Sunday, 19 August 2018

Whether appeal will lay to district judge from order passed by civil judge senior division in application for succession certificate?

 In view of this position, the Civil Judge, Senior Division in these two Appeals have exercised the jurisdiction under Sub-section 1 of Section 388 of the said Act of 1925. In view of the proviso to Sub-section 2 of Section 388, the Appeals under Section 384 of the said Act of 1925 against the order of the learned Civil Judge, Senior Division will therefore lie to the District Judge and not to this Court. By virtue of the proviso to Sub-section 2 of Section 388 of the said Act of 1925 in case of all appealable orders passed on Application for succession certificate by the courts referred to Sub-section 1 of Section 388, the Appeal will lie to the District Judge irrespective of the value of the subject matter of the Application for grant of succession certificate. The reason being that the forum of Appeal is created by the proviso to Sub-section 2 of Section 388 of the said Act of 1925 and not by the provisions of said Act of 1869."
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

First Appeal No. 226/2018

Decided On: 12.02.2018

Sheela Vs. Panchfulabai and Ors.

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2018(4) MHLJ 392


1. Heard.

2. Admit. Heard forthwith with the consent of the learned counsel for the parties.

3. The question that arises for consideration in this appeal is, whether the District Court in the instant case was justified in holding that the appeal filed by the appellants challenging an order passed by the Court of Civil Judge, Senior Division, rejecting their application for grant of succession certificate, was not maintainable relying upon the judgment of the Division Bench of this Court in the case of Smt. Nola Jonathan Ranbhise vs. Union of India- MANU/MH/0159/2014 : 2014 (4) ALL MR 181. The District Court has held that the appeal was not maintainable and that it should have been filed before this Court under Section 384 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act"). Accordingly, by the impugned order, the District Court has returned the appeal papers to the appellants for presentation to the proper Court.

4. Upon notice being issued for final disposal in this appeal, the contesting respondent No. 1 has appeared through counsel and it is submitted that the contentions raised on behalf of the appellants about the District Court having jurisdiction to entertain the appeal are correct and that the District Court in the impugned judgment and order fell in error in holding that the appeal ought to have been filed before this Court. Although the parties are ad idem on the question of jurisdiction, it is necessary to examine the question as to whether the appeal could have been filed before the District Court under the provisions of the said Act or the appeal ought to have been filed before this Court.

5. The facts leading up to the filing of this appeal are that the appellants had filed an application for grant of succession certificate under Section 372 of the aforesaid Act. The respondent No. 1 objected to grant of such succession certificate. Since this appeal is not really concerned with the merits of the claims of the parties, suffice it to say that the Court of Joint Civil Judge, Senior Division before whom the said application was filed, rejected the said application of the appellants. The said order dated 31.03.2010 passed by the Court of Joint Civil Judge, Senior Division, Bhandara, in Succession Case No. 9/2008, was challenged by the appellants before the District Court by filing Regular Civil Appeal No. 114/2011. The said appeal has been returned by the District Court, by holding in its order dated 1.8.2015 that under Section 384 of the said Act, the appeal ought to have been filed before this Court. Reliance has been placed by the District Court on the Division Bench judgment of this Court in Smt. Nola Jonathan Ranbhise (supra).

6. It is submitted by the learned counsel appearing on behalf of the parties that reliance placed on the aforesaid judgment by the District Court in the impugned order dated 1.8.2015 was misplaced, because the factual matrix in the said case decided by the Division Bench was different from the facts of the present case. In order to consider the aforesaid submissions made on behalf of the parties, it would be relevant to refer to the said Division Bench judgment of this Court passed in Smt. Nola Jonathan Ranbhise (supra). A perusal of the said judgment shows that it was a case which arose out of an application for grant of probate filed under Section 276 of the said Act, which was granted and thereupon filing of an application under Section 263 of the said Act, for revocation of the probate so granted. In that context, the Division Bench considered the question as to whether an order passed in such proceedings could be subject matter of appeal before the District Court or that the appeal would be maintainable only before this Court.

7. A reference to the provisions of the said Act would show that applications for grant of probate and for revocation are filed under Sections 276 and 263 respectively of the said Act. These are in Chapters III and IV of the said Act. Section 299 of the said Act, which is in Chapter IV, provides that every order made by a District Judge shall be subject to appeal to this Court in accordance with the provisions of the Code of Civil Procedure. In the context of the question that arises in the present appeal, Section 265 of the said Act also becomes relevant because it grants power to this Court to appoint such Judicial Officer within any district as it thinks fit to act for the District Judge as delegates to grant probate etc. Thus, a perusal of the said provision would show that although the powers exercised by the District Judge under the said two Chapters can be delegated, but, any order passed in the said proceedings, is appealable before this Court under Section 299 of the said Act.

