LAWS(ALL)-1976-7-4

PARMAL SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION MEERUT

Decided On July 09, 1976
PARMAL SINGH Appellant
V/S
DEPUTY DIRECTOR OF CONSOLIDATION, MEERUT Respondents

JUDGEMENT

(1.) THESE two connected petitions arise out of a dispute in consolidation proceedings relating to certain Khatas situ ate in different villages, but the main points which arose in these cases were eventually decided by the Deputy Director of Consolida tion. Hence, both these writ petitions can be disposed of by a com mon judgment. " 'Writ Petition No. 7681 of 1972 shall, however, be treated as the leading case. In that case the controversy related to the inheritance of Vakram Singh deceased, the recorded tenant of the Chaks in dispute. Respondent No. 3, viz., Smt. Sureshwati, claimed inheritance of the property of Vikram Singh on the ground that she was his widow. The other claimant was the petitioner, Parmar Singh, who according to the admitted pedigree, was the deceased's father's brother's son. His contention was that Smt. Sureshwati was the widow of Mahabir, the real brother of deceased Vikram Singh, but she did not remarry Vikram Singh. On the other hand, the case of Smt. Sureshwati was that after the death of Mahabir Singh she married Vikram Singh, the elder brother of Mahabir Singh who was a bachelor at that time. The Consolidation Officer rejected the claim of Smt. Sureshwati and held that she did not remarry Vikram Singh. In appeal, however, the Settlement Officer of Consolidation set aside the' order of the Consolidation Officer and held that Smt. Sureshwati had 'remarried Vikram Singh and she had proved herself to be a widow of the deceased Chak holder Vikram Singh and as such be ing 'the preferential heir was entitled to mutation in place of the de- ceased. The present petitioner Parmal Singh preferred three revi sions against the appellate order but the same were dismissed by the Deputy Director of Consolidation. It is the appellate and the revisional orders which have been challenged by the petitioner in Civil Misc. Writ No. 7681 of 1972. One circumstance which has considerably weighed with the Consolidation authorities and also loomed large in the proceedings before them is the effect of orders passed by the civil court in certain proceedings under the Indian Succession Act. It appears that after - the death of Vikram Singh Smt. Sureshwati applied for a succession certificate with respect to some deposits of the deceased in bank ac count. The application was contested by the present petitioner The First Civil Judge, Meerut in Misc. Case No. 59 of 1969 by his judgment dated July 28, 1969 found that the applicant had proved herself to be the widow of Vikram Singh deceased and was, there fore, entitled to the succession certificate for the amount deposited by the. deceased. The same judgment was upheld in appeal by the order of the Addl. District Judge, Meerut dated November 18, 1969 in Misc. Civil Appeal No. 207 of 1969. Sri A.B. Saran, learned counsel for the petitioner assailed the judgment of the Deputy Director of Consolidation on the ground i1 that it was based on an erroneous view of law, that the decisions rendered by the Addl. District Judge and the First Civil Judge in proceedings consequent on the application for succession certificate were not binding on the parties and, in fact, the Deputy Director of Consolidation failed to exercise his own discretion and apply his mind to the evidence adduced by the parties and arrive at his independent findings. Learned counsel for the respondents, on the other hand, has countered this argument by submitting, firstly, that both parties having contested the same issue in proceedings under the Indian Succession Act, were bound by the judgment given in that case, and secondly, that at all events the Deputy Director of Consolidation had not mechanically adopted those judgments but had recorded his own findings. I, therefore, propose to deal with these two submissions. There is no manner of doubt that a decision given in proceed ings commenced on the basis of a finding for issue of a succession certificate cannot be conclusive and surely the court in such proceed ings which are of a summary nature cannot go into other questions such as title. The decisions given in such proceedings are merely intended to have the effect of acting as a discharge of the liability of the debtors and only in that limited respect those judgments are binding but in a regular suit between the parties to those summary proceedings the judgments tendered therein would not operate as res judicata. It is open to the parties to have their respective title determined in a regular suit or proceedings before a competent court. Section 337 of the Indian Succession Act expressly provides that no decision under this Act upon any question of right between any par ties shall be held to bar the trial of the same question in any