GEETA CHOUDHARY Vs. ANAMIKA TIWARI

JUDGEMENT

(1.) This revision is directed against the order dated 13-7-2006, passed in Misc. Civil Appeal No. 80/2005, by the 9th Addl. District Judge, Jabalpur, arising out of order dated 30-9-2005, passed in Succession Case No. 29/2005 by the 15th Civil Judge, Class-I, Jabalpur, whereby the succession certificate has been granted to the respondents and the objection filed by the petitioners have been rejected. Facts giving rise to filing of this revision are that one Bhawani Prasad Tiwari was having landed property at Jabalpur. He was succeeded by his widow Smt. Premkanti Tiwari, daughters and only son Satish Tiwari. The daughters, the petitioners herein executed a general Power of Attorney in favour of their brother, namely, Satish Tiwari, authorising him to enter into an agreement with a builder and promoter for the purposes of demolition of the bungalow belonging to the family, construction of multi storied building, the shops and residential flats, enter into the agreement for the purposes of letting out the constructed building to the tenants and realising of the rent. Consequent upon execution of the general Power of Attorney, said Satish Tiwari entered into an agreement with the builder and promoter, building was constructed and the same was let out. The rent of shops and flats was being collected by said Satish Tiwari and was being depositing in the account in M.P. Rajya Sahkari Bank. Said Satish Tiwari died leaving behind the respondents No. 1 to 4 as legal representatives. The amount from the bank account was earlier withdrawn by said Satish Tiwari, but at the time of the death of Satish Tiwari, an amount of Rs. 1,10,000/- was credited in the said bank account.

(2.) The respondents moved an application under section 372 of the Indian Succession Act (hereinafter referred to as the Act for short) for grant of a succession certificate for the purposes of withdrawal of the amount credited in the account of said Satish Tiwari in the aforesaid M.P. Rajya Sahkari Bank. Initially in the application only Smt. Premkanti Tiwari was made the party respondent along with General Public. However, the petitioners made the objection in the said proceedings contending that the amount deposited in the aforesaid bank account was not the sole property of said Satish Tiwari and, in fact, it was belonging to the joint Hindu family. There was no partition amongst the member of the family and, therefore, unless an apportionment is done, succession certificate for the withdrawal of the whole of the amount deposited in the bank could not be granted in favour of the respondents only. The objection was rejected, a succession certificate was granted by the Succession Court in favour of said respondent. Therefore, an appeal was preferred in the lower appellate Court under section 384 of the Act. The said appeal has been dismissed by the impugned order, therefore, this revision is required to be filed.

(3.) It is, vehemently, contended by learned counsel for the petitioner Shri R.K. Verma that such an order could not have been passed by the Court below when it was amply proved that the amount credited in the bank account of said Satish Tiwari was not his sole property, but was the property of joint Hindu family. It is pointed out by the learned counsel for the petitioner that admittedly Satish Tiwari was having no source of income as was admitted by his widow, therefore, the periodical deposits made in the said account was nothing but the rent amount of the building which admittedly was constructed on the strength of a general Power of Attorney on the land belonging to the joint Hindu family. The right to transfer the said property was never conferred nor it was made clear that the other joint family members have relinquished their right of claiming any interest in the joint Hindu family property. It was not proved that the amount deposited in the account was sole income of said Satish Tiwari and, therefore, the succession certificate was not to be granted in such a case. It is contended that where such disputed facts were required to be examined, instead of granting the succession certificate, the Courts below were required to pass the orders that such disputes were to be decided first and then only the claim for grant of succession certificate could be made. It is also contended that by granting a decree in a suit brought by Abhishek Tiwari, the respondent No. 3 herein, a decree of partition is already passed and that being so, the Courts below were not right in passing the order of grant of succession certificate to the respondents. Thus, it is contended that the orders impugned are bad in law and are liable to be set aside.