Allahabad, Calcutta and Bombay High Courts in Brij Bihari Mishra & Ors. v. Vijai Shanker Mishra, AIR & Ors.
Case at a glance
Outcome
Disposed of
of the matter, this appeal is disposed of with the
Provisions considered
- Indian Succession Act, 1925 s. 383(3)
- Code of Civil Procedure, 1908 s. 11
Judgment
The Hon(cid:146)ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Shri G.C.Gupta, Sr. Advocate, with Mr. Deepak Gupta, Advocate. For the respondent Mr. G.D.Verma, Sr. Advocate, with Mr. Romesh Verma, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the appellant who was the objector before the learned trial Court in a petition seeking cancellation of the succession certificate issued in favour of respondent late Shri Shital Singh now represented by the respondents. The learned Court dismissed the petition on the ground that counsel had not been able to show the provision under which such a petition was maintainable. This observation cannot be treated as a finding in law. Section 383 (3) of the Indian Succession Act, 1925 (hereinafter referred to as (cid:145)the Act(cid:146)) provides for 1 Whether Reporters of Local Papers are allowed to see the judgment?
Yes. - 2 - revocation of a succession certificate which was obtained by means of untrue allegations etc. It reads: The case made out by the petitioner herein was that he was related to the deceased and was as such entitled to object to the grant of succession certificate to the estate of the deceased. Merely issuing notice to the general public was not sufficient and then there had been suppression of facts etc. Learned counsel appearing for the respondents submits that the appeal filed by the appellant herein is not maintainable. In particular, he refers to the decisions of the Allahabad, Calcutta and Bombay High Courts in Brij Bihari Mishra and others v. Vijai Shanker Mishra and others, AIR 1991 Allahabad 236, Mulukh Raj Sharma v. Raj Narain Sharma and others, AIR 1957 Calcutta 687, Ahmed Ebrahim Vorajee v. Government of the Province of Bombay, AIR (30) 1943 Bombay 50 and Prem Chand v. Sunil Kumar and others, 1990 All.
L. J. 806 to submit that rejection of an application for revocation of succession certificate issued under the Act is not an appellable order. Learned counsel appearing for the appellants refers to the decisions of the Madhya Pradesh High Court in Smt. Savitri Devi v. Smt. Manorma Bai and others, AIR 1998 MP 114, Gaya Prasad Bhoi and another v. Loknath Budhia Bhoi and another, AIR 1996 Orissa 44, and Mrs. S. Misra alias S. Lazarus v. Sm. Mangala Kumari Devi, AIR (33) 1946 Patna 415 to urge that that such an appeal is in fact maintainable. Without going into this - 3 - question, one other fact may be noticed and that is that the respondent claims succession to the estate of the deceased Smt. Dwarku Devi on the basis of a will which has been set aside by the trial Court and an appeal is pending against this judgment before the learned District Judge. In case the will as executed is held to be a valid by the District Judge, the entire controversy will be put to an end unless of course this decision is set aside in appeal or other proceedings.
Operative part
In this view of the matter, this appeal is disposed of with the direction that the findings of the learned Court below refusing to entertain the petition of the appellant herein shall not be a bar to the appellant contesting the proceedings with respect to the grant of a decree of declaration or any other proceedings based on the basis of the will set up by late Shri Shital Singh. Even otherwise, any decision under Section 373 of the Act granting succession certificate cannot be construed as a resjudicata under Section 11 of the Code of Civil Procedure. (See Madhvi Amma Bhawani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others, (2000) 6 SCC 301). This appeal is accordingly disposed of. There shall be no order as to costs. Pending application(s) shall stand disposed of. March 31, 2009 (PC). (Dev Darshan Sud), J.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: of the matter, this appeal is disposed of with the
Which statutory provisions did this judgment involve?
Indian Succession Act, 1925 — s. 383(3); Code of Civil Procedure, 1908 — s. 11.
Which court decided this case, and when?
Himachal Pradesh High Court, on 31 Mar 2009. The bench was DEV DARSHAN SUD.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.