VISALAKSHI Vs. PRAKASAN

JUDGEMENT

(1.) The question raised for a decision in this civil revision filed under Sec.115 of the Code of Civil Procedure (for short, "the Code") is whether in view of the power given to the Family Court to adjudicate dispute of the nature coming under Sec.7(1)(d) of the Family Court Act (for short, "the Act") power of the District Judge (or other Court to which that power is delegated) to grant succession certificate under Sec.371 of the Indian Succession Act, 1925 (for short, "the Succession Act") is taken away.

(2.) On the death of one Balan, one of his sons moved a petition before learned Sub Judge, Tirur under Sec.371 of the Succession Act for the grant of a Succession Certificate regarding a sum of Rs. .9,00,000/- in deposit with the third respondent, a co-operative bank. Since petitioner was shown as a nominee in the deposit receipt, she was impleaded as a party in the original petition. Petitioner claimed to be the legally wedded wife of the said Balan (which is not admitted by respondents 1 and 2, sons of the said Balan) and contended that learned Sub Judge has no jurisdiction to entertain the petition for grant of succession certificate since her status as legally wedded wife of deceased Balan is disputed and hence that dispute is to be settled by the Family Court under Sec.7(1)(d) of the Act. Learned Sub Judge heard the challenge to jurisdiction as a preliminary point and held that he has jurisdiction to decide the original petition. That order is under challenge. Learned counsel for petitioner contended that in view of Sec.7(1)(d) of the Act, and as there is a dispute regarding the matrimonial status of petitioner raised by respondents 1 and 2, learned Sub Judge has no jurisdiction to try the original petition. Learned counsel has contended, placing reliance on the decision in Syamala devi v. Sarala devi, 2009 5 RCR(Civ) 421 that even a dispute not between the parties to the marriage is cognizable by the Family Court under Sec.7(1)(d) of the Act. Learned counsel has also relied on Sec.8 of the said Act which ousted jurisdiction of the Civil Court in matters which the Family Court is required to adjudicate under Sec.7 of the said Act. Learned counsel for respondents 1 and 2 contended that the function of the District Judge (or other Court to which the power is delegated) under Sec.373 of the Succession Act is summary in nature and when it involves too intricate and difficult questions of law and fact, the District Judge may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. It is argued by learned counsel that as the proceeding before District Judge is of a summary nature, his decision will not operate as res judicata in a subsequent suit on title in the Civil Court. In the circumstances, contention that Sec.7(1)(d) and Sec.8 of the Act ousted jurisdiction of the District Judge to decide on question of grant of succession certificate when there is a dispute regarding marital status of a party cannot be accepted, it is argued. Reliance is placed on the decision of the Karnataka High Court in Smt. Vasumathi v. Chandriyani Madhavi and Ors., 1991 AIR(Kar) 201.

(3.) To appreciate the rival contentions it is necessary to refer to the relevant provisions of the statutes referred to me. Sec.371 of the Succession Act confers jurisdiction on the District Judge to grant certificate (that power is given to the Sub Judge and Munsiff also be delegation). Sec.372 of the said Act deals with the application for Succession Certificate and Section 373 deals with the procedure to be followed on such application. Under Section 373, 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 to be served on any person to whom, special notice of the application should be given. Subsection (3) of Sec.373 says that 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.