the Collector. Relying  on
these  two  decisions Mr.  Sohal submitted that even  though
proceedings  for  successions  certificate  are summary  in
nature, the  finding  given   therein and  the  succession
certificate  issued  cannot  be ignored without getting  it
annulled.   He further submitted that in  cases  like the
present case where issues had been raised, evidence had been
led  by the  parties  and the Court did not  proceed  in  a
summary fashion  the  finding would also become  final and
would  operate as res-judicata between the same parties.  In
order  to  consider  the  submission   of  Mr. Sohal the
provisions of the Indian Succession Act require to be looked
into.  The Indian Succession Act deals with grant of Letters
of  Administration  (with or without the will being  annexed
thereto)  or  grant  of Probate   or  grant  of  Succession
Certificates.  It is admitted that, by virtue of Section 57,
it  is not necessary to apply for Letters of  Administration
or  Probate  in the  States of Punjab and  Haryana. The
deceased  Mohini was a resident of Punjab and, therefore, no
probate was  required.  It must, however,  be noted that
Section 273  of  the Indian Succession Act,  provides that
probate or  letters of administration have effect over all
the  property  and  estate,  movable or immovable,  of the
deceased  throughout  the  State  in which  they  have been
granted and  such  probate should be conclusive as  to the
representative title of the executor or legatee.  Part X of
the   Indian   Succession   Act   deals   with  Succession
Certificates. Sections  373, 383(e) and 387 are  relevant.
They read as follows:  "373.  Procedure on application.- (1)
If  the District Judge is satisfied that there is ground for
entertaining  the  application, he shall fix a day  for the
hearing thereof and cause notice of the application and  of
the  day  fixed for the hearing- (a) to be  served  on any
person to whom, in the opinion of the Judge, special notice
of  the application should be given, and (b) to be posted on
some  conspicuous  part of the court-house and published  in
such  other  manner,  if any, as the Judge, subject  to any
rules made by the High Court in this behalf, thinks fit, and
upon  the  day fixed, or  as soon  thereafter as  may  be
practicable, shall proceed to decide in a summary manner the
right  to  the certificate.  2. When the Judge decides the
right  thereto to belong to the applicant, the Judge  shall
make  an order for the grant of the certificate to him.  3.
if  the Judge cannot decide the right to  the certificate
without determining questions of law or fact which seem  to
be  too intricate  and difficult for determination  in  a
summary proceeding, he may nevertheless grant a certificate
to the applicant if he appears to be the person having prima
facie  the  best  title thereto.  4.  When  there  are more
applicants than one for a certificate, and it appears to the
Judge  that more than one of such applicants are  interested
in the estate of the deceased, the Judge may, in deciding to
whom  the  certificate is to be granted, have regard to the
extent of interest and the fitness in other respects of the
applicants.  (emphasis supplied)

    383.   Revocation of certificate.- A certificate granted
under  this  Part  may be revoked for any of  the  following
causes, namely:- xxx xxx xxx xxx xxx xxx (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.

    387.   Effect of decisions under this Act, and liability
of holder of certificate thereunder.- No decision under this
Part upon any question of right between any parties shall be
held to bar the trial of the same question in any suit or in
any  other proceeding between the same parties, and  nothing
in  this Part shall be construed to affect the liability  of
any person who may receive the whole or any part of any debt
or security, or any interest or dividend on any security, to
account therefor to the person lawfully entitled  thereto."
These  Sections make it clear that the proceedings for grant
of  succession certificate are summary in nature and that no
rights are finally decided in such proceedings. Section 387
puts the matter beyond any doubt.  It categorically provides
that  no  decision under Part X 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 Section 387 permits the filing of a
suit   or   other  proceeding even  though  a  succession
certificate might have been granted.  This question was also
considered  by this Court in the case of Madhvi Amma Bhawani@@
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Amma  & Ors.  v.  Kunjikutty Pillai Meenakshi Pillai & Ors.@@
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reported  in JT 2000 (5) SC 336.  In this case after  having
considered  the provisions  of Sections 370 to 390  of the
Indian Succession Act as well as Section 11 of the Code  of
Civil  Procedure,  it  has been held that  any adjudication
under  Part  X does not bar the same question  being  raised
between the same parties in a subsequent suit or proceeding.
It  has been held that Section 387 of the Indian  Succession
Act  takes  a  decision given under Para X  of the  Indian
Succession  Act outside the purview of Explanation VIII  to
Section 11 of the Code of Civil Procedure.  It has been held
that  Section  387 gives a protective umbrella to  ward off
from the rays of res judicata to the same issue being raised
in  a  subsequent  suit or  proceeding.   We  are  in full
agreement  with the view expressed in this case.  In view of
the  specific provisions of law it is not possible to accept
Mr.   Sohal's submissions.  Section 387 specifically permits
the  2nd  Respondent  to  file a  subsequent  suit.   Merely
because issues were raised and/or evidence was led, does not
mean  that  the findings  given thereunder  are  final and
operate as res-judicata.  Even in summary proceedings issue
can  be raised and/or evidence can be led.  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.  In this
view of the matter, we see no substance in this Appeal. The@@
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same stands dismissed. There will be no order as to costs.@@
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