Smt. Sridevi vs Vishambhar Dayal and Others

D.S. Sinha, J.—In respect of the debts and securities of her husband, Sri. Shiv Das Sharma, Smt. Sridevi, the Appellant, applied for grant of a succession certificate u/s 372 of the Indian Succession Act, 1925, hereinafter called the Act. The claim put forth in the application was in respect of the entire debts and securities due to the deceased husband of the Appellant. The Second Civil Judge, Kanpur, after investigating the claim of the Appellant, concluded that she was entitled to the grant of succession only to the extent of 1 /8th of her share and, therefore, by means of his order dated 8th December, 1982, directed the preparation of succession certificate in the name of the apoellant to the extent of l/8th of the debts and securities payable to her deceased husband.

The order dated 8th December, 1982, it appears, was acquiesced to by the Appellant and was not appealed against.

However, after lapse of a period of more than a year, i.e. on 1st March, 1983, the Appellant moved an application, u/s 383 of the Act read with the provisions of Section 151 of the Code of Civil Procedure, 1908, for modification of the succession certificate, already granted vide order dated 8th December, 1982, and to make the same in respect of the entire debts and securities of the deceased, Shiv Das Sharma, on the strength of certain Will dated 11th July, 1980. It appears that this application was in the nature of a review application. This application was rejected on 19th May, 1984. The order dated 19th May, 1984 too was allowed to become final inasmuch as the Appellant did not challenge the order.

Lateron, the Appellant filed another application urging the Court to set aside the order dated 19th May, 1984 whereby her review application was rejected. This application of the Appellant was rejected by an order dated 9th September, 1988.

By means of instant appeal the Appellant seeks to challenge the orders dated 19th May, 1984, rejecting her first review application, and 9th September, 1988, whereby her application, for recalling the order dated 19th May, 1984, has been rejected.

Sri. B.D. Mandhayan, learned Counsel for the Respondents, raises a preliminary objection with regard to the maintainability of the appeal.

If the Court comes to the conclusion that instant appeal is not maintainable no further adjudication would be required and, as such, the Court proceeds to decide the preliminary objection raised by the learned Counsel for the Respondents.

The relevant provision with regard to the appeal is to be found in Section 384 of the Act which reads as under:

Appeal.-(1) Subject to the other provisions of this part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly,'' in supersession of the certificate, if any, already granted.

(2) An appeal under Sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908.

(3) Subject to the provisions of Sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by Section 141 of that Code, an order of a District Judge under this part shall be final.

A bare perusal of the provisions quoted above reveals that only three types of orders, viz. granting a certificate, or refusing to grant a certificate or revoking a certificate Under Part X of the Act, have been made appealable. No other order is appealable u/s 384 of the Act. The order, under appeal, is neither an order granting a succession certificate nor an order refusing to grant a succession certificate nor an order revoking a succession certificate. The order under appeal is an order declining to recall the order dismissing the review application. It is thus clear that the instant appeal is not maintainable u/s 384 of the Act.

Mrs. Poonam Srivastava, learned Counsel for the. Appellant, contends that the instant appeal may be treated as an appeal u/s 299 of the Act, which makes every order made by a District Judge under the Act appealable.

For proper appreciation of the contention of the learned Counsel for the Appellant it is necessary to notice the provisions of Section 299 of the Act which runs as under:

Appeals from Orders of District Judge. Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals.

It is to be noticed that, u/s 299 of the Act, an order passed by a District Judge has been made appealable in accordance with the provisions of the Code of Civil Procedure, 1908 applicable to the appeals. The provisions with regard to the appeals against order, under the Code of Civil Procedure, 1908, are contained in Section 104 and Order 43, Rule 1 of the Code. In none of the said provisions of the Code an appeal against, the order declining to grant review is contemplated.

From what has been discussed above it becomes apparent that the instant appeal cannot be maintained, either u/s 299 or u/s 384 of the Act and the objection of Sri. Mandhyan in this regard is upheld. It is a frivolous appeal. It is, therefore, dismissed with costs assessed to be Rs. 350/-.