suit or in any other proceeding between, the same parties. The precise effect and implication of the decision given in the proceedings for issue of a Succession Certificate is laid down by Section 381 of the Indian Succession Act. It says that the certificate of the District Judge shall, with respect to the debts and securities specified therein, for conclusive as against the persons owing such debts or liable on such securities and shall afford full indemnity to all such persons as re gards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. In other words, the grant of a certificate gives to the grantee a title to recover the debt due to the deceased, and payment to the grantee is a good discharge of the debt. The person who is granted a certificate acquires a conclusive title to recover debts due to the deceased and if anybody refuses to pay debts to him, he acts wrongly and as such must pay interest. His action would be illegal. Nevertheless the two sections read together make it abundantly clear that the grant of a certificate does not establish the title of the grantee, it only clothes him with the authority to collect the debts and allow the debtors to make payments to him without incurring any risk In fact, it does not even establish the right of the grantee otherwise. The only effect of the certificate is that it compels the debtor to pay the debt to the certificate holder and is conclusive to that extent. Any legal consequence beyond what has been mention ed above cannot be spelt out of the succession certificate granted to the petitioner. Such judgments are final so far as the question of fanimus probandi' is concerned, but with regard to the question of title and determination of rights of the parties they are not binding or res judicata. In fact, those matters are outside the jurisdiction of the courts dealing with proceedings under the Indian Succession Act. This view of law has been consistently upheld in a large num ber of judicial decisions. In a Division Bench decision of the Lahore High Court in Murli Das v. Achut Das A.I.R. 1924 Lah. 493 it was laid down that no decision given in a succession certificate case upon any question of right between any parties is a bar to the trial of the same question in any suit between the same parties. I am unable to hold that the plea of res judicata relied upon by the respondents can with any justification be applied to the ins tant case. None of the fundamental ingredients or principles under lying Section 11 of the Code of Civil Procedure can actually be held to be satisfied by a decision rendered in succession certificate pro ceedings. It is of the essence of the doctrine of res judicata that the parties in the two cases must be litigating under the same title and the two courts should be co- ordinate courts, i.e., both should be com petent to grant the same nature of relief. It is obvious that while instituting proceedings under the Indian Succession Act for grant of a succession certificate the parties did not contest on the question of title. As I have already observed, such question is outside the ju risdiction of those proceedings. Secondly, the courts while passing orders under the Indian Succession Act in those summary proceed ings are not competent to give the relief which can be claimed by the parties in a regular suit. The nature and the ambit of the two kinds of proceedings is entirely distinct. Therefore, the argument that the orders obtained by Smt. Sureshwati in her favour in a pro ceeding for grant of a succession certificate would be res judicata is wholly misconceived. In Bhearry Lall Sanyal v. Juggo Mohum Gossain I.L.R. (4) Cal. 1 it was ruled that it was not the province of the court to which the applica tion is made to go into the questions of title with reference to the property of which the will purports to dispose. The grant of probate does not prejudice the rights of any person who claims any such pro perty. The same principle would apply to the grant of succession -A certificate and Section 273 of the Indian Succession Act is analogous to Section 281 of that Act. In Mst. Jigri Begam v. Syed All Nawab 5 Cal. W.N. 494 it was observed that the succession certificate only authorised the grantee to collect the debt but did not establish the right of the grantee to the debt. In Ram Saran v. Gappu Ram 33 I.C. 603 it was observ ed that the grant of a certificate does not establish the title of the grantee as the heir of the deceased but only furnishes him with an authority to collect the debts and allow the debtors to make payments to him without incurring any risk. In Nandeshwar Mahadeoji v. Mt. Munni A.I.R. 1933 Oudh 84 a Division Bench held that probate proceedings did not purport to decide any question of title finally and any finding given on such question was not conclusive. Exactly the same principle would apply to a succession certificate. The same view with regard