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PETITIONER: JOGINDER PAL

       Vs.

RESPONDENT: INDIAN RED CROSS SOCIETY & ORS.

DATE OF JUDGMENT:       29/09/2000

BENCH: K.T.  THOMAS , R.P.  SETHI , & S.N.  VARIAVA

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J S.  N.  VARIAVA, J.

Leave granted.

   This  Appeal  is  against  a Judgment of  the  Punjab  & Haryana  High  Court  dated 5th October, 1999 by  which  the second  Appeal  filed  by  the  Appellant  herein  has  been dismissed.

   Briefly stated the facts are as follows:

   One  Ms.   Raj Mohini possessed moveable  and  immovable properties.   She was unmarried and did not have any  issue. She  executed a Will dated 2nd April, 1985 in favour of  the 1st  Respondent, which is the Indian Red Cross Society.  The Appellant  is related to Ms.  Raj Mohini.  He is the son  of the maternal uncle of the lady.  On 12th June, 1987 Ms.  Raj Mohini  executed  another  Will by which she  cancelled  the earlier  Will  and  bequeathed  all her  properties  to  the Appellant.   The  said Raj Mohini died on 27th April,  1998. (For sake of convenience she will hereinafter be referred to as  the  said  deceased.) The 1st Respondent applied  for  a Succession  Certificate in respect of the movable assets  of@@                                    JJJJJJJJJJJJJJJJJJJJJJJJJ the  said deceased.  They claimed to be beneficiaries  under@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the  Will dated 2nd April, 1985.  When the Appellant  learnt about  this Application he got himself impleaded as a  party to  that  Application.  The Appellant also filed a  Petition for  probate  of  the Will dated 12th June, 1987.   The  1st Respondent  applied for stay of this Petition under  Section 10  of  the Code of Civil Procedure on the ground  that  the parties  and  issues, in the Probate Petition and  in  their Application for Succession Certificate;  were the same.  The Probate  Petition  was  stayed.   In  the  Application   for Succession  Certificate the Court raised issues as  follows:@@                                          JJJJJJJJJJJJJJJJJJJ "1.   Whether  Miss  Raj Mohni executed a valid  Will  dated 2.4.1985  in  favour of the Red Cross  Society-appellant  as alleged ?"

   2.   Whether  Miss  Raj Mohni executed a valid  Will  in favour  of  Joginder  Pal, respondent no.  2 on  12.6.87  as alleged ?"

   Parties  were  allowed  to  lead  oral  and  documentary

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evidence.  Ultimately by an Order dated 30th March, 1993 the Application  was dismissed.  The operative part of the Order reads as follows:

   "5.   For  the  above stated reasons I do not  find  any merits  in the instant application and therefore the same is dismissed.   However, the respondent namely, Joginder Pal is entitled  to receive the liquid assets of deceased Raj Mohni as  her only legal heir on the basis of will executed in his favour  by  deceased Rajmohni during her life time in  sound disposing  mind.  The said will is Ex.  R.1 dated 12.6.87 on the  record.   The  respondent no.  2 is  directed  to  file security  in the sum of Rs.  2,50,000/- by filing a personal bond  and  surety  bond.   The application  is  disposed  of accordingly.  File be consigned to the record room."

