MONICA BIBLI Vs. KAMAL SETH

JUDGEMENT

(1.) The short question involved in this case is whether Section 10 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is applicable to the proceedings initiated under Section 372 of the Indian Succession Act, 1925 (for brevity 'the Act') for obtaining a succession certificate.

(2.) Brief facts of the case are that the successor-in-interest of the petitioner Paramjit Kumar was impleaded as defendant in Civil Suit No. 313 of 1996 filed on 8-9-1995 seeking declaration to the effect that he was entitled to his share in FDRs of Rs. 30.000/-, Rs. 50.000/- and locker maintained at State Bank of Patiala, Sector-22, Chandigarh. Defendant-respondent No. 1 Mrs. Kamal Seth did not contest the suit and she was proceeded ex parte. She, however, filed a succession case bearing No. 17/30-4-98 under Section 372 of the Act for issuance of a succession certificate in respect of the same FDRs and locker mentioned herein above. The successor-in-interest of the petitioner contested the suit as well as succession case. The issues in both proceedings are similar, parties are the same and relief claimed in both the cases is also the same i.e. respective shares of the parties in the FDRs and locker. On that basis petitioner filed an application under Section 10 read with Section 151 of the Code for staying the trial/proceedings of the succession case during the pendency of the civil suit. The Civil Judge has dismissed the application by recording the following order : 'The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid in consistent findings on the matters in issue and the plaintiff cannot be allowed to file a subsequent suit during pendency of the previously instituted suit by splitting two causes of action simply to hood wink the applicability of Section 10, CPC. But by filing the present application, the applicant wants to stay the proceedings of the application petition for grant of succession certificate by the applicant/petitioner. The reliance has been given by the learned counsel for respondent titled as Sudershan Ram Bhasin v. Kamla Bhasin reported as 2002 (1) Rec Civ R 510 (Delhi High Court) wherein it has been held that the proceedings under the provisions of Indian Succession Act are summary proceedings before a Testamentary the said Court and while dealing with the said proceedings the said Court does not function as a Civil Court as it does while deciding a civil suit. The scope of a civil suit and the proceedings under the Indian Succession Act is quite different and therefore, the similarity of the question in the proceedings and the suit does not appear to be a valid ground for staying the proceedings under the provisions of the Indian Succession Act. Finding of the testamentary Court while disposing of the proceedings under the Indian Succession Act on the disputed question about the marriage of the respondent with the deceased Bakshi Ram Bhasin will not bind the Civil Court and the Court will be entitled to return its on the merits of the case in the suit for partition."

(3.) Mr. Ranjan Lohan, learned counsel for the petitioner has argued that the dispute involved in the Civil Suit No. 313 of 1996 is with regard to the same FDRs and lockers which are lying/maintained at the State Bank of Patiala, Sector-22, Chandigarh. He has further submitted that the parties to the suit as well as to the suecession case are same and even the issues framed in the civil suit as well as succession case are identical. On the basis of aforementioned submission, the learned counsel has contended that Section 10 of the Code would be applicable and the proceedings initiated by filing succession case No. 17 of 1998 being later in point of time are bound to be stayed.