KM RAKHI Vs. IST ADDITIONAL DISTRICT JUDGE FIROZABAD

JUDGEMENT

(1.) The order dated 22nd March, 1996 passed by 1st Additional District Judge. Firozabad in Misc. Appeal No. 65 of 1995 affirming the order dated 16th 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 Section 21 of the Code of Civil Procedure. Since the trial court had come to an adverse 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 Section 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 years. 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 aboard in that event, such application is to be filed within the Jurisdiction where the properly 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 Courts below did not have jurisdiction in view of Section 371 of the Indian Succession Act.

(3.) Mr. A.S. Diwakar, learned counsel for the respondents on the other hand contends that the petitioner having not taken this objection in the written statement and no issue having been framed on the question of jurisdiction, mere raising the question at the time of argument and adverted thereto by the trial court would not take away the case outside the scope and purview of Section 21 of the Code of Civil Procedure. According to him, such objection is to be taken before the issues are settled and there should be issue framed in order to enable the parties to adduce sufficient evidence. Unless such issue is framed in as much as it springs surprise to the defendant on a question which could not be met by leading sufficient evidence. He then contends that the deceased did not ordinarily resided at Kanpur. Admittedly, his office is at Allahabad where he was posted. He had been at Kanpur for the purpose of his treatment. A place, where a person stays for the purpose of getting himself treated, cannot be treated to be a place of his ordinary residence. Admittedly, the deceased was a railway employee whose service was transferable and he had been transferred from place to place. In the office record, he had given his permanent address at Firozabad. Therefore, in such case, he was a resident of Firozabad where he ordinarily used to reside, though he had been at Kanpur at the time of his death for the purpose of treatment. Therefore, the same would not affect the jurisdiction of the Court. Therefore, the petition filed by her at Firozabad was very much maintainable. With regard to the objection relating to Section 379 Mr. Diwakar contended that the provisions therein are not mandatory. In as much as, it was not a court fee payable on the application. The deposit is made only to meet the expenses of the court fee to be affixed on the certificate only after it is granted. Therefore, the provision contained therein cannot be treated mandatory. According to him, it is only to secure the payment of stamp duty for issuing the certificate after the Succession Certificate is granted. This is apparent from the scheme of Section 379 of the said Act. Therefore, according to him, the non-deposit of the amount equivalent to stamp duty payable on the certificate would not vitiate the proceedings. In case he fails to deposit the stamp duty in that event, the certificate may not be issued. Unless a certificate is issued, the grant of certificate would not enable the applicant to receive the estate. He then contends that there is no perversity either in the order of trial court or in the order of the lower appellate court. On the other hand, the conclusions reached at are based on sufficient materials and thus, this has become concurrent finding of fact with which this Court is slowly to interfere while exercising revisional jurisdiction. He further contends that even if on the basis of materials a reasonable man would come to a conclusion one or the other way in that event, it cannot be said to be perverse. It is perverse only when a reasonable man cannot come to a conclusion on the basis of material available or that there was no material available. It is not a case where no material was available. He had led me through the judgment of the Court's below and pointed out that there was no perversity. Even if, this Court is of a different opinion still then it cannot interfere with the said finding which has assumed the characteristic of a concurrent finding unless the Court is of opinion that there is perversity. In the absence of perversity in the present case, there is no scope of interference. On these grounds, he prays that the revision be dismissed.