Kaushalya Devi vs Amrawati and Others

G.C. Garg, J.—This revision petition which has chequered history is directed against the order dated August 29, 1922 whereby proceedings pending in Court for grant of succession certificate have been stayed.

Bhagwant Rat Sharma was employed as J.B.T. teacher in Government High School, Jamani and resided in village Pillukhera in District Jind where he died on July 30, 1988. The petitioner claiming herself to be the widow of said Bhagwant Rai Sharma filed a petition under Sections 371 and 372 of the Indian Succession Act (for short ''the Act'') in the Court of learned Senior Sub Judge, Jind on October 26, 1988 wherein claim was laid to the general provident fund, gratuity and other pensionary benefits admissible on account of death of her husband late Bhagwant Rai Sharma, Learned Senior Sub Judge decided the matter by order dated February 1, 1989 directing the issuance of succession certificate in her favour. Before the said certificate could be issued. Amrawati, respondent No. 1 herein, resident of Chatha Sekhwan, Tehsil and Distt. Sangrur and Shakuntla Devi daughter of Amrawati moved an application u/s 383 of the Act for revocation of succession certificate ordered to be issued in favour of Kaushalya Devi, the present petitioner. It was alleged by them that they had moved the Court of learned Senior Sub Judge, Sangrur for grant of succession certificate on the death of Bhagwant Rai Sharma claiming themselves to be the widow and-daughter respectively, of the said deceased, and that the Court at Sangrur granted succession certificate in their favour on a petition filed by them which was earlier in point of time to the petition filed by Kaushalya Devi in Jind. Amrawati also moved an application u/s 10 of the CPC in the Court of Senior Sub Judge, Jind for stay of proceedings as succession certificate had already been granted in her favour by the Court at Sangrur on May 17, 1989. It may also be noticed that Kaushalya Devi also moved a petition u/s 383 of the Act in the Court at Sangrur for revocation of succession certificate issued in favour of Smt. Amrawati and another. In the circumstances, an application u/s 10 of the Code was pressed into service on the ground that proceedings at Sangrur were launched earlier m point of time and, therefore, the proceedings at Jind where the matter is directly and substantially the same, be stayed being subsequent to the proceedings initiated at Sangrur. Learned Senior Sub Judge. Jind finding that the property as also the parties to both the petitions are the same and that admittedly, the petition was filed earlier in point of time at Sangrur concluded that general provisions of Section 10 of the Code would come into operation and consequently, stayed the proceedings at Jind and the file was ordered to be consigned to the record room and to be taken up after the decision of the petition pending at Sangrur. Aggrieved by this order of the Senior Sub Judge, Kaushalya Devi has filed the present petition.

Learned Counsel for the petitioner submitted that a queer situation has arisen in the present proceedings. It was pointed out that the petitioner did not implead Amrawati and Shakuntla in her petition filed in the Court of Senior Sub Judge, Jind and similarly, Amrawati and Shakuntla did not implead Kaushalya Devi as party to the petition filed by them at Sangrur. Kaushalya Devi did not oppose the grant of succession certificate in favour of Amrawati and Shakuntla and similarly, Amrawati and Shakuntla did not oppose the grant of succession certificate in favour of Kaushalya Devi. The reason seems to be that both the parties were ignorant of the proceedings against each other. Learned Counsel for the petitioner relying upon the provisions of Section 371 of the Act, submitted that the jurisdiction to grant a succession certificate is with the Court where the deceased ordinarily resided at the time of his death and in case he had no fixed place of residence, the jurisdiction is with the Court within whose jurisdiction any part of the property of the deceased may be found. According to the learned Counsel, Bhagwant Rai Sharma died in District Jind while serving in this very district and the property in respect of which the succession certificate is claimed, is also in District Jind. In the circumstances, learned Counsel for the petitioner pointed put that it is the Court at Jind which had the exclusive jurisdiction to consider and decide the question as to the grant of succession certificate. Learned Counsel further pointed out that the deceased had no property in respect of which succession certificate claimed, in District Sangrur nor did he reside at the time of his death in District Sangrur and, therefore, the Court at Sangrur had no jurisdiction to grant the succession certificate and the succession certificate granted by the Court at Sangrur is wholly without jurisdiction.

Learned Counsel for the parties have been heard at length.

