GAYA PRASAD BHOI Vs. LOKNATH BUDHIA BHOI

JUDGEMENT

(1.) Decision of learned District Judge, Sambalpur holding, that the appeal filed by the petitioners was not maintainable in terms of Section 384 of the Indian Succession Act, 1925 (in short, the 'Act') is the subject-matter of challenge.

(2.) A brief reference to the factual aspects is necessary for disposal of the application under consideration.Loknath Budhia, opposite party No. 1 in the present proceeding filed an application styled as one under Section 372 of the Act for grant of certificate in his favour to receive the amount mentioned in the schedule, claiming to be the son and legal heir of Kailash Chandra Bhoi (hereinafter referred to as the 'deceased'). The application was registered as Misc. Succession Case No. 25 of 1993 in the Court of learned Subordinate Judge (presently Civil Judge, (Senior Division), Sambalpur. Prior to the filing of application under Section 372 of the Act, an application had been filed before the Tahasildar, Lakhanpur for grant of a legal heir certificate wherein Claim was made that he was the adopted son of the deceased. Said application was dismissed the matter was carried in appeal but without any result. Subsequently the application under Section 372 of the Act to which reference has been made earlier was filed. The present petitioners claiming to be brothers of the deceased also filed an application for issue of legal heir certificate in their favour before the Tahasildar, Lakhanpur, and same was granted. In the proceeding before the learned Civil Judge, petitioners were not impleaded as parties. Prayer for grant of succession certificate was allowed by order dated 18-2-1994 in the aforesaid succession Misc. Case No. 25 of 1993. When the petitioners learnt about grant of such certificate, they filed an application styled as one under Section 383, of the Act with a combined prayer for revocation of the certificate issued and for grant of certificate in their favour. Learned Civil Judge (Senior Division), Sambalpur, who dealt with the application rejected the same on the ground that the application for revocation was not tenable. There was no specific finding regarding the claim of grant of certificate in favour of the petitioners. The order was assailed in appeal before the learned District Judge, who by the impugned order refused to entertain the appeal with the conclusion that the same was not maintainable as it did not come within the ambit of Section 384 of the Act.

(3.) Mr. S. K. Mund, learned counsel for petitioners submitted that the learned District Judge proceeded on erroneous premises by merely going by nomenclature of the petition before the learned Civil Judge (Senior Division), and the substance and essence of prayers. Though the petition was styled as one under Section 383 of the Act, it contained two prayers, namely, one for revocation in terms of Section 383 and the other for grant of certificate in terms of Section 372 of the Act. Though in the first paragraph of the order, the learned Civil Judge referred to nature of prayer made, while adjudicating the petition no reference was made to the prayer relating to grant of certificate. Since the petition was a combined one, the appeal in terms of Section 384 is maintainable.