SHAKUNTALA MITTAL Vs. SHYAMLAL

JUDGEMENT

(1.) This revision is directed against the order dated 19.1.2009 passed by the Civil Judge, Class I, Dhar in MJC No.8/06 whereby the application filed by the applicant under Order IX Rule 13 read with Section 151 of CPC has been rejected, because sufficient ground to revoke the order dated 4.7.2006 granting succession certificate in favour of the non-applicant/ revisionist has not been made out. It has further been observed that because the amount of the fixed deposit has already been received by the non-applicant however, the application has now rendered infructuous and the applicant is at liberty to file a civil suit, asking relief to set aside the succession certificate issued in favour of the non-applicant.

(2.) The facts in brief are that non-applicant had filed an application on 19.4.2005 under Section 372 of the Indian Succession Act (in short herein after be referred as "Act") for grant of succession certificate in respect to the fixed deposits of the amount Rs.3,06,000/-, which was in the name of deceased Ramchandra Agrawal. The deceased was the real brother of the non-applicant and died on 30.1.2005. He had kept the said amount in fix deposit with Shriram Transport Finance Company Ltd. (in short hereinafter be referred as the Company), which is one of the ancillary Company of Shriram Group of Companies, Manoramaganj, Indore. In the application it is stated, by the non-applicant that the deceased was unmarried and the respondent being real brother is the legal heir, hence entitled to get succession certificate. The Company has made the demand of the certificate to repay the amount of fixed deposit of deceased, however, it is necessary to produce it to the Company. On filing the application, it was registered as Succession Case No.8/2005. Initially at the time of filing of the application 'Sarva Sadharan' were joined as respondent, however the notice was published in the daily newspaper "Swadesh" on 6.5.2005 but none had appeared to object. Thereafter, non-applicant has filed the application seeking amendment, to join the present applicant and Mr. Satishchandra Mittal as party to the proceedings. In the amendment application it is averred that the Company has intimated him, that applicants are the nominees of the FDRs hence they are necessary party and may be joined as respondents. The trial Court allowed the said amendment application vide order dated 23.1.2006, and the present applicant as well as Mr. Satishchandra Mittal were joined, but their address has not been furnished by non-applicant, however, notice was issued by way of publication for their appearance on 20.3.2006. The date of appearance in Court as specified in notice was later on declared holiday, and the presiding officer was also on leave on the said date, however, the case was listed for further orders on 29.3.2006. On 29.3.2006 ex-parte was proceeded against the present applicant and case was fixed for recording evidence of the non-applicant on 22.4.2006. On that date statements of witnesses of non-applicant were recorded ex-parte, and the succession certificate was issued in favour of non-applicant vide order dated 4.7.2006. Being nominee of deceased when the applicant has contacted to the said finance Company then it has come to their knowledge, that on the basis of succession certificate granted by Court in favour of the non- applicant/Revisionist, the amount has been drawn by them. Thereafter applicant has filed an application under Order IX Rule 13 read with Section 151 of CPC on 3.8.2006, within the time as prescribed, seeking revocation of the said certificate, which was registered as MJC No.8/2006 and after recording the evidence, the trial Court has rejected it by the order impugned, however, having aggrieved by the order, applicant has filed this revision.

(3.) Learned counsel Shri Kale, appearing on behalf of the applicant has strenuously urged that the Court below has committed an error in rejecting the application to revoke the succession certificate, because the entire proceedings are defective as service of notice were not made effective to the petitioner despite joining them as a party on the request of non-applicant. It is submitted by him that at the time of joining the applicant and one Satishchandra Mittal, their residential address has not furnished to Court by non-applicant with mala fide intention, however, notices were directed to be issued by publication in the newspaper "Nai Duniya" of the fixed date I.e. 20.3.2006, which was declared as holiday, therefore, the case was fixed for further orders on 29.3.2006. On the said date applicant has been proceeded ex-parte, though the case was not listed for hearing, however, it is a case in which the proceeding to obtain succession certificate were defective in substance and the ground of revocation as specified under Section 383 (a) of the Act has been made out. It is further contended by Shri Kale, that the daily newspaper "Nai Duniya", in which the summons were published was not subscribed by the applicant, hence she was unaware of publication of summons of the succession case. Thus, the trial Court has committed an error to proceed ex-parte against the applicant and to grant the succession certificate in favour of the non- applicant. Learned counsel has placed reliance on Division Bench judgment of this Court in the case of Laxmi Bai - Keshrimal Jain -1995 MPLJ 105. While on the point of revocation of succession certificate, reliance has further been placed on the judgment of this Court in the case of Bablu Mandal Vs. Vandana Bhowmik -2008 (1) MPLJ 522. In view of the said it is contended, by Mr. Kale that in the said case probate was granted, and the application was filed for revocation under Order IX Rule 13 of CPC. The opponent by filing an application under Order VII Rule 11 of CPC requested to the Court for rejection of the application under Order IX Rule 13 of IPC as the provisions of Code of Civil Procedure having no application. The trial Court rejected such application of the opponent against which a revision petition was filed, wherein this Court has held that rejection of the application of the opponent by the trial Court is just and proper and the provisions of Order IX Rule 13 of CPC having its application. The Court has observed that under Section 263 of the Act wide powers are conferred to the Court for revocation or annulment of a grant of probate or letter of administration for the just cause. It is contended that the provisions for revocation of probate under Section 263 of the Act and revocation of succession certificate under Section 383 of the Act are peri materia, however, if the applicant has shown sufficient cause for revocation or annul of grant of succession certificate, the Court should not ordinarily reject such application, because of having a remedy to file a civil suit. In view of the said it is urged that the order impugned passed by the trial Court rejecting the application seeking revocation of succession certificate is against the Clause (a) of Section 383 of the Act. However, prayer is made to allow this revision and to set aside the order impugned passed by the trial Court