Bawa Ram Kamal Das vs Bodh Raj Gupta and another

S. Murtaza Fazl Ali, C. J.

This is an appeal against an order of the District Judge Poonch dated 29-8-1970 by which he has granted succession certificate to the

respondents Sanatan Dharam Sabha and Bodh Raj Gupta. The appellant filed an application for grant of succession certificate in respect of Rs.

15,000/- lying in the Saving Bank Post Office Rajauri in the name of Bawa Rughnandan Dass Bairagi Manager of a temple known as

Thakurdawara Nihala Shah. The appellant claimed to be the duly initiated Chela of the deceased and was therefore entitled to succeed to the

property left by him. The appellant did not make anybody party to his application but when a notice was published the respondents appeared and

filed their objections through Shri Ved Swarup Vakil. The objectors contended that the appellant was an imposter and was not the Chela of Bawa

Rughunandan Das. They further contended that the amount of Rs. 15.000/- really belonged to the temple and could not be disbursed to the

appellant. The learned Judge examined a large number of witnesses on both sides and after a careful consideration of the evidence found that the

appellant Bawa Ram Kamal Das was an imposter and the real claimant was Bodhraj in whose favour he issued the succession certificate.

When this matter came up to this court in the first instance, by our order dated 29-4-1971 we remanded the case to the D. J. for giving a finding

regarding the question as to whom the property in dispute belonged. The learned Judge, after hearing the parties and taking such evidence as was

adduced before him, has sent his report in which he has found that there is over-whelming evidence to prove that the amount in question was

accumulated by the deceased Bawa Rughunandan Das from the income of the property of the temple.

At the time of arguments, Mr. Kotwal appearing for the appellant submitted two points before us. In the first place he argued that the court

below had no right to embark on an inquiry into the rights of the contending parties, and even if he was of the view that the appellant was an

imposter, he should have rejected the application and had no power to grant a certificate to the respondent objector. Secondly it was argued that

in a summary inquiry held for the purpose of granting succession certificate it was not open to the Court to go into the question of the title of the

property. But in the view we take in this case the second point does not arise for consideration at all. Section 7 of the Succession Certificate Act

runs as follows:-

(1) If the District Court is satisfied that there is ground for entertaining the application, it shall fix a day for the hearing thereof and cause notice of

the application and of the day fixed for the hearing-

(a) to be served on any person to whom, in the opinion of the court, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the court house and published in such other manner, if any, as the court, subject to any rules made

by the High Court in this behalf, thinks fit

and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2) When the court decides the right thereto to belong to the applicant. it shall make an order for the grant of the certificate to him.

(3) If the court cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for

determination in a summary proceeding, it may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the

best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the court that more than one of such applicants are interested in the

estate of the deceased, the court may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in

other respects of the applicants.

A perusal of the various sub-clauses of this section would clearly reveal that the object of the legislature is that when an application for grant of

succession certificate is made, not only a special notice of the application should be given but the notice should be published in such manner as the

court may think fit. The object of publication of the notice is naturally to ascertain the objections against the claim put forward by an applicant so as

to avoid the certificate being granted to an imposter. Further Section 7 (1) (b) clearly lays down that the court has to hold a summary inquiry with

respect to the right to the certificate. Thus the argument of the learned counsel for the appellant that the court had no jurisdiction to hold a summary

inquiry into the right or the claim put forward by the appellant is not correct .................. Not only this, but

Section 7 (4) of the Act clearly lays down that when there are more applicants than one, the court has the power to decide as to whom the

certificate should be granted. This sub-section therefore clearly empowers the court to decide even the question of the right to receive the

certificate as between the petitioner and the objectors. It is true that under sub-section (3) the court cannot decide intricate questions of law

relating to the right to the certificate.

In the instant case the District Judge after a summary inquiry which was of an elaborate nature came to a finding of fact that the appellant was

not entitled to a succession certificate, being an imposter, and that the real claimant was the respondent Bodh Raj in whose favour the certificate

was issued. We, therefore, see no reason to accept the contention of the appellant that even if it be held that the respondent Bodh Raj was the

rightful claimant, the court should not have issued a certificate in his name, Mr. Kotwal relied upon a decision of the Allahabad High Court in

Mathura Prasad Vs. Shriman 108 Rawal Sahib of Shri Kedar Nath, , 305 and referred to the following observations therein:-

In my judgment the Succession Act does not contemplate the case of a person applying for a certificate, even though he claims that the property in

respect of which he applies belonged not to the deceased person but to himself. Indeed, in this case we have the instance of a person succeeding

to himself which obviously cannot be contemplated by the law. Learned counsel for the opposite party contended that the succession certificate

was concerned only with the right of collection and not with any question of title to the property. The simple answer to that argument is that it may

be concerned only with the right to collect but that right must relate to the property of a deceased person and not to the property of the applicant

himself. I am therefore, of the opinion that in this case the opposite party misconceived his remedy.

In this case the court clearly held that the opposite party had not proved his claim to the property. Secondly in that case the objector tried to put

forward the claim that the property did not belong to the deceased but to himself. This is not the case here where the claimant admits that the

property belonged to the late Mahant as Manager of the temple. The case cited by the learned counsel is clearly distinguishable. On the other hand

there is a string of authorities e.g. AIR 1937 196a (Lahore) and Smt. Ganga Dei and Others Vs. Smt. Munia, wherein it has been clearly held that

the court has the power to determine the rights of the parties to get the certificate and that it would be fully justified in granting a certificate to an

objector if he is held to be the rightful claimant.

For these reasons there does not appear to be any force in this appeal which is dismissed with costs.

Jaswant Singh, J.

I agree.