Sujatha R. Tantri vs Harini R. Rao and Others

Ram Mohan Reddy, J.—Petitioner aggrieved by the order dated 13.3.2014 of the Senior Civil Judge, Kundapur rejecting IA-II under Order I Rule 10 CPC in P and SC No. 1/2013 has preferred this petition under Article 227 of the Constitution.

Respondent No. 1 herein instituted P and SC No. 1/2013 invoking Section 372 of the Indian Succession Act, 1925, for short ''Act'' for grant of succession certification, in respect of the assets belonging to deceased Vedavyasa Tantri, who allegedly died issueless. In that petition, respondents 2 and 3 herein were arraigned as respondents, asserting that the parties are related as brother and sisters of deceased Vedavyasa Tantri.

Public notice when ordered in accordance with clause (b) of Subsection (1) of Section 373 of the Act, petitioner is said to have filed IA-II to be impleaded as a proper and necessary party to the proceeding asserting that she is the widow of a predeceased brother by name B. Ramachandra Tantn and therefore, would qualify as a Class-II heir under the Hindu Succession Act, 1956. In addition, it was stated that her husband related as brother of deceased Vedavyasa Tantri, having died intestate leaving behind her as the widow along with two sons, are equally entitled to a share in the estate of the deceased Vedavyasa Tantn.

The application was opposed by filing statement of objections of the petitioner Harini R. Rao, while admitting that Vedavyasachar Tantri died issueless denied that the widow of the brother of Vedavyasa Tantri was entitled to any share in the properties of deceased Vedavyasa Tantn.

The trial Court, having regard to the pleadings of the parties framed the following point for consideration:

"i) whether the applicants are necessary and property parties to the proceeding?" The trial court answered the said point in the negative observing that under Section 8 of the Hindu Succession Act, there are IX entries in terms of which each heir shown in the said entry will share the properties simultaneously and accordingly brothers and sisters fall under entry No. 2 who share the property simultaneously; father''s widow and brothers widow come within entry No. 6 and they share the properties simultaneously and equally. The trial Court further observed that the heir in the first entry in Class-II would be preferred to those of the second entry, while heirs in the second entry are preferred to those of the third entry and so on and so forth and therefore, petitioner -Hanni R. Rao and the respondents being brother and sisters of deceased Vedavyasa Tantri fall within entry No. 2, while the applicant being the widow of the brother of the deceased Vedavyasa Tantri falls under entry No. 6 of class-II and hence disentitled to any preferential treatment. In that view of the matter, the Court below rejected IA-II by the order impugned.

At the outset, it must be noticed that scope of Section 372 of the Act relates to the making an application for issue of a certificate and the procedure for grant of such certificate is summary in nature, while intricate questions of title are not to be decided. In other words, the party having prima facie best title should be granted a certificate, while the contesting party is at liberty to establish his title in a Civil Court. The Act does not bar any one of the relatives or heirs left by the deceased to make application for succession certification in respect of debt or debts due to the deceased or in respect of portion thereof.

"The Legislature having laid down that the enquiry is summary, it is for the Court to determine as to who appears to have a prima facie best title thereto for grant of certificate and should not determine, definitely, and finally, as to who has the best right to the estate since all that is required to be done in the matter of issue of certificate on the one hand, on being summarily enquired, while on the other hand is only to facilitate collection of debts due to the deceased and prevent they being time barred owing to dispute between the heirs inter se as to preferential right of succession and partition, to afford protection to the debtors by appointing a representative of the deceased and authorizing him to give a valid discharge of the debt. The grant of certificate to a person does not ipso facto give him an absolute right to the debt nor does it bar a regular suit for adjustment of the claims of the heirs inter se. The succession certificate, therefore, is held, is not a final adjudication of the question as to who is the next heir and as such entitled to the estate of the deceased."

(emphasis supplied)

If regard is had to the aforesaid principles, application filed by the petitioner under Order I Rule 10(2) CPC to come on record as an interested person in the proceeding for grant of succession certificate, the requirement of law was for the court below to consider as to whether petitioner was a proper and necessary party to the proceeding and not over her right, title and interest in the recovery of the debt due to the deceased Vedavyasa Tantri. The trial Court appears to have given a go-by to the requirement of Order I Rule 10(2) CPC and proceeded on the basis that the petitioner not being a preferential heir was not entitled to issue of a certificate and therefore, was not a necessary and proper party to the proceeding in other words, the court below recorded findings on the merit of the claim of the petitioner as to whether she had a preferential right to secure a succession certificate not noticing the admitted fact that she was the widow of a predeceased brother of the deceased Vedavyasa Tantri. In that view of the matter, the court below recorded perverse findings to reject IA-II filed by the petitioner. Suffice it to notice that the order impugned suffers from an error apparent on the face of the record, occasioning grave injustice to the petitioner and miscarriage of justice calling for interference.

Petition is accordingly allowed. The order impugned is set-aside. IA-II is accordingly allowed. Petitioner is permitted to come on record as necessary and proper party to the proceeding.