RAJMATA GAYATRI DEVI Vs. DISTT JUDGE JAIPUR CITY

JUDGEMENT

(1.) THE petitioner in this writ petition seeks to challenge the order dated 11/5/2007 passed by the District Judge, Jaipur City, Jaipur thereby rejecting her application filed on 26/4/2007. This application was filed by the petitioner in the pending proceedings under Section 372 of the Indian Succession Act, 1925 (hereinafter referred in short as the "act") which in fact was jointly filed on 20/2/1998 by the petitioner, Rajkumari Lalitya and Rajkumar Dev Raj, respondents No. 2 and 3, respectively for issuance of Succession Certificate with regard to properties of late 'maharaj' Jagat Singh who died on 5/2/1997. When notices of the petition under Section 372 of the Act were issued, other legal representatives of late 'maharaj' Jagat Singh namely; Maharaj Prithvi Singh and 'maharaj' Jai Singh admitted to the claim of the aforementioned three applicants to inherit estates of late 'maharaj' Jagat Singh in equal proportion. Yet another brother 'maharaj' Bhawani Singh objected to the same. Subsequently, however, he also by written application withdrew his objection and 'maharaj' Bhawani Singh subsequently also submitted an application stating that he would have no objection to succession certificate being granted in favour of all three applicants viz. the petitioner, respondent No. 2 and respondent No. 3 herein. In fact, statement of the petitioner Rajmata Gayatri Devi was recorded on 26/4/2006 in which, she admitted the right of the respondents, son and daughter of late 'maharaj' Jagat Singh, to inherit the estates of their father in equal share along with her. THE petitioner thereafter filed an application before the court of District Judge on 11. 5. 2007 thereby seeking to withdraw her admission made before that court in her statement recorded on 26. 4. 2006 on the premise that she has now discovered a will executed by her son late 'maharaj' Jagat Singh on 23. 6. 1996. She moved another application before the court of District Judge through her power of attorney holder on 20. 5. 2006 with the prayer that succession certificate be now issued only in her name alone. Two brothers of 'maharaj' Jagat Singh, namely, 'maharaj' Prithvi Singh and 'maharaj' Jai Singh also filed application before the court on 24/5/2006 resiling from their earlier stand and seeking to withdraw the no objection/consent filed by them for granting succession certificate in favour of the three applicants. It is in the backdrop of these facts that the petitioner filed an application u/s. 276 of of the Act before the Court of learned District Judge on 3/7/2006 inter-alia for grant of letter of administration. In view of contest between the parties, it was directed by the court vide its order dated 12/1/2007 that application should be decided as a suit. In that view of the matter, the petitioner through her power of attorney holder moved application before the court that proceedings of the application under Section 372 should be stayed to await the decision of the proceeding under Section 276 of the Act. THE learned District Judge rejected the said application vide order dated 11. 5. 2007, which is subject-matter of challenge in the present writ petition.

(2.) I have heard Shri G. K. Garg, learned counsel for the petitioner and Shri D. K. Malhotra, learned counsel for the respondents.

(3.) RESPONDING to the judgment cited by the learned counsel for the petitioner in Smt. Roopa Bai supra, with regard to validity of Section 213 of the Act on the ground of discrimination, it was argued that he has not brought to the notice of the court any decision rendered by the Larger Bench. Relying on the judgment of the Supreme Court in Clarence Pais and others Vs. Union of India : AIR 2001 SC 1151, Shri D. K. Malhotra, the learned counsel for the respondents argued that the Supreme Court in that case negatived the argument of discrimination. Shri D. K. Malhotra, learned counsel for the respondents while relying on the judgment of the Supreme Court in Madhvi Amma Bhawani Amma & Ors. Vs. Kunjikutty Pillal Meenakshi Pillai & Ors. : AIR 2000 SC 2301 further argued that Supreme Court while considering the provisions of Section 372 of the Act, held that proceedings of that Section for grant of succession certificate would not create a bar for any party to raise the same issue in a subsequent suit and that the decision in such succession certificate proceedings does not operate as res-judicata. Relying on the Division Bench's judgment of this Court in Balkishan and another Vs. Prabhu and others : AIR 1950 Rajasthan 27, learned counsel for the respondents argued that in that case also this Court in similar circumstances held that the plaintiff is entitled to succeed to the property of the deceased in case of intestacy and the defendant cannot defeat the plaintiff's right by merely saying that under a will of the deceased the property is bequeathed to him. Learned counsel for the respondents also relied on the judgment of Allahabad High Court in Smt. Pitmo Vs. Shyam Singh : AIR 1978 All. 301 in which it was held that a probate is not necessary for the establishment of a right under a will by a Hindu where the provisions of clauses (a) and (b) of Section 57 are not attracted and therefore Section 213 would have no application. Section 57 would be attracted only where Sections 212 and 213 apply. Shri D. K. Malhotra, learned counsel for the respondents also relied on the judgment of Supreme Court in Mrs. Hem Nolini Judah Vs. Mrs. Isolynelean Sarojbashini Bose & Ors. : AIR 1962 SC 1471 and argued similar argument as raised hereinabove, was also rejected in that case. Learned counsel for the respondents submits that when in the State of Rajasthan, the probate/letter of administration is not required to be obtained, the prayer seeking stay of the proceedings under Section 372 of the Act would rather seem too far off the mark. It was therefore submitted that the writ petition be dismissed.