YOG RAJ Vs. MAKUND LAL

JUDGEMENT

(1.) ONE Gain Chand is alleged to have died on 25 -8 -1985. On 28 -9 -1985, the appllant field an application under the Succession Certificate Act, 1977 (1920 A.D) for grant of a Succession Certificate in respect of the debts left behind by the deceased Gian Chand. On publication of notice etc., respondent No.3, Mst. Tulsi Devi appeared in the Court of District Judge Kathua where the application had been filed by the appellant and sought to object to the grant of Succession Certificate in favour of the petitioner on twin grounds namely (1) that she was the real sister of the decased Gian Chand and, (2) that the will on the basis whereof the appellant was claiming Succession was not a genuine document and that it had been forged by the appellant. Vide the impugned judgment dated 30 -11 -1990 passed by the learned District Judge Kathu whereas the appellants prayer for grant of Succession Certificate was disallowed, respondent no.3 was issued Succession Certificate in respect of the debts of deceased Gian Chand with permission to draw the amount in question on the condition of her furnishing an undertaking to the effect that she would deposit the amount in the Court if any other person was found entitled either partly or in whole to the amount in question.

(2.) THERE are two issues involved in the case. One pertains to that part of the judgment under appeal whereby the learned District Judge has held that the issue relating to the proof of the genuineness of the will involved intricate and complex questions of fact which were outside the purview and domain of the Court dealing with the limited question of grant of Succession Certificate under the Succession Certificate Act, 1977. This finding of the Court below is wholly unassailable and I find myself in complete agreement with the reasoning and the conclusions arrived at, in so far as this finding is concerned.

(3.) WITH regard to second part of the judgment however, whereby the learned District judge has granted the Succession Certificate in favour of respondent No.3 and permitted her to draw the amount against furnishing an undertaking, I must say the learned District judge has fallen in error in adopting this course of action. If he was unable to decide the question relating to the genuineness or otherwise of the will on the assumption and premises that such decision depended upon some intricate questions of fact, he should have left the matter at that and given a liberty to the parties to agitate the issue in a civil Court, if they so like. That was not only the logical corolary of the events but also the consequence of the approach adopted by the Court in refusing to act upon the will produced by the appellant. Rather than doing that however, the learned District Judge adopted an unusual course of permitting the respondent No.3 to draw the amount by granting Succession Certificate in her favour. This approach in my view was neither permissible under law nor warranted having regard to the facts of the case.