JHALA JAGATSINGJI FALJIBHAI Vs. JHALA AMARSING RAHULSA

JUDGEMENT

(1.) [His Lordship after observing the facts further observed.]

(2.) The material point that arises to be determined in this appeal is as to whether the heirs of deceased applicants have a right to claim any heirship certificate in this proceeding under the provisions of the Regulation by claiming to be substituted in place of the original applicant under the provisions contained in Order 22 of the Civil Procedure Code. Mr. Shahs contention was that the claim in the proceedings was a personal one inasmuch as they claimed to be the sole heirs to succeed to Rahubha on his death and the present heirs of those applicants claim now through the applicants and not directly as heirs of Rahubha. They cannot therefore be substituted in their place on their death to claim heirship certificate to Rahubhas estate in this proceeding. In support thereof he relied upon two decisions. The first case referred to by him is of Sm. Fatemanesha Begum and others v. Sk. Mahidin and others 48 Calcutta Weekly Notes 673. In that case on the death of one Abdul Raheman his sister Rokea Bibi claiming to be an eight annas heir of the deceased applied for the grant of a succession certificate so as to enable her to collect the debts and securities due to his estate. Before the grant could be made Rokea Bibi died. Thereupon her son applied to be substituted in her place in that proceeding. That request was opposed and the learned judge while granting the request observed that the right of the lady to get the assets or shares of the assets of the deceased on the basis of the succession certificate would be a barren right if it could not devolve on her heir. In an application in revision filed against that order the High Court observed that there is no question of devolution of any right to the estate of the deceased on the death of the applicant for a succession certificate. The grant of a certificate does not confer any right on the applicant to the estate of the deceased. Then they considered the question as to whether a right to apply for a succession certificate can be said to survive to the heir of the applicant and in that respect it was held that on the death of the applicant claiming for a succession certificate the proceeding lapses and it will be open to any other party entitled to a certificate to apply independently. There is no question of substitution in such cases. In other words the proper remedy for the son of Rokea Bibi was to file an independent application for the certificate if he was so advised. This decision came to be followed in a case of Deo Kumar Singh v. Kailash Singh A.I.R. 1961 Patna 304 and in similar circumstances it was held that the proceeding lapses and there can be no substitution of the heirs or the alleged heirs of the applicant.

(3.) As I said above it was with a view to meet this argument advanced by Mr. Shah that the learned advocate for the appellant presented an application referred to hereabove. By this application he wants an amendment to be made in the original application saying that they are the nearest heirs of the deceased Rahubba by reason of their being the heirs of deceased applicants. From this it will follow that they have no independent right whatever to claim heirship certificate by being called the heirs of deceased Rahubha and the only persons who claimed to be the heirs were the applicants through whom they claim on their death during the pendency of this appeal. They cannot therefore be substituted in their place in this proceeding. The application lapses with the death of applicants. The proceedings thus came to an end and if they have any right on the death of the applicants that may well be claimed in a separate proceeding. Mr. Mehta however urged that such proceedings either for succession certificate or for obtaining a probate on a will made by any deceased person are in the nature of representative proceedings and that therefore they do not lapse. The other persons interested in the property of any such deceased person have a right to come on record and on being substituted in place of the original applicants to have the certificate or the letters of administration as the case may be. He sought support for this contention from a case of P. Rama Naidu and others v. Rangavya Naidu and other A.I.R. 1933 Madras 114. In that case one Rama Naidu applied for probate of the will of the deceased. Certain persons entered a caveat and the proceeding became a contentuous one. The trial Court holding that the will has not been proved to be genuine refused probate. Against that order Rama Naidu preferred an appeal before the High Court and before that appeal could be heard he died. His sons were brought on record. An objection however was taken as to their legal competence to prosecute the appeal and in support of that objection a case of Sarat Chandra Banerjee v. Nani Mohan Banerjee I.L.R. 36 Calcutta 799 was relied upon. In that case a similar point had arisen. Pending the hearing the sole executor who had made an application for grant of a probate died and his widow and legal representative had applied to have her name substituted for his and to have the petition for probate amended by substituting a prayer for letters of administration with copy of the will annexed in place of the prayer for probate. The Calcutta High Court then held that the application must be refused as the right to sue had not survived and the suit had abated. In the judgment the observations were that the right which the present applicant (viz. the widow in that case) has is an entirely distinct one. She asks to be appointed to represent the deceased by the Court and claims no right derived from any appointment by the testator. This case was however not followed by the Madras High Court saying that certain aspect was not before that Court. What the Madras High Court thought was that the essence of such probate proceedings is that the applicant seeks to establish a will not for himself but as the representative of those who take benefits under it. If he fails in his duty say by reason of his death or otherwise any of those whom he represents may intervene to carry on the proceedings having in effect by representation through the executor being a party to the proceeding from the outset. It is on that basis that it was held that the sons of Rama Naidu were entitled to prosecute the appeal and obtain the letters of administration with the will annexed. It has to be noted that these were probate proceedings. In probate proceedings there is a finality in respect of that decision. At the same time in that case Rama Naidu besides being the executor was also the residuary legatee under that will. If the estate taken by the deceased executor was an absolute one his sons on his death became entitled to the legacy as his heirs; if so the other hand bequest was to be construed as conferring on him only a life estate the sons by reason of the words his male descendants would take the legacy in their own right. In either case as observed by the Madras High Court the sons of Rama Naidu were persons entitled to a benefit under the will. All that distinguishes the case before us wherein the heirship certificate is claimed and that claim was based by the original deceased applicant in this personal and individual capacity. They did not represent any other interest so as to entitle the present applicants to claim in any manner the heirship certificate to deceased Rahubha for after all the intervening heirs were on their own showing the original deceased applicants and they derived their interest on their death. The present applicants had no right whatever to intervene in these proceedings and the right to obtain heirship certificate claimed by the original deceased applicants consequently lapsed. The application shall thus stand rejected. Now since the proceeding lapses with the death of the deceased applicants the appeal against any order passed in that proceeding would also lapse.