BHAGWAN DASS Vs. SHMT. NIRMAL KUMARI AND ORS.

JUDGEMENT

(1.) THE parties to this dispute are closely related, Madan Lal deceased was the son of Bhagwan Das petitioner. After the death of the farmer a dispute arose about the assets left by him. The learned trial Court granted a succession certificate in favour of Lal Bai mother of Madan Lal, Nirmal Kumari, his wife, Kumari Savita and Gopal Krishan, his daughter and son respectively, in equal shares. This order was passed by the learned Sub -Judge 1st Class under the Indian Succession Act acting as a district Court under the Act Feeling dissatisfied against the grant of this succession (sic) Bhagwan Dass father of Madan at deceased preferred an appeal before the learned District Judge. Alongwith the meme of Appeal an application under Section 5 of the Limitation Act for (sic) of delay was also fired. It was claimed therein that he had earlier been advised that the appeal lay before the High Court but when he approached Mr. Ishwari Parshad Markan Advocate he studied the law and advised him that the appeal was competent only in the Court of the learned District Judge. The petitioner claims that because of the inapt advice given by the counsel in the lower Court he could not file the appeal in time. The learned District Judge did not accept this explanation on the ground that the affidavit of the counsel in the learned lower Court has not been filed in support of the prayer for condonation of delay. The petitioner has come up in revision against the aforesaid order of the learned District Judge.

(2.) NORMALLY speaking I would have been liberal in condoning the delay in the circumstances explained by the learned counsel. However, when questioned Mr. Ishwari Parshad Markan, learned counsel for the petitioner informed me that the basis of the claim made by Bhagwan Dass petitioner was that he had himself advanced this amount to Madan Lal deceased and for that reason the latter was only a benamidar and Bhagwan Dass petitioner was its real owner who should have been granted the succession certificate in preference to the mother, wife, daughter and son, of the deceased. It is not disputed that Bhagwan Dass petitioner was not an heir under the Hindu Law Prima facie, when money is advanced by a person to another for whom he has natural love and affection the presumption in law is that one who advances money does not create a benamidar but makes an absolute gift in his favour. However, I do not wish to express any final opinion on this subject. It is not disputed that Bhagwan Dass petitioner can file a separate suit against the persons in whose favour the succession certificate has been granted for claiming the entire amount left by Madan Lal as benamidar In this situation I do not feel inclined to interfere with the discretion exercised by the learned District Judge in not condoning the delay at the instance of the petitioner who approached his court as an appellant. Nor am I satisfied that any manifest injustice has been done to the petitioner because of the order under revision. There is no force in this revision petition which is hereby dismissed.