FEROZ DIN Vs. CH AKHTAR HUSSAIN

JUDGEMENT

(1.) THE dispute in this appeal pertains to the property of one Phaian who is stated to have died on the night of 6/7th August, 1976. Respondent, Akhtar Hussain, made an application for grant of succession certificate in his favour in respect of an amount of Rs. 13066.50 lying in the Jammu and Kashmir Bank, Jammu, in the name of the deceased Phaian under account No. 084166. He based his claim on the ground that the deceased had executed a will in his favour appointing him as a sole heir entitled to inherit his property. On receipt of the application the District Judge published a notice in the newspaper. In response to the newspaper it appears only one person namely Allah Rakha son of the deceased Phaian appeared before the District Judge and prayed that the respondents application be dismissed. Subsequently the objector, Allah Rakha, seems to have chosen not to object to the grant of certificate in favour of the respondent. What the respondent did was that in support of his application he filed a copy of the will and produced three witnesses namely Siraj Din, Ahmad Din and Hussain Mohd to prove his case. On over -all assessment of the evidence the District Judge came to the conclusion that the respondent was the sole heir of the deceased, Phaian, and therefore granted the certificate prayed for in his favour. It is this order of the District Judge which has been assailed in this appeal. I have heard the learned counsel for the parties at length and have also gone through the record of the case.

(2.) MR . Sethi appearing for the appellant has taken the following grounds in this appeal : -(1) There had been no compliance with the mandatory provisions of Section 7 of the Succession Certificate Act, hereinafter referred to as "the Act", (2) the certificate had been granted not on the basis of the original will but on the basis of a copy thereof and (3) the statements of witnesses in support of the respondents case were stereotyped and did not inspite any confidence of the court.

(3.) MR . Tirath Singh appearing for the respondent, on the other hand, has tried to defend the order on the grounds that the appeal is not competent as before coming up in appeal to this court the appellant should have exhausted other remedies provided under other provisions of the Act. In this connection he has made a pointed reference to Section 18 of the Act and submitted that no appeal is competent unless the appellant first made an application to the District Judge issuing the certificate for revocation of the same on any one or more of the grounds mentioned therein. Mr. Singh has then argued that there had been sufficient compliance with the provisions of Section 7 of the Act inasmuch as a notice had been published in newspaper and the District Judge was not to make a very comprehensive enquiry into the case but could have granted certificate on the basis of a summary enquiry alone.