NOOKA RAJU K Vs. K VISHNUMURTHY

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order passed in A.S. No. 27 of 1991 by the learned III Additional District Judge, Kakinada. The order directing issue of Succession Certificate by the learned III Additional District Judge, Kakinada, is challenged in this Revision Petition.

(2.) . The grounds taken by the petitioner (Judgment-debtor) are briefly stated as follows:- That the execution of Will-Ex.A-1 alleged to have been executed by late Akkayamma was not genuine and the same was not proved beyond any reasonable doubt; That the evidence of R.W.1 to the effect that the 1st respondent never looked after late Akkayamma during her life time as also the allegation that the testator suffered from paralysis before her death and was not able to see or speak or to do any work, was not taken into consideration by the appellate Court; That there was discrepancy in the evidence deposed by P.W.I inasmuch as P.W.I deposed in his examination-in-chief that Akkayyamma was able to do her work when the Will in question was allegedly executed, but in his cross-examination he deposed that she was ill prior to her death; That the Court below ought to have seen that the burden of proof lay upon the 1st respondent to prove the execution of the Will-Ex-A-1; That the failure to examine the Medical Officer with regard to the physical capacity of late Akkayyamma vitiated the case advanced by the decree holders; That the lower Court should not have believed the evidence of P.Ws.2 to 4 who deposed that Akkayyamma gave the fixed deposit receipts to the Scribe-P.W.4 at the time of execution of the Will-Ex-A1, however, the number of the Fixed Deposit Receipts and the number of the Savings Accounts were not mentioned and that there was also a discrepancy regarding the Fixed Deposit Receipts and the amounts mentioned therein; and That the 1st respondent was not closely related so as to believe that Akkayamma was looked after by the 1st respondent but it was the petitioner who was looking after Akkayamma and both were operating joint account.

(3.) . In my opinion, the entire approach to the case both by the parties to the proceedings as well as the learned Judge of the trial Court and the learned Judge of the Appellate Court was wholly misconceived. The distinction between testamentary disposition and intestate succession has not been considered at all. Part VI of the Indian Succession Act, 1925 (for short the Act) mainly deals with the testamentary succession, where as part V of the Act deals with the intestate succession. The necessity of obtaining a Succession Certificate under the provisions of the Act would arise only in cases where no Will is executed by a person for disposition of the property owned by him. If the Will is executed, the provisions of the Part VI of the Act relating to testamentary disposition are required to be invoked. In that view of the matter, therefore, in a case where proceedings for obtaining Succession Certificate are initiated, it is immaterial whether any disposition in respect of their property is attempted to be made or not. The person in whose name the Succession Certificate is issued does not acquire any ownership right of the property in question merely by issuance of a Succession Certificate. The existence of a Will, therefore, is totally irrelevant in the proceedings initiated for obtaining a Succession Certificate. The conclusion arrived at by the learned Dist. Munsif, Pithapuram that the petitioner was not entitled to Succession Certificate on the ground that the execution of the Will was not proved and the finding reversed by the 1st appellate Court by holding that the propounder of the Will succeeded in proving the Will which made him eligible to obtain Succession Certificate itself is a clear indication of the misconception on part of both the Courts below .