Shivkunwar vs Bhanu Prakash Singh

A.H. Khan, J.—This is an application u/s 384 of the Indian Succession Act from the judgment of the Additional District Judge, Rajgarh, refusing to grant a certificate of succession in Case No. 1 of 1959 to the Appellant.

The short facts out of which this appeal arises are that the Appellant, Her Highness Rajmata Shivkunwar, widow of his late Highness Arjunsingh, Ex-Ruler of Narsinghgarh, presented an application on 14-12-1959, u/s 372 of the Indian Succession Act for the grant of a succession certificate in respect 6f the property of Her Highness Maharani Dev Kunwar of Narsinghgarh, who lived in Narsinghgarh, but died in Bombay, where she had gone for treatment. This petition was opposed by His Highness Bhanu Prakash Singh of Narsinghgarh and Maharaj Surjan Singh. Without stating all other facts of the case, which is not necessary it is enough to state that one of the objections raised by the non-Petitioner was that Rajgarh Court had no jurisdiction to entertain the petition. The learned Additional District Judge holding that the parties did not adduce any evidence to show that the deceased''s ordinary residence was within the local limits of District Rajgarh and that the property in respect of which succession certificate was sought was not within the jurisdiction of the Court, dismissed the petition as being "not tenable". It is against this order that the present appeal is filed.

In her petition before the trial Court, the Petitioner had in the clearest possible terms stated that the deceased had gone to Bombay for treatment where she expired, and, that her ordinary place of residence was at Narsinghgarh within the local limits of Rajgarh Court. The first objection petition which was filed by non-Petitioner, H.H. Bhanu Prakash Singh on 24-6-58, no objection was taken about the jurisdiction. After the case had been going on in the Court for about two years, another petition dated 23-2-61 was presented by H.H. Bhanu Prakash Singh, containing more objections. In this second application, it was stated that according to the Petitioner, the deceased had died in Bombay and as such her ordinary residence at the time of death was not within the jurisdiction of the Court and that the property about which the certificate was sought was not situated within the jurisdiction of the Court. But visiting Bombay for treatment does not make Bombay a place where she ordinarily resided. To me it seems that the trial court was in a hurry to show disposal of old cases and in consequence dismissed the petition for the grant of a succession certificate perfunctorily.

I am sorry that before dismissing the application the learned Additional District Judge, Rajgarh did not give a moment''s thought to Section 371 of the Indian Succession Act which runs as follows:

The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.

This section enacts that the succession certificate is to be granted by the District Judge within whose jurisdiction the deceased ordinarily resided at the time of death and if at the time of death, the deceased had no fixed abode, then the District Judge within whose jurisdiction any part of the property of the deceased may be found.

In the instant case, it was definitely stated that the ordinary place of residence of the deceased was Narsinghgarh. In none of the two applications presented by the non-Petitioner, His Highness Bhanu Prakash Singh this allegation was traversed. In the first objection petition (dated 24-6-58) no plea was at all taken about jurisdiction, and, in the second objection petition (dated 23-2-61) it was suggested that because the deceased died in Bombay, so her ordinary place of residence was not within the jurisdiction of the Rajgarh Court. In other words it was suggested that this petition should be heard by a Court within whose jurisdiction the deceased died and not by the court where her ordinary place of residence was. But jurisdiction for the purpose of granting a certificate of succession is determined not by the place where a person dies, but by the place where the person ordinarily resided. The Appellant-Petitioner stated that the deceased ordinarily resided. In Narsinghgarh, and the fact having not been traversed, it ought to have been held that her ordinary place of residence was Narsinghgarh, and that the Rajgarh Court had jurisdiction.

The other ground on which the application was dismissed by the court below was that the property was not situated within the Court''s jurisdiction. According to the latter part of Section 371 of the Indian Succession Act, the question of the deceased''s property being within the jurisdiction of the Court only arises when the deceased had no fixed place of residence. The late Her Highness'' ordinary place of residence has been stated to be Narsinghgarh and therefore the latter part of Section 371 has no application.

I, therefore, hold that the Court which has jurisdiction to grant a certificate is the Court within whose jurisdiction the deceased at the time of her death ordinarily resided and that being Narsinghgarh, the Rajgarh Court has jurisdiction to entertain the petition.

For reasons stated above, I would allow the appeal, and holding that Rajgarh Court has jurisdiction to hear the petition, set aside the order and remand the case to Rajgarh Court which a direction to proceed further according to law.