RAKHI Vs. FIRST ADDL DISTRICT JUDGE FIROZABAD

JUDGEMENT

(1.) D. K. Seth, J. The order 22nd March, 1996 passed by Ist Additional District Judge, Firozabad in Misc. Appeal No. 65 of 1995 affirming the order dated 6th September, 1995 passed by the Civil Judge (Senior Division), Firozabad in Succession Case No. 74 of 1990 is under challenge in this Civil Revision.

(2.) MR. A. Y. Yadav, learned counsel for the petitioner had assailed the impugned order on the ground that the finding of both the Courts below suffers from perversity. The conclusions arrived at are based on no material. That apart he further contends that the Court which have granted the Succession Certificate did not have territorial jurisdiction. The learned Trial Court had overruled the said objection without adverting to the materials on record and the legal proposition. Whereas the learned Lower Appellate Court had referred to the said objection but did not decide the same nor it had adverted to the objection so raised. He further contends that though such objection was not taken in the written statement but yet the question was raised before the Trial Court and the Trial Court had entertained the said objection and had decided the same. Therefore, it would not hit by the mischief of S. 21 of the Code of Civil Procedure. Since the Trial Court had come to an adversed finding with regard to the territorial jurisdiction and the Lower Appellate Court did not advert to the same, the impugned order should be set aside and the matter should be remanded for fresh decision. He then contends that by reason of S. 379 of the Indian Succession Act, the application for Succession Certificate should have accompanied by a deposit of a sum equivalent to the Court fees payable on the certificate if granted. According to him, in the present case admittedly, no deposit was made along with the application. Therefore, there has been an infraction of Section 379 which is mandatory and as such the application could not be maintained. Elaborating his argument on the question of territorial jurisdiction MR. Ajay Yadav contends that Section 371 prescribes that such application is to be filed before the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death. In the present case, the deceased died at Kanpur and he was residing in Kanpur for last five year. Therefore, Kanpur was his ordinary residence at the time of his death. Therefore, the application could not have been maintained at Firozabad. Once a person ordinarily resides at the time of his death at a place then his permanent address in that event the place where he resided ordinarily at the time of his death would be taken to be the place where such application is to be filed. In such circumstances, the permanent address would become immaterial. According to him, if at the time of his death the deceased had no fixed place of abode in that event, such application is to be filed within the jurisdiction where the property or any part of it may be found. Thus according to him, if there is no ordinary place of residence at the time of his death in that event, the application could not have been filed at the placed of his permanent address. On these grounds, he claims that the impugned order should be set aside. Since both the Court below did not have jurisdiction in view of Section 371 of the Indian Succession Act.

(3.) SO far as the question of perversity is concerned, it is apparent that both the Courts below had come to the same conclusion. The findings have thus assumed the characteristic of a concurrent finding by two Courts. My attention had not been drawn to anything which can show that there was any perversity in the findings. Mr. Ajay Yada had relied on Annexure 9 to the revisional applciation which was a Deed of Adoption alleged to have been executed by the deceased and contends that this document was not allowed to be produced by the learned Trial Court and therefore, the petitioner could not rely upon the same. He further contends that the negatives of the photographs produced in the Trial Court, since been discarded, were also refused to be admitted into evidence. Therefore, though there were materials but those were not allowed to be put into records and as such the findings arrived at cannot be sustained. On the record, in does not appear that there was any attempt on the part of the petitioner to produce the negatives of those photographs or to call the photographer as a witness in the proceedings. Mr. Ajay Yadav has not been able to show that any such application was made before the learned Trial Court to allow him to issue notice or summons to the photographer for adducing evidence on his behalf nor he has not been able to show any record that any such application was made permitting him to adduce the negative or the documents contained in Annexure-9 in evidence in the Trial Court. He has also not contended that any application under Order 18, Rule 17-A of the Code of Civil Procedure was ever made.