SITA DEVI Vs. SITA DEVI ALIAS BHUNESHWARI DEVI

JUDGEMENT

(1.) This civil revision application is directed against the order dated 17-9-2002 passed by Subordinate Judge I, Katihar, in succession case No. 10 of 2000 by which the Court below has rejected the application filed under Section 10 of the Code of Civil Procedure (hereinafter to be referred to as the 'Code') praying, inter alia, to stay the proceeding of the aforesaid succession case until disposal of succession case No. 2 of 2000 pending in the Court of Subordinate Judge, Begusarai, on the ground that in the aforesaid two succession cases parties as also the prayer is similar to grant the succession certificate in regard to the estate of Late Hari Shankar Pandit, the subsequent succession case No. 10 of 2000 pending in the Court of Sub-Judge-I, Katihar, should remain stayed until disposal of succession case No. 2 pending in the Court of Sub-Judge, Begusarai. Before proceeding to consider the challenge made to the aforesaid order it is necessary to mention a few basic facts leading to the passing of the impugned order. Petitioners herein, filed succession case bearing No. 2 of 2000 under Section 372 of the Indian Succession Act, 1925 (hereinafter to be referred to as the 'Act') in the Court of Subordinate Judge, I, Begusarai on 14-1-2000 stating, inter alia, that they were the wife, son and other heirs and legal representatives of Late Hari Shankar Pandit who last resided at Lohiyanagar, Begusarai, and, as such, the Court of Subordinate Judge, I, Begusarai, has territorial jurisdiction to consider the relief prayed for in the succession case and to grant the succession certificate in favour of the petitioners. The petition/plaint of the aforesaid succession case has been enclosed with this civil revision application and the same is marked as annexure-1 to this application. While the said succession case bearing No. 2 of 2000 remained pending at Begusarai, the petitioners, herein, learnt that another succession case No. 10 of 2000 has been filed by the Opp. Party in the Court of Subordinate Judge, Katihar, on 29-4-2000, stating, inter alia, that they were the heirs and legal representatives of Late Hari Shanker Pandit who ordinarily resided at T. V. Centre, Dumri Khal, Katihar, within the territorial jurisdiction of the Subordinate Judge, I, Katihar, and, as such, succession certificate in regard to his estate should be granted to them. The plaint/petition of the said succession case No. 10 of 2000 has been enclosed with this civil revision application and is marked application and is marked as annexure-2 to this application. The petitioners having learnt of the succession case No. 10 of 2000 filed an objection petition through petitioner No. 2 on 10-5- 2000 and contended that the said succession case was not maintainable. Having filed the said objection petition they continued to watch the proceedings of succession case No. 10 of 2000 of Subordinate Judge, Katihar, as it appears from the order sheet of the said from the order sheet of the said case contained in Annexure-'A' to the counter-affidavit filed on behalf of Opp. Party in this case. In due course, the petitioners, herein, filed a petition in Succession Case No. 10 of 2000 under Order 1, Rule X of the Code on 27-4-2001 praying, inter alia, that they are the wife and the offspring of late Hari Shankar Pandit and they should be impleaded as party in the succession case. The application of the petitioners for impleadment in succession case No. 10 of 2000 was allowed under Orders dated 8-6-2001. Once the Subordinate Judge, Katihar, allowed the petitioners' application to implead them as party in the succession case they, thereafter, filed written statement on 17-8-2001 refuting the claim of the opposite party herein for grant of succession certificate in regard to the estate of late Hari Shanker Pandit and further prayed that being the wife and the other class-I heirs of late Hari Shankar Pandit should be granted succession certificate. Copy of the written statement is annexed as annexure-B to the counter-affidavit. Perusal of the written statement indicates that the petitioners having refuted the claim of the opposite party desired the Katihar Court to consider their claim and grant them succession certificate in regard to the estate of late Hari Shankar Pandit. Having filed the written statement, annexure-'B' the petitioners even filed a petition dated 4-1-2002 under Order XVIII, Rule XVI of the Code before the Subordinate Judge, Katihar, praying, inter alia, to permit them to examine Laxmi Devi, mother of late Hari Shankar Pandit as special witness on account of her advanced age and deteriorating health. After the petitioners were impleaded as party in the succession case pending in the Court of Subordinate Judge Katihar and they filed their written statement the hearing of the succession case was taken up and witnesses were examined/ cross-examined by the parties. During the hearing of the succession case while examination/cross-examination of number of witnesses were completed and few other witnesses were still to be examined, the petitioners, herein, on 26-7-2002 filed a petition to stay the proceedings in the succession case pending at Katihar Court on the ground that jurisdiction matter in regard to the grant of succession certificate of the estate of late Hari Shankar Pandit was being heard and considered by the Subordinate Judge, Begusarai. They, however, pressed the stay petition when they were called upon to cross-examine opposite party No. 1, who was the eighth/last witness on behalf of opposite party. The Subordinate Judge, Katihar, under the impugned order rejected the petition to stay the proceedings in the succession case at Katihar as by then seven witnesses had already been examined/cross-examined.