The Court at Sangrur as also the Court at Jind had granted succession certificates relating to the claims made by the respective parties which apparently are common, namely, the pensionary benefits. In law, such a situation cannot be allowed to exist. There can be only one succession certificate in respect of the claim made by the legal representatives of a deceased. It could not at all be disputed that the property in respect of which succession certificate is claimed, is available in District Jind and that Bhagwant Rai Sharma died in District Jind. Thus, apparently, it is the Court at Jind which has the jurisdiction to grant the succession certificate and not the Court at Sangrur. Amrawati and Shakuntla have already filed a petition u/s 383 of the Act for revocation of the succession certificate granted in favour of Kaushalya Devi and the matter is still pending adjudication though the file has been ordered to be consigned to the record room by the order under revision. Above being the situation, learned Counsel for the parties ultimately agreed that let the two succession certificates, one granted by the Court at Sangrur and the other by the Court at Jind be treated as cancelled and the matter be ordered to be decided afresh by the Court at Jind after hearing both the parties and let the succession certificate be granted in favour of the persons who are ultimately found entitled to. Both the parties claim to have documents in their respective possession to support their claim, namely, to be the widow of Bhagwant Rai Sharma deceased. It is not necessary to go into this matter as it is primarily for the Court considering the grant of succession certificate to see as to who is entitled to the grant of succession certificate. In the circumstances, while exercising my power u/s 115 of the Code read with Article 227 of the Constitution of India, I revoke the succession certificate granted by the Court at Sangrur in favour of Amrawati and another and similarly I also revoke the succession certificate granted by the Court at Jind in favour of Kaushalya Devi and direct the Court of Senior Sub Judge, Jind to decide the matter afresh after hearing the petitioner and the respondents herein, in accordance with law, as expeditiously as possible as the matter has already taken more than five years for disposal. Consequently, the application moved by Amrawati and another u/s 383 of the Act for revocation of succession certificate granted in favour of Kaushalya Devi is rendered infructuous as also the application moved by her u/s 10 of the Code for stay of proceedings pending in the Court of Senior Sub-Judge, Jind. The matter for grant of succession certificate thus, stands revived in the Court of Senior Sub Judge, Jind. The parties through their Counsel have been directed to appear in the Court of Senior Sub Judge, Jind on December 20, 1993 and the Senior Sub Judge, Jind will proceed with the matter and dispose of the application for grant of succession certificate, filed by Kaushalya Devi in accordance with law in the light of the observations made above.

There is yet another aspect of the matter. Kaushalya Devi is recorded to be the nominee in the nomination form meant for the general provident fund of the deceased Bhagwant Rai Sharma and also in the pension case. Bhagwant Rai Sharma died a few months before his retirement. Kaushalya Devi is also recorded as nominee to receive the amount of gratuity. Therefore, in view of the judgment of the Supreme Court in Smt. Sarbati Devi and Another Vs. Smt. Usha Devi, , Kaushalya Devi petitioner is entitled to the amounts lying to the credit of said Bhagwant Rai Sharma in his general provident fund as also the amount admissible on account of gratuity. The department in which said Bhagwant Rai Sharma was serving, has not disbursed the amounts on the aforesaid two counts to Kaushalya Devi despite the fact that she is recorded as nominee of the deceased in respect of the said amounts. There was no justification whatsoever for the department to withhold these amounts in favour of the nominee irrespective of the fact that some litigation was going on between the parties for the grant of succession certificate. The grant of succession certificate was no hindrance in the way of the department to disburse the amounts to the petitioner. There may have been some justification to withhold other payments including family pension till the grant to succession certificate. Consequently, the authorities concerned (Director, Public Instructions, Haryana, Chandigarh) and (District Education Officer, Jind) and their subordinate functionaries are hereby directed to disburse the amount due on account of general provident fund and the gratuity to which deceased Bhagwant Rai Sharma, teacher, Government High School, Jamani was entitled to, in favour of Smt. Kaushalya Devi, petitioner. The petitioner present in Court has undertaken that she will put the entire amount to be received by her, in fixed deposit amount with some nationalised bank and will withdraw the same after the decision of the petition for grant of succession certificate if she is found entitled to. She is consequently directed to put the said amounts to be received by her from the Education Department, in fixed deposit in Nationalised Bank and inform the Court of Senior Sub Judge, Jind in that behalf. She is however, permitted to withdraw the interest on the amounts so deposited for her day to day maintenance. The said amount would ultimately be made available by the Court of Senior Sub Judge, Jind to the party who is found entitled to the grant of succession certificate in respect of the property of the deceased Bhagwant Rai Sharma.

With the above observations and directions this revision petition stands disposed of. No costs.