to the legal effect of grant of probate or succession certificate was upheld by a Division Bench of the Oudh High Court in a later deci sion in Raj Rani v. Dwarka Nath A.I.R. 1946 Oudh 193. Thus, no doubt can be entertained with regard to the proposition of law that the judgments given in proceedings for grant of succession certificate are not conclusive on the question of title and do not bind the parties in later proceedings. In the instant case there is another special reason which com pletely militates against the finality of the finding recorded in pro ceedings for grant of succession certificate. It is no doubt true that the learned Civil Judge and the District Judge in their orders re corded findings to the effect that Smt. Sureshwati had remarried Vikram Singh but the learned District Judge completely whittled down the effect of such findings by observing in the concluding part of his order: "Above all legal position about the right of inheritance also supports her claim to the issue of certificates of the court of the Hindu Succession Act and the heirs of the class I and II mentioned therein; she being brother's widow was entitled to inherit in preference to the objector, who was the son of cousin bro ther of Vikram Singh. I have, therefore, no escape from the conclusion that Sureshwati was entitled to the succession certi ficate in preference to the objector Parmal Singh." Thus, it is obvious that for the purposes of deciding the question-of grant of succession certificate it was immaterial as to whether Smt. Sureshwati was the widow of Vikram Singh or Mahabir Singh. In either case she was the preferential heir to the present petitioner Parmal Singh. Hence, the finding recorded in those proceedings about the remarriage of Smt. Sureshwati was incidental. In Arun-moyi Desi v. Mahendra Nath Wadedar I.L.R. (20) Cal. 888 if was held that the ap plication for letters of administration was not a suit properly so call ed, and that the finding on the construction of the will of the North Western Provinces, being incidental and for the purpose of deter mining the question of the representative title of the applicants* could not be regarded as concluding the plaintiff by res judicata from Obtaining a construction of the will in the suit brought by her. In that view of the matter also the judgment given in the proceedings Under the Indian Succession Act would not be res judicata. The only question which now remains to be decided is as to whether the attack on the impugned order of the Deputy Director of Consolidation, which implicitly adopted the judgment in the succes sion certificate proceedings, is otherwise well-founded. I have care fully perused the order under challenge which has been placed be fore me by the counsel for the parties. I am of the opinion that the Deputy Director of Consolidation wholly abdicated his function and refrained from applying his own mind to the evidence adduced by the parties and come to his own finding. He was all the time so much obsessed by the judgment given by the District Judge in the proceed ings under the Indian Succession Act that he thought that it was a final and conclusive judgment of a competent court and he had, therefore, no jurisdiction to differ from the same and decide the case independently. I am unable to find any indication in his order of his attempt to evaluate the evidence for himself. This kind of me chanical adoption of the judgment rendered in summary proceedings under the erroneous notion of law that the same had the effect of res judicata was manifestly illegal and the impugned order cannot be sustained. Needless to say that the question of title which was dis puted by the parties and which could be finally decided only in such regular proceedings as a suit had now only one forum for final ad judication and that was before the Consolidation authorities. Section 48 of the U.P. Consolidation of Holdings Act gives a right to the re visionist to canvass vital questions of fact and law before the revisional authority which is competent to satisfy itself with regard to the correctness, legality or propriety of any order passed by a sub ordinate authority in consolidation proceedings. Therefore, if a De puty Director of Consolidation fails to apply his mind to questions of fact and law canvassed before him by the revisionist and. disposes of the case on an erroneous notion that he is bound by some judgment given in some other proceeding, it follows that there has been a miscarriage of justice, This is precisely what has occurred in the instant case. For these reasons I allow this writ petition with costs and quash the order dated October 19, 1972 (Annexure C to the writ petition) passed by the Deputy Director of Consolidation. The case shall be sent back to the revisional authority concerned for disposing of the revisions afresh after hearing the parties on the material and evidence already on record.