VAN Vs. MATHUKUTTY

JUDGEMENT

(1.) THE revision petition is by the petitioner in an application under S. 383 of the Indian Succession Act, for revoking a succession certificate in favour of the respondent herein dated 18-10-1988 in Succession O. P. No. 7/1988, in respect of the debts due to one deceased Leelamma. THE revision petitioner is the father of deceased Leelamma and the respondent is her husband. It is an admitted fact that though Leelamma was originally a Hindu, by conversion she embraced christianity and that on the date of her death she was a Christian. THE father of Leelamma alleged that the respondent herein, husband of Leelamma , obtained succession certificate dated 18-10-1988 in succession O. P. NO. 7/1988 by fraudulent concealment of material facts and thereby certificate issued is liable to be revoked. According to the revision petitioner he being the father of Leelamma is alsoa heir under the Indian Succession Act who is entitled to one-half share of the assets held by Leelamma on her death. THE revision petitioner alleged before the lower court that no citation was issued to him before the succession certificate was issued to the respondent and that the respondent intentionally suppressed the fact of the existence of the revision petitioner and the obtaining of the succession certificate by him alone is fraudulent and is liable to be revoked.

(2.) THE case of the respondent is that the revision petitioner though he is the father of deceased Leelamma is a Hindu and the deceased Leelamma being achristian on the date of her death, he is not entitled to succeed to her estate. THE lower court found in favour of the contention of the respondent and dismissed the application for revocation of the certificate. THE revision is against the above order.

(3.) TO the same effect is the decision reported in Siril Christian and another v. Monga Mura (AIR 1964 Assam 58), wherein also the identical question came up for consideration and it was held: "8. On the other hand, there are direct authorities on the question that was raised before us. Reference may first be made to one of the earliest decision of the case, namely the decision in the case of administrator-General of Madras v. Anandachari , ILR9 Mad. 466. It was therein held that a hindu father was entitled to succeed to his son who accepted Christianity and died as a Christian. This is a direct case applicable to the facts of the present case. In the case of Benoy Kumar Mondal v. Panchanon Majumdar , AIR 1956 Cal. 177 a Division Bench of the calcutta High Court held that a relation, if he is, as a nearest consanguine or blood relation is entitled to letters of administration to the estate of a christian deceased, even though he is a Hindu and it was therein observed that the Succession Act does not concern itself with the religion of the claimant for succession although the religion of the deceased plays an important role -and, indeed, it is almost the determining factor - in the matter of applicability or otherwise of the rules of succession, laid down in the Act, to a particular case, and that this distinction in the nature of character of the relevant estate, depending upon the religion of the deceased owner, runs throughout the Act, but stress is nowhere laid in the matter of its devolution upon the religion of the heir or the inheritor, and that the religion of the claimant as distinguished from the religion of the deceased owner is entirely irrelevant for the purpose. We are fully in agreement with these observations of the learned judges of the Calcutta High Court. 9. In this context it would be useful to refer to the relevant provisions of the Succession Act. S. 219 is as follows: - "if the deceased has died in estate and was not a person belonging to any of the classes referred to in S. 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely: ( a ) If the deceased has left a widow, administration shall be granted to the widow, unless the court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased. " Coming to the question of succession to a deceased Christian governed by the Act, we find the order of succession laid down in S. 41 to 48. S. 41 lays down that where an intestate has left no lineal descendants, the rules for the distribution of his property shall be those contained in S. 42 to 48. S. 42 lays down that if the intestate's father is living, he shall succeed to the property. S. 43 lays down that if the intestate's father is dead, but the intestate's mother is living and there are also brothers or sisters of the intestate living and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares. S. 48 lays down that where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him. None of these provisions contain any limitation based on religion. If it was the intention of the Parliament when enacting the Indian succession Act, to exclude from succession persons of non-Christian denomination or religion, that important circumstance and fact would have found place in the Act itself. On the other hand, a careful reading of the various provisions of the Act shows that succession or a right to succeed to the property is dependent on relationship and consanguinity. It is not disputed that if the pleas of the defence are negatived , the plaintiff would be the nearest heir entitled to succeed to the estate of the late Thomas. &quot