Deity Laipakhangba Khoubomba vs Taorem Khomdonjao Singh

This is an appeal under section of the Indian Succession Act, against the order of the District Judge, Manipur, dated 1011958 direct respondent and directed the issue of the Successor 4958 directing the issue of Succession Certificate Certificate on 1011958.

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he order. This appeal memo and the application granting, refusing or revoking a certificate and that

the High. Court may, if it thinks fit by its order OB the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefore, to grant it accordingly, in supersession of the certificate, if any, already granted.

Thus, the powers of the High Court in appeal under Sec. 384 are not coextensive with the powers '' of appellate Court under the C. P. C. It is clear from a reading of the section that unless there was a contest before the District Judge between two or more persons as to who should be given the certificate and in the contest the District Judge on ; evidence before him decided as to who should get the certificate, the High Court cannot interfere in 1 appeal. There was no such contest before the District Judge and nobody contested the grant of the certificate after the service of the notice as required under Sec. 373. Thus, the only evidence before the District Judge was the evidence given by the respondent.

What the appellant now wants is that certain documents which he seeks to file in this Court should be received in evidence and the case should be sent back to the District Judge for a fresh hearing regarding the rival claims of the respondent and the appellant after setting aside the order of the District Judge, granting the certificate to the respondent. There is no such power of remand vested in the High Court under Sec. 384 of the Succession Act. The High Court can only declare the person to whom the certificate should be granted where there were rival claimants before the District Judge and that must be done on the evidence adduced before the District Judge.

(5) Where there was no such contest in the District Court and where the proceedings to obtain a certificate were defective in substance or the certificate was obtained fraudulently by the making of a false suggestion or by the concealment from the Court of something material to the case or where the certificate was obtained by untrue allegations of fact as contended by the appellant in appeal, the proper procedure for the appellant is to file an application under Sec. 383 of the Succession Act for revocation of the certificate.

There is no period of limitation for such an application as in the case of an appeal. When this was pointed out to the appellant''s learned Advocate,, has argument was that under Sec. 383 he can only get the certificate revoked at best and he cannot get a certificate himself and hence he has come by way of appeal. It seems ,to me that his remedy has been misconceived by the appellant and that he should first apply to get the certificate revoked and if he succeeds in that then he should file an application himself for the grant of a certificate to him.

He cannot come by way of appeal when he I was not a party at all before the District Judge, Further Sec. 387 of the Succession Act makes it dear that no decision under part X upon any question of right between any parties shall be held to bar the trial of the same question in any suit. Thus, the appellant could file a regular suit for the establishment of his right. It is not possible for we in this appeal without any evidence on the side of the appellant to hold that he should be preferred for an issue of a certificate as against the respondent. Thus, even on the merits the appellant has no case. The appeal is accordingly dismissed with the costs of the respondent.