Shyam Sundari Devi @ Sunita Devi vs Rajkishore Singh @ Rajkishore Prasad

This Civil Revision u/s 115 of the Code of Civil Procedure, 1908 is directed against the order dated 5-6-1992 passed by the learned Additional District Judge-11, Patna converting the proceedings for grant of Succession Certificate into a title suit.

It appears that Smt. Shyam Sundari Devi (since deceased) filed an application u/s 372 of the Indian Seccession Act. 1925 (hereinafter referred to as the Act) before the District Judge. Patna for grant of Succession Certificate to realise the debts and shares, mentioned in Annexures A and B, of her father. It is alleged that she is the only legal representative of the deceased and as such is entitled to get the Succession Certificate as prayed for.

Opposite party Raj Kishore Singh filed objection claiming that Smt. Shyam Sundari Devi was not the daughter of the deceased Shivandan Prasad and that he himself was the deceased''s adopted son. Subsequently he moved an application for converting the Succession Certificate proceedings into Title Suit.

Smt. Shyam Sundari Devi while denying the claim of the Opposite party contended that there was no provision under the Act for converting Succession Certificate proceeding u/s 372 of the Act into a Title Suit.

However, the learned Additional District Judge-II, Patna, to whom the case was transferred, after hearing both the parties allowed the application of the opposite party on 5-6-1992 and directed for converting the Succession Certificate case into a title Suit. Being aggrieved the Applicant has filed this Revision.

During the pendency of this application the sole Applicant died and her legal representatives were substituted by the order dated 5-1-1996.

Heard learned counsel for the Applicants. None has appeared on behalf of Opposite party despite service.

Learned counsel for the Applicants contended that there is no provision under the Act for converting Succession Certificate Case into a Title Suit. According to the learned counsel for provision for converting a case into a Title Suit is contained in Section 295 of the Act but Section 295 relates only to the cases of probate and letters of administration and not to the case of Succession Certificate.

We find substance in the submissions of the learned counsel. A plain reading of Section 295 of the Act would show that only proceedings for probate or letters of administration can be converted into a regular Title Suit. Section 295 has no application for grant of Succession Certificate. This being so, the Court below exercised jurisdiction not vested in it by law in converting succession case into a title suit. The order of the Court below is wholly illegal and liable to be set aside.

Before parting with the case we wish to indicate the procedure which ought to have been followed in such a case by the Court below. Section 373 contains the procedure which has to be followed by the learned District Judge for deciding a case for grant of Succession Certificate. Sub-sections (1) and (2) of Section 373 contain the procedure for grant of Succession Certificate in the cases where there is no contest. On the other hand Sub-sections (3) and (4) prescribe the procedure for deciding contested cases and counter claims. In view of the fact that the opposite party had filed objection contesting the claim of Shy am Sundari Devi for grant of Succession Certificate, this case would be covered by sub-sections (3) and (4) of Section 373.

Section 375 contains the procedure to be followed by the District Judge in the cases covered by sub-sections (3) and (4) of Section 373 which read thus:--

"375. Requisition of security from a guarantee of certificate. (1) The District Judge shall in any case in which he proposes to proceed under Sub-section (3) or Sub-section (4) of Section 373, and may, in any other case require as a condition precedent to the granting of a certificate that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties or other sufficient security for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities.

(2) The Judge may on application made by petitioner and on cause shown to his satisfaction and upon such terms as to security, or providing that the money received be paid into Court, or otherwise as he thinks fit assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge of the Court and to recover, as trustee for all persons interested, such amount as may be recoverable thereunder".

In the result, the revision succeeds and is allowed. The order dated 5-6-1992 of the learned 2nd Additional District Judge, Patna is set aside and he is directed to decide the pending Succession Certificate case expeditiously in accordance with law. No order as to costs.