(2.) In support of this application learned counsel for the petitioners has submitted that late Hari Shankar Pandit having last resided at Lohiyanagar, Begusarai, the Begusarai court only has the jurisdiction under Section 371 of the Act to consider and grant succession certificate in regard to his estate. In this connection, he referred to paragraph 8 of the plaint/petition of succession case No. 2 of 2000 which is contained as annexure-1 to this civil revision application. With reference to Section 371 of the Act learned counsel further submitted that late Hari Shankar Pandit ordinarily resided at Lohiyanagar, Begusarai, and, as such, instant case is covered by opening Clause of Section 371 of the Act and it is the Begusarai Court which has the only jurisdiction in the matter and the Katihar Court committed jurisdictional error when it refused to stay the proceedings pending before it for grant of succession certificate in regard to the estate of late Hari Shankar Pandit. In support of the argument that the case is covered by the opening Clause of Section 371 learned counsel for the petitioners placed reliance over the two judgments of Madras High Court in the case of Krishna Mmal v. R. Laxmi Ammal, AIR 1951 Mad 535 and in the matter of Mohana Prakasam, AIR 1975 Mad 30.

(3.) Learned counsel for the opp. party, however, refuted the aforesaid submissions and contended that the opposite party was serving as constable in the Government Railway Police, Katihar, and, as such, he ordinarily resided at T. V. Centre, Dumri Khal, Katihar, his emoluments are payable by the Superintendent of Railway Police, Katihar, and, as such, the Katihar Court has the jurisdiction to grant succession certificate in regard to the estate of late Hari Shankar Pandit. In this connection, he referred to the averments made in the plaint/petition of succession case 10 of 2000, as contained in annexure-2 to this civil revision application. In support of the aforesaid submissions learned counsel for the opposite party relied on a judgment of the Allahabad High Court in the case of Rameshwary Devi v. Rajbali Sah, AIR 1988 All 68. With reference to the case of Rameshwary Devi (supra) learned counsel submitted that at the time of his death Hari Shankar Pandit ordinarily resided at T. V. Centre, Dumri Khal, Katihar, his emoluments are payable at Katihar, as such according to him, only Katihar Court has jurisdiction in the matter as in the case of Rameshwari Devi (AIR 1988 All 68) (supra) also the deceased served and emoluments were payable by the Hindustan Steel Limited, Bokaro Steel City in the district of Dhanbad and taking that aspect into account the Allahabad High Court refused to entertain the request for grant of succession certificate and directed the party to approach the court of competent jurisdiction at Bokaro in the district of Dhanbad. Learned counsel further submitted that the petitioners having come to learn of the succession case number 10 of 2000 filed and pending at Katihar they appeared in the Katihar Court and, not only objected to the request of the opposite party to grant succession certificate but also specifically requested the Katihar Court in the written statement, annexure-'C', that the succession certificate in regard to the estate of late Hari Shankar Pandit should be granted to them. They further appeared in the proceedings before the Katihar Court on day to day basis submitted to its jurisdiction and also actively participated in the proceedings by cross-examining the witnesses. The petitioners having acquiesced to the jurisdiction of the Katihar Court it was wholly inappropriate on their part to resort to the provisions contained in Section 10 of the Code arid to request for the stay of the proceedings of the succession case at this belated stage when examination/cross-examination of most of the witnesses of the opp. party herein is over before the Katihar Court. In this connection, learned counsel referred to Section 21 of the Code to point out that objection in regard to the jurisdiction is required to be taken at the earliest, in any case, before the hearing begins and, as such, in view of the provisions contained in Section 21 of the Code itself the prayer to stay the proceedings at Katihar was wholly improper and contrary to law. In support of this submission Learned Counsel has placed reliance over the case of Koopilan Unees daughter of Pathumma v. Koopilan Unees son of Kuntalan Kutty, AIR 1981 SC 1683. Perusal of the judgment of the Hon'ble Supreme Court in the case of Pathumma (supra) indicates that objection in regard to the jurisdiction is required to be taken in the court of first instance and at the earliest possible opportunity and in cases where issues are settled at or before such settlement, all the aforesaid ingredients must co-exist then only objection in regard to jurisdiction is required to be entertained. Placing strong reliance over the judgment of Pathumma (supra) learned counsel for the opp. party further submitted that as the petitioners, herein, have not only filed their objection/ written statement in the Katihar Court praying, inter alia, to reject the case of the opp. party but have also prayed for grant of succession certificate to them and have further participated in the hearing inasmuch as several witnesses have already been cross- examined by them their objection in regard to jurisdiction has no merit and the proceedings at Katihar Court should be allowed to be continued in accordance with law.