Yog Raj vs Makund Lal and others

One Gain Chand is alleged to have died on 2581985. On 2891985, the appellant field an application under the Succession Certificate Act,

1977 (1920A.D)for grant of a Succession Certificate in respect of the debts left behind by the deceased Gian Chand. On publication of notice

etc., respondent No.3, Mst. Tulsi Devi appeared in the Court of District Judge Kathua where the application had been filed by the appellant and

sought to object to the grant of Succession Certificate in favour of the petitioner on twin grounds namely (1) that she was the real sister of the

decased Gian Chand and,(2) that the will on the basis whereof the appellant was claiming Succession was not a genuine document and that it had

been forged by the appellant. Vide the impugned judgment dated 30111990 passed by the learned District Judge Kathu whereas the appellant's

prayer for grant of Succession Certificate was disallowed, respondent no.3 was issued Succession Certificate in respect of the debts of deceased

Gian Chand with permission to draw the amount in question on the condition of her furnishing an undertaking to the effect that she would deposit

the amount in the Court if any other person was found entitled either partly or in whole to the amount in question.

There are two issues involved in the case. One pertains to that part of the judgment under appeal whereby the learned District Judge has held

that the issue relating to the proof of the genuineness of the will involved intricate and complex questions of fact which were outside the purview

and domain of the Court dealing with the limited question of grant of Succession Certificate under the Succession Certificate Act, 1977, This

finding of the Court below is wholly unassailable and I find myself in complete agreement with the reasoning and the conclusions arrived at, in so far

as this finding is concerned.

With regard to second part of the judgment however, whereby the learned District judge has granted the Succession Certificate in favour of

respondent No.3 and permitted her to draw the amount against furnishing an undertaking, I must say the learned District judge has fallen in error in

adopting this course of action. If he was unable to decide the question relating to the genuineness or otherwise of the will on the assumption and

premises that such decision depended upon some intricate questions of fact, he should have left the matter at that and given a liberty to the parties

to agitate the issue in a civil Court, if they so like. That was not only the logical corolary of the events but also the consequence of the approach

adopted by the Court in refusing to act upon the will produced by the appellant. Rather than doing that however, the learned District Judge

adopted an unusual course of permitting the respondent No.3 to draw the amount by granting Succession Certificate in her favour. This approach

in my view was neither permissible under law nor warranted having regard to the facts of the case.

If respondent No.3 had Succeeded in claiming the Succession Certificate on the basis of the will in question and if she also succeeded in

jeopardising his interests by taking such stand with regard to the will which inevitably lead to the demand of proof in regular civil suit, as has been

the purport of the judgment under appeal, that by itself could not have entitled her in herself claiming to be the rightful owner of the estate of the

deceased Gian Chand. Here was a situation, where one party was claiming the estate on the basis of a will and the other party on the basis of right

of inheritance and survivorship. The Court dealing with the grant of Succession Certificate had not returned any finding regarding the genuineness

or otherwise of the will which means that the question relating to the right and title of one party on the basis of the will was wide open. In that

situation therefore permitting the other party (respondent No.3} to draw the amount by granting Succession Certificate in her favour surely

amounted to not only defeating the rights of the appellant, without having returned any finding against him, but also to frustrate the very thrust and

purpose of the judgment under appeal whereby the parties were given a liberty to have the question of will settled in a Civil Court. Such a situation

can neither be countenanced nor allowed to remain in force. This part of the Judgment impugned therefore is to be modified and set aside to

correct the patent illegality and error having crept in. Any other course of action would be against the principles of natural Justice apart from being

patently harsh to the interests of the appellant.

For the foregoing reasons, therefore, I partly allow this appeal and set aside that part of the judgment impugned which relates to the grant of

Succession Certificate in favour of respondent No. 3 and permission given to her to draw the amounts mentioned on furnishing the requisite

undertaking. While setting aside this part of the judgment, I direct that the amounts in questions, being debts of the deceased Gian Chand, shall not

be drawn by either party to the proceedings or anyone else and shall be kept in fixed deposits by the bank in which they are already lying so as to

ensure that maximum interest accrues upon them. The parties, both the appellant and respondents, or anyone else is at liberty to approach a Civil

Court by filing a civil suit claiming title to the assets of the deceased Gian Chand either on the basis of Succession/inheritance or the will which was

subject matter of this appeal. If more than one suit is filed with regard to this subject matter, such suits shall be clubbed together and tried in one

Court. The suit/suits, as the case may be, shall be very, very expeditiously disposed of by the Civil Court, keeping in view the inordinate dealy

which already has taken place in the matter. Depending upon the decree to be passed by the Civil Court, the amount in question shall be claimed

and paid to the party who succeeds there. It is made absolutely clear that no part of this judgment or the judgment under appeal, shall be construed

as an expression of option, inadvertently or otherwise, on the merits of the controversy by the Civil Court, which shall independently decide the

questions involved.

Appeal accordingly is partly allowed but without any order as to costs.