   Thus  a  Succession  Certificate   was  granted  to  the Appellant in respect of the Will dated 12th June, 1987.  The Appellant  withdrew his Probate Petition.  At this stage, it must  be  mentioned  that, on 20th August, 1996,  an  Appeal filed  by  the 1st Respondent against the Order  dated  30th March,  1993  was dismissed.  A Revision filed against  that order was dismissed by the High Court on 10th October, 1996. 1st  Respondent then filed this Suit for a declaration  that they  were the lawful owner and in possession of the  assets@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  the  said deceased.  They have based their claim on  the@@ JJJJJJJJJJJJJ Will  dated  2nd  April,  1985.    The  Appellant  filed  an Application  that  the plaint did not make out any case  and that  it  should be rejected under Order VII Rule 11 of  the Code  of  Civil Procedure.  By an Order dated 18th  January, 1997  the  Trial Court rejected the plaint under  Order  VII Rule  11  C.P.C.  The 1st Respondent preferred Civil  Appeal No.   73.   By a Judgment dated 5th April, 1997 this  Appeal was  allowed.   The  case  was remanded back  for  trial  on merits.   The  Appellant preferred Second Appeal No.  14  of 1997.  This was dismissed by the impugned Judgment dated 5th October,  1999.   Mr.   Sohal submitted  that  the  impugned Judgment  should  be set aside inasmuch as a full trial  had already  taken  place in the Application, filed by  the  1st Respondent,  for Succession Certificate.  He submitted  that those proceedings were not disposed off in a summary manner. He  submitted that issues had been raised, parties had  been allowed  to lead evidence.  He submitted that a decision  on merits  had been given by that Court.  He submitted that the 1st Respondent now could not claim any rights under the Will dated 2nd April, 1985.  He also relied upon Explanation VIII of  Section 11 of the Code of Civil Procedure.  He submitted that  the  principles of res-judicata would also apply.   In support of his submission Mr.  Sohal relied upon the case of Smt.   Sawarni  v.  Smt.  Inder Kaur and others reported  in@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 1996(7) JT S.C.  580.  In this case it has been held by this@@ JJJJJJJ Court  that  rights  flowing from a  succession  certificate cannot  be ignored without getting it annulled.  It has been held  that the lower Court committed a serious error of  law in  ignoring  the Will and the succession certificate  which unequivocally  clinched  the  issue.  It must,  however,  be noted that these observations are made in the context of the facts of that case.  In that case, the plaintiff had filed a suit  claiming her share in the property of the deceased  on the basis of a Will and a Succession Certificate obtained by her.   The lower Court had, on basis of oral and documentary

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evidence,  concluded that the plaintiff had no right in  the assets  of  the deceased.  The lower Court had  ignored  the Will  and the Succession Certificate.  It is in that context that  the above observations had been made.  Mr.  Sohal also relied  upon the case of Mohan Lal v.  Kartar Singh reported in  1995  Supp  (4) SCC 684.  In this case,  the  effect  of Sections  43  and 47 of the Pepsu Tenancy  and  Agricultural Lands  Act, 1955 were considered.  This Court held that even though  proceedings under Section 43, were summary in nature the  legislature did not exclude from the purview of Section 43  cases  where disputes were complicated because of  facts and pleas raised by the contesting parties.  This Court held that  the  decision  of the Collector becomes final  in  the sense  that it could not be called in question in any Court. The  finality attached to the decision of the Collector  was in  view of Section 47.  This Section barred jurisdiction of Civil  Courts in matters which were required to be  settled, decided  and/or  dealt  with by the Collector.   Relying  on these  two  decisions Mr.  Sohal submitted that even  though proceedings  for  successions  certificate  are  summary  in nature,  the  finding  given   therein  and  the  succession certificate  issued  cannot  be ignored without  getting  it annulled.   He  further  submitted that in  cases  like  the present case where issues had been raised, evidence had been led  by  the  parties  and the Court did not  proceed  in  a summary  fashion  the  finding would also become  final  and would  operate as res-judicata between the same parties.  In order  to  consider  the  submission   of  Mr.   Sohal   the provisions of the Indian Succession Act require to be looked into.  The Indian Succession Act deals with grant of Letters of  Administration  (with or without the will being  annexed thereto)  or  grant  of  Probate   or  grant  of  Succession Certificates.  It is admitted that, by virtue of Section 57, it  is not necessary to apply for Letters of  Administration or  Probate  in  the  States of  Punjab  and  Haryana.   The deceased  Mohini was a resident of Punjab and, therefore, no probate  was  required.   It must, however,  be  noted  that Section  273  of  the Indian Succession Act,  provides  that probate  or  letters of administration have effect over  all the  property  and  estate,  movable or  immovable,  of  the deceased  throughout  the  State  in which  they  have  been granted  and  such  probate should be conclusive as  to  the representative  title of the executor or legatee.  Part X of the   Indian   Succession   Act    deals   with   Succession Certificates.   Sections  373, 383(e) and 387 are  relevant. They read as follows:  "373.  Procedure on application.- (1) If  the District Judge is satisfied that there is ground for entertaining  the  application, he shall fix a day  for  the hearing  thereof and cause notice of the application and  of the  day  fixed  for the hearing- (a) to be  served  on  any person  to whom, in the opinion of the Judge, special notice of  the application should be given, and (b) to be posted on some  conspicuous  part of the court-house and published  in such  other  manner,  if any, as the Judge, subject  to  any rules made by the High Court in this behalf, thinks fit, and upon  the  day  fixed,  or  as soon  thereafter  as  may  be practicable, shall proceed to decide in a summary manner the right  to  the certificate.  2.  When the Judge decides  the right  thereto  to belong to the applicant, the Judge  shall make  an order for the grant of the certificate to him.   3. if  the  Judge  cannot decide the right to  the  certificate without  determining questions of law or fact which seem  to be  too  intricate  and  difficult for  determination  in  a summary  proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima

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facie  the  best  title thereto.  4.  When  there  are  more applicants than one for a certificate, and it appears to the Judge  that more than one of such applicants are  interested in the estate of the deceased, the Judge may, in deciding to whom  the  certificate is to be granted, have regard to  the extent  of interest and the fitness in other respects of the applicants.  (emphasis supplied)

   383.   Revocation of certificate.- A certificate granted under  this  Part  may be revoked for any of  the  following causes,  namely:- xxx xxx xxx xxx xxx xxx (e) that a  decree or  order  made  by  a competent Court in a  suit  or  other proceeding  with  respect  to effects  comprising  debts  or securities  specified  in the certificate renders it  proper that the certificate should be revoked.

   387.   Effect of decisions under this Act, and liability of holder of certificate thereunder.- No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any  other proceeding between the same parties, and  nothing in  this Part shall be construed to affect the liability  of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account  therefor to the person lawfully entitled  thereto." These  Sections make it clear that the proceedings for grant of  succession certificate are summary in nature and that no rights are finally decided in such proceedings.  Section 387 puts the matter beyond any doubt.  It categorically provides that  no  decision under Part X upon any question  of  right between  the  parties shall be held to bar the trial of  the same  question  in any suit or any other proceeding  between the  same parties.  Thus Section 387 permits the filing of a suit   or   other  proceeding   even  though  a   succession certificate might have been granted.  This question was also considered  by this Court in the case of Madhvi Amma Bhawani@@                                          JJJJJJJJJJJJJJJJJJJ Amma  & Ors.  v.  Kunjikutty Pillai Meenakshi Pillai &  Ors.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ reported  in JT 2000 (5) SC 336.  In this case after  having considered  the  provisions  of Sections 370 to 390  of  the Indian  Succession Act as well as Section 11 of the Code  of Civil  Procedure,  it  has been held that  any  adjudication under  Part  X does not bar the same question  being  raised between the same parties in a subsequent suit or proceeding. It  has been held that Section 387 of the Indian  Succession Act  takes  a  decision  given under Para X  of  the  Indian Succession  Act  outside the purview of Explanation VIII  to Section 11 of the Code of Civil Procedure.  It has been held that  Section  387 gives a protective umbrella to  ward  off from the rays of res judicata to the same issue being raised in  a  subsequent  suit  or  proceeding.   We  are  in  full agreement  with the view expressed in this case.  In view of the  specific provisions of law it is not possible to accept Mr.   Sohal’s submissions.  Section 387 specifically permits the  2nd  Respondent  to  file a  subsequent  suit.   Merely because issues were raised and/or evidence was led, does not mean  that  the  findings  given thereunder  are  final  and operate  as res-judicata.  Even in summary proceedings issue can  be raised and/or evidence can be led.  The  proceedings remain summary even though the Court may, in its discretion, permit  leading of evidence and raising of issues.  So in  a subsequent  suit  the crucial issues must be decided  afresh untrammelled  or  uninfluenced  by any finding made  in  the proceedings  for  grant of Succession Certificate.  In  this

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view of the matter, we see no substance in this Appeal.  The@@                                                          JJJ same stands dismissed.  There will be no order as to costs.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