8. The present case concerns an application for grant of succession certificate filed by the appellants under Section 372 of the said Act. This provision is found in Part X of Chapter XIII of the said Act. Section 384 of the said Act provides that an appeal from an order of a District Judge granting, refusing or revoking a certificate under the said Part, shall lie to the High Court subject to other provisions of the said Part. The words "subject to the other provisions of this Part" are relevant because Section 388 of the said Act provides for investiture of inferior Courts with jurisdiction of District Court for purposes of the said Act. Under the said provision, by a notification the State Government can invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under the said Part. Proviso to sub-section (2) of Section 388 specifically provides that when any order is passed by an inferior Court invested with the jurisdiction of the District Court, an appeal against such order shall lie before the Court of District Judge and not this Court. Sub-section (3) of the said provision further provides that an order passed by the Court of District Judge in such an appeal shall be subject matter of revision before this Court.

9. The fact that such a notification, as contemplated under Section 388 of the said Act, was issued, becomes clear from judgment passed by this Court in the case of Vitthal Ramchandra Mali vs. Laxmi Ganpati Mali - MANU/MH/0277/2006 : AIR 2006 Bombay 298. In the said judgment, wherein a similar question concerning maintainability of appeal arose, a learned Single Judge of this Court has held as follows:-

4. The Registrar (Judicial I) has submitted a report dated 03rd May, 2006 inviting my attention to a notification dated 25th October, 1890 issued by the Governor in Council. The said notification has been issued in exercise of power conferred on Local Government under Section 26(1) of the Succession Page 1882 Certificate Act, 1889 (hereinafter referred to as Act No. VII of 1889). By the said notification, the Governor General in Council invested with the functions of a District Judge under the said Act No. VII of 1889 the courts of all subordinate Judges in the State which have not been already so invested. Under the said Act 1889 a provision was made for grant of succession certificates and jurisdiction to grant succession certificate was vested in District Court.

Xxxx

8. Therefore, the said notification dated 25th October, 1890 will have to be treated for all purposes as a notification under Section 388(1) of the said Act of 1925. If the paragraph No. 304 of the Civil Manual makes this position very clear, it must be noted here that sub-paragraph No. (iii) of paragraph No. 305 of the Civil Manual does not appear to be correct as Section 28A does not confer a power on this Court to invest any sub-ordinate court with the powers of the District Judge to grant succession certificate.

9. In view of this position, the Civil Judge, Senior Division in these two Appeals have exercised the jurisdiction under Sub-section 1 of Section 388 of the said Act of 1925. In view of the proviso to Sub-section 2 of Section 388, the Appeals under Section 384 of the said Act of 1925 against the order of the learned Civil Judge, Senior Division will therefore lie to the District Judge and not to this Court. By virtue of the proviso to Sub-section 2 of Section 388 of the said Act of 1925 in case of all appealable orders passed on Application for succession certificate by the courts referred to Sub-section 1 of Section 388, the Appeal will lie to the District Judge irrespective of the value of the subject matter of the Application for grant of succession certificate. The reason being that the forum of Appeal is created by the proviso to Sub-section 2 of Section 388 of the said Act of 1925 and not by the provisions of said Act of 1869."

10. In the light of above, it becomes clear that the Division Bench of this Court in the case of Smt. Nola Jonathan Ranbhise (supra) was concerned with an application for grant of probate and for revocation thereof under Sections 276 and 263 in Chapters III and IV of the said Act wherein no provision similar to Section 388 thereof exists. Therefore, while there is a power of delegation as contemplated under Section 265, concerning powers to be exercised by a Court of District Judge concerning Chapters III and IV of the said Act, there is no power as specifically provided under Section 388 of the said Act in respect of filing of appeals before the Court of District Judge, in cases where a Court inferior to the Court of District Judge has exercised powers, upon such delegation. This distinction was completely missed by the District Court in the present case, while passing the impugned order. Although a reference to Section 388 of the said Act has been made in paragraph 7 of the impugned order, the District Court while passing the impugned order has simply relied upon the judgment of the Division Bench of this Court passed in Smt. Nola Jonathan Ranbhise (supra).

11. This demonstrates the error that has crept in while the District Court has passed the impugned order in the present case. A perusal of Section 388 of the said Act, particularly proviso to sub-section (2) thereof, demonstrates that the appeal filed by the appellants herein before the District Court was maintainable under Section 384 read with Section 388 of the said Act. The District Court in the present case erred in holding otherwise.

12. Accordingly, the appeal is allowed. The impugned order dated 01.08.2015 is quashed and set aside. It is held that the appeal filed by the appellants was maintainable before the District Court. Therefore, the parties are now relegated to the District Court for a decision of the appeal on merits. In the light of the above, the appeal papers are returned to the Court of District Judge, Bhandara, for decision of the appeal on merits. The parties are directed to appear before the District Court, Bhandara, on 23.03.2018, by which time it shall be ensured that the appeal papers reach the District Court.

13. The appeal is disposed of with no order as to costs.


Print Page

No comments:

Post a comment