SURAJ BHAN Vs. MURARI LAL

JUDGEMENT

(1.) In this appeal under section 384 of the Indian Succession Act against the order of Senior Sub Judge, Rohtak, the appellant son of a pre-deceased sister of Garib Ram, who died on July 9, 1967 at Chandpur, District Bijnaur, U. P , impugns the grant of succession certificate in favour of Murari Lal respondent on the basis of a Will executed by the said Garib Ram on October 11, 1961. The ground of challenge is two fold :-

(2.) In support of his first above noted objection the learned counsel points out that firstly in the application filed by Murari Lal respondent, it Is nowhere categorically stated that Garib Rangy deceased used to ordinarily reside within the jurisdiction of the lower Court and secondly, the witnesses examined by the respondent in support of his case, that is, P.W.1 to P.W. 4. have also not deposed that prior to his death Garib Ram used to live at Jhajjar. The contention of the learned counsel for the respondents on the other hand is that a reading of the application fired on his behalf in the lower Court on the whole does disclose that Garih Rain was ordinarily residing within the jurisdiction of the said Court and P. Ws. 1 to 4 have stated in categorical terms that Garib Ram had his property at Jhajjar and used to live there and only temporarily used to he away to Chandpur in connection with his business there. Besides this the learned counsel also contends that in view of the provisions of section 21, Civil Procedure Code, even if the contention of the learned counsel for the appellant is accepted for the sake of argument that the Lower Court had no territorial jurisdiction, still unless the appellant is in a position to make out a case of failure of justice he cannot possibly succeed on the above-noted ground.

(3.) After hearing the learned counsel for the parties at some length I do not find any merit in the submissions made by the learned counsel for the appellant. The witnesses examined by the respondents do say that though Garib Ram deceased had his business at Chandpur also, yet he used to go and stay at Jhajjar to which place he belongs. As per the evidence of these witnesses Garib Ram used to stay only in a Chauhara at Chandpur and had no regular residential house for his living. Reading the evidence as a whole I find that the same does not indicate that Garib Ram had his normal or ordinary place of residence at Chandpur. The learned counsel for the respondents again appears to he right in submitting that in the light of the provisions of section 21, Civil Procedure Code, unless the appellant is in a position to make out a case of failure of justice on account of this aspect of the matter, he cannot possibly succeed in this appeal. The learned counsel for the appellant, however, maintains that the provisions of section 21 of the Code are applicable to the proceedings under the Indian Succession Act This to my mind, is not the correct legal position. I have already held in F.A.O. No. 100 of 1980 (Brij Mohan Sharma v. General Public) decided on February 17, 1982 [reported in 1982 Marriage Law Journal 417 that on a combined reading of various provisions of the Act proceedings for the grant of a probate or a succession certificate have to be treated and equated to proceedings in a suit and the procedure governing those proceedings is as laid down in the Civil Procedure Code. Otherwise also even if for argument's sake the contention of tie learned counsel for the appellant to the effect that section 21 of the Code does not apply to these proceedings is to he still to my mind the principle embodied in this section would applicable to the proceedings under the Act. In this view of the matter and the fact that the appellant has not been able to make out any case to show any failure of justice, I repel this contention It is apparent from the record that all through the parties and more particularly the appellant', as conscious of this fact as to what facts are required to be proved in support of the issue which had been framed relating to the jurisdiction of the lower Court. The parties had full opportunity to lead evidence support of their respective cases and they fully availed of the same.