V.S. Ramakrishna Aiyar vs Nagammal and Others

Sundara Aiyar, J.—This is an application u/s 115 of the CPC for revision of an order of the District Judge of Madura, revoking the

succession certificate granted to the petitioner here and granting a certificate to the respondents.

The petitioner here claimed the certificate as legatee under a will made by a deceased Hindu. His application was opposed by the respondents,

the widows of the deceased. The Subordinate Judge, to whom the application was made, took evidence on the question of the genuineness of the

will. His conclusion, to set it out in his own words, was as follows : ""I find that for purposes of this petition the will is proved. This decision will not

affect the right of the respondents to have the will declared void or to have it set aside."" It is not quite clear to me whether the Subordinate Judge

meant that on the evidence he came to the conclusion that the will was genuine, but that his opinion would not constitute the matter res judicata in

any proceedings which the respondents might take to declare the will not genuine, or whether he meant merely that the petitioner had adduced

sufficient evidence to enable the Sub-Judge to arrive at a prima facie conclusion in favour of the genuineness of the will.

The respondent appealed to the District Court against the Sub-Judge''s order.

Mr. Srinivasa Aiyangar''s contention here is that the District Judge has not really decided the question whether the will was genuine or not. He

put it even more strongly, that the District Judge refused to decide the question and failed to exercise a jurisdiction vested in him.

I am unable to agree with the contention that the District Judge refused to decide the question - at any rate in the sense that he came to no

conclusion at all on it. He observes : ""No prima facie case has been made out in favour of the petitioner in the lower court."" And again, after stating

that two attesting witnesses testified in support of the will, while two others denied its genuineness, he says : ""I can nee no sufficient reason for

crediting one set of witnesses rather than the other. The evidence can only be said to be evenly balanced."" Later on he observes : ""There is no such

clear and overwhelming evidence,"" etc It appears to me that the District Judge''s finding substantially is that he was not proposed to hold, on the

conflicting evidence before him, that the will was proved. He goes on to observe : ""The case is not a simple or clear one. It is one which should be

fully enquired into in a probate suit."" I understand this to mean that on the evidence before him he was not prepared to hold the will proved, but he

considered it better to act under the provisions of Clause (3) of Section 7 of the Succession Certificate Act. That is, he considered the question of

the genuineness of the will too intricate for determination in the certificate proceedings, and, as the petitioner had no prima facie right to the

certificate, in case the will was not proved, he refused to grant him the certificate. The Judge has, in fact, expressly stated that he intended to apply

Clause (3) of Section 7.

Mr. Srinivasa Aiyangar contends that the Judge was wrong in applying Clause (3) to this case. He argues, first, that it is only the court to which

the application for certificate is made in the first instance that liar, got the light to exercise the discretion conferred by that clause. I am unable to

agree with him. The functions and powers of a court of appeal invested with plenary jurisdiction to decide a question which the court of first

instance had to decide are in substance the same as those of the first court itself. The appellate court had to decide whether the petitioner should be

granted the certificate he asked for or not; it had to adjudicate on the question who was entitled to the certificate to collect the debts of the

deceased; and I can see no reason for holding that it had not the same power to exercise the discretion vested in the court of first instance by

Clause (3) as that court had.

It is next argued that the discretion must be exercised in a reasonable manner, and that the question whether a will was in fact executed or not

would seldom be an intricate question and was not so in this case. I think the contention is sound to this extent : that the discretion exercised by a

court under Clause (3) is a judicial discretion liable to the control of the appellate court. An appellate court could hold that a question considered

to be an intricate one by the court of first instance is not really an intricate one, and that it should be decided in the certificate proceedings just as,

as already pointed out, an appellate court could hold a question not regarded as intricate by the first court to be in reality an intricate one and not fit

for decision in the certificate proceedings.

Then it is urged that it is open to this Court in revision to say that the District Judge acted illegally or with irregularity in acting under Clause (3). I

am unable to agree. Putting it at the highest, it cannot be said that the District Judge was guilty of anything more than an error in law or in fact in

considering the question to be an intricate one, and in neither case could I interfere u/s 115.

Several cases have been cited by Mr. Srinivasa Aiyangar. But, in my opinion, none of them really helps him in this case. The cases of Sivamma

v. Subbamma ILR (1894) M. 477 and Balamukund v. Kundan Kunwar ILR (1905) A. 452 lay down that where the decision of a question is

necessary to adjudicate on the question of the title to a certificate the court is bound to hold some enquiry, or, to use the language in the former

case, the opinion that the question is an intricate one must be arrived at as the result of the inquiry and not without any inquiry whatsoever. In the

case of Janki v. Kallu Mal ILR (1908) A. 236 the first court fully investigated a certain question and came to a conclusion as to the person entitled

to the certificate as the result of the inquiry. The appellate court refused to accede to the request that the question which had been already inquired

into should not have been decided and that the certificate should not have been granted to the party to whom it was given by the first court. The

case is an authority only for the position that a court is not bound to refuse to enquire into a question which is an intricate one. The case of Basanta

Lal v. Parbati Koer ILR (1903) C. 133 does not lay down any definite rules which could be revoked in favour of the petitioner before me.

The result is that, in my opinion, whether I regard the District Judge as having come to the conclusion that he could not act on the evidence

offered in favor of the will, or that he acted under the provisions of Clause (3) of Section 7, there is no question of jurisdiction which arises for

decision by this Court in a petition u/s 115 of the Civil Procedure Code. If he had not applied Clause (3) of Section 7 of the Succession Certificate

Act and at the same time refused to come to a conclusion on the question of the genuineness of the will, then the appellant might have grounds to

ask this Court to interfere in revision. But as am unable to take this view of the judgment of the District Judge I am bound to dismiss this petition. I

do so with costs.