Asha vs Branch Manager, State Bank of Bikaner and Jaipur

Pratap Krishna Lohra, J.—Appellant, Smt. Asha, has laid this appeal under Section 384 of the Indian Succession Act, 1925 (for short, ''Act of 1925'') being aggrieved by the order dated 31st January, 2011, whereby the learned District Judge, Bhilwara has rejected her application under Section 372 of the Act of 1925 for issuance of a succession certificate.

The appellant preferred the application under Section 372 of the Act of 1925 before the learned District Judge (for short, ''learned trial Court'') for issuance of succession certificate in her name in respect of debts and securities in the form of fixed deposits worth Rs. 91,400/-and 21,224/- respectively with the first respondent-Bank. The entire edifice of the claim of the appellant rested on testamentary instrument allegedly executed in her favour by deceased Bhurbai widow of Shri Kishanlal Pareek, wherein she has bequeathed the aforesaid amount of fixed deposits in favour of the appellant. The learned trial Court issued notices to the Bank as well as to the general public by way of publishing the notices in newspaper, but nobody came forward to oppose the prayer made in the application for issuance of succession certificate. In support of her claim, the appellant appeared in the witness box and testified on oath and the requisite Will was also produced and exhibited. The learned trial Court after considering the matter by the order impugned has declined to issue certificate in the name of the appellant solely on the ground that there is no recital in the testamentary instrument that deceased Bhurbail is survived by her any of the legal heirs including her children. The learned Court below has also expressed doubts about the authenticity of the Will.

At the threshold, when the matter came up before this court on 11th January, 2012, notices were issued on application under Section 5 of the Limitation Act as the appeal is barred by limitation and notices for the main appeal were also issued. The order dated 11th January, 2012 reads as under:--

"Issue notice of application u/s. 5 of the Limitation Act as well as of misc. appeal.

Rule is made returnable within four weeks and notices may be given ''Dasti'' to learned counsel for the appellant.

Direct service permitted."

Learned counsel has not filed the complete notices, therefore, notices were not issued and pursuant to peremptory order, the appeal was dismissed, which was subsequently restored by the order dated 2nd August, 2013. On 22nd October, 2013, when the matter came up before the Court for consideration of IA, laid on behalf of the appellant under Order 5 Rule 20 CPC, the same was allowed. The order dated 22nd October, 2013 reads as under:--

"Heard on IA No. 13771/2012 filed by the appellant under Order V, Rule 20 CPC.

For the reasons mentioned in the application supported by affidavit, the same is allowed.

The appellant may publish the notice for the respondent No. 2 i.e. general public in daily newspaper having circulation at Bhilwara.

Notice be filed within a period of two weeks. On filing, the same be issued and given ''dasti'' to the learned counsel for the appellant."

Pursuant to the aforesaid order, notices were published in the newspaper but no-one came forward to oppose the prayer made in the application for condonation as well as the appeal. The Court, on consideration of the matter on 23rd September, 2014, condoned the delay and the record of the learned Court below was requisitioned.

I have heard learned counsel for the appellant, perused the impugned order and also scanned the entire record of the learned Court below.

Upon perusal of the impugned order, it is amply clear that the learned Court below has declined the prayer of the appellant solely on the ground that there is no proof about the fact that Ram Singh has passed away, who was owning the fixed deposits jointly with deceased Bhurbai. It is an admitted fact that wife of Ram Singh has submitted her reply through her counsel, wherein she has not opposed the prayer made in the application for issuance of succession certificate. The other reason is genuineness of Will allegedly executed by deceased Bhurbai.

While examining the matter for issuance of succession certificate for debts and securities on the strength of testamentary instrument the learned Court below has not recorded cogent reasons for declining the prayer of the appellant. The approach of the learned Court below in declining issuance of succession certificate on wholly technical pretext is per-se not tenable. On thorough evaluation of the impugned order, in my opinion, learned Court below has not thrashed out the matter in right perspective as per the provisions of Indian Succession Act, and therefore, the impugned order cannot be sustained.

In this view of the matter, the instant appeal is allowed and the impugned order is quashed and set aside. The matter is remanded back to the learned trial Court for its decision afresh in accordance with law. Record of the learned trial Court be remitted back forthwith.

It is expected that the learned trial Court shall decide the matter as expeditiously as possible preferably within a period of six months.