Allowed

The State of M.P. and Ors. v. Raj Kishore Sharma

Chhattisgarh HC10 Mar 2010SA/361/1991

Case brief

AI extract

What is this about?

In a second appeal, the High Court held a suit for recovery of gratuity/leave encashment by the father was not maintainable. The court ruled the mother, as a Class-I heir, was a necessary party whose non-joinder vitiated the suit, and the jurisdiction for succession certificate was also flawed. The suit was accordingly dismissed.

What did the court decide?

The second Appeal was allowed, the impugned judgment and decree set aside, and the original suit stands dismissed.

The State of M.P. and Ors. Vs Raj Kishore… — Succession and Inheritance | Chhattisgarh HC (2010)

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\ m THE‘ HIGH cou'rg OE MADH‘YAPRADESH AT JABALPUR‘ x S econd Appeal Np. /91, {44-

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ApPELLNTsA DEFENDANTs 1 State of Madhya Pradesh through Collector. Rainur .

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2..Ch.1.ef Engineep P.W.D.‘ R/aipur. 3.Sup_erintending Engineer. P.W;D. ‘ Raipur. 4 Executive Englneer, P W.D. Dhamé ar1 5 Subbarao aged 5O years, S.D.O. .‘W D ., Dhamtari, Office oi Superintending mngineer, .W.vD. Raipur. x

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:Versusi k

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RESPONDWTS

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,WS Raj Kishore Shama, S/o BabulalJJ. hharma, (wBagedanda.67' gears..P. , R/o, Mohalla ghcwx Bazar,

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WV ‘.. ' aECOND APPEAL UNDER uECTION 109 P.c 1 - Claim 1n Agnealuvaiued at Rs. 7607(-

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra

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Second Aggeal No.361 of 1991

Appellants

Respondent

versus

State of Madhya Pradesh

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(now^{Chhattisgarh)and} others

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Raj Kishore Sharma

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Present:

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Shri Sushi! Dubey, Government Advocate for the State/appellants. No one appears for the respondent.

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Second Appeal under Section 100 of the Code of Civil Procedure

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ORAL JUDGMENT

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(Delivered^on11‘ March, 2010)

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Heard finally.

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The plaintiff Raj Kishore Sharma preferred a suit for recovery of Rs.11,342.00 on the pleadings that his son Karuna Shankar Sharma, working as Sub-Engineer in the Public Works Department died on 2510—1981. After three months of death of Karuna Shankar Sharma, his wife Malti Sharma also died. The plaintiff^{istheonlylegalheirofthe} deceased Karuna Shankar Sharma to obtain the amount to which the deceasedwas entitled on account of leave encashment, gratuity^etc. as the nominee of the deceased as also his legal heir and for this a succession certificate has been issued in his favour by the District Judge, Banda (Uttar Pradesh).

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The appellants/defendants denied the plaint allegations and. v rstatedl that the amou nt claimed for in the suit has been withheld on l

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account of the liability and recovery to be made against the deceased Karuna Shankar Sharma for shortage of some articles in the godown. They defended the suit by submitting that the suit is barred under the provisions of the Administrative Tribunals Act, 1985 and that the mother of the deceased is entitled to file the suit and not the plaintiff.

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The trial Court, vide jUdgment and decree dated 26-10-1989 in Cii/il Suit No.9-B/87, dismissed the suit after holding that mother of the deceased adn not the plaintiff^isentitled to receive the amount and, thus, the suit was dismissed.

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T he first apellatep Court, on appeal by the pl aintiff, reversed the judgment^anddecre e of the trial Court an d decreed the suit. While doing so, the first ap pellate Court allowe d th e plaintiff’s application under Order 4 1 Rule 27 of the Code of Civi l Procedure, 1908 to bring on rcorde an extension succession certifictea issued by the District Judge, Banda (Uttar Pradesh) certifying his e ntitlement to receive the suit amount.

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Teh present second appeal hsa been amittedd o n the following substantial questions of law:

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“(i)

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Whether the mother of the deceased Karuna Shankar Sharma, was also a necessary party to the suit, as she was also entitled to a share left by her son in accordance with Section 15 of the HinduSuccession Act, 1956?

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(ii) r

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Whether the suit of the respondent was liable to be dismissed for non-joinder of the mother of deceased Karuna Shankar Sharma?”

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l>shall deal with both the substantial questions of law together, as they are interlinked.

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The first substantiai question of iaw is regarding entitlement of th’e mother of the deceased in the property/share Ieft by the deceased in accordance with Section 15 of the Hindu Succession Act , 1956.

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Admittedly and from the evidence on record, it appears that the mother of the deceased was alive at the time of hling of the suit. From the copy of the succession certificate, it does not appear as to whether it has been issued after an enquiry and after deciding objection with regard to all the persons, who claim to be entitled for a share in the property of the deceased. The succession certificate issued by the District Judge, Banda (Uttar Pradesh) Ex.P-1 dated 10-1-1983, which has been produced before the trial Court and the extension succession certificate dated 23-12-1989 produced before^{thefirstappellateCourt} do not reflect that the mother of the^deceasedwasa party^inthesaid proceeding. 10. As per Section 8 of the Hindu Succession^{Act,1956,motherisa} Class-l heir and the^{fatherisaClass-llheir.} Thus, the suit filed by the father of the deceased claiming entitlement to the property of the deceased without impleading the mother of the deceased, who is Class-i heir, was clearly not maintainable. From the record, it is born out that during the course of trial, the succession certificate initially submitted by the plaintiff^did not cover the suit amount, which was‘ subsequently produced in the first appellate Court by obtaining an / r extension succession certificate. Apart from the legal infirmity in the

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._4l,

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framing of the suit, there appears to be some suspicion inasmuch as the mst succession certificate did not cover the suit amount and in both the succession certificates the other claimants were not joined as parties^{tocontestthecaseofsuccession.}

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Section 371 of the Indian Succession Act, 1925 makes a provision^{regardingtheCourthaving} jurisdiction^to grant^certificate. It “the says that District Judge Within Whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence the District Judge, within Whose jurisdiction any part of the property of the deceased may be ‘found, may grant a certificate under this part”. 12. Admittedly, the deceased was employed as a Sub-Engineer and was serving at Dhamtari, now in the State of Chhattisgarh,^atthetime of his death. The property in the present suit, i.e., the amount deducted by the employer, amount not granted to the deceased for leave encashment etc. were the property^situated in Dhamtari District in the State of Chhattisgarh, therefore,^{theDistrictJudge,Banda} (Uttar Pradesh), in view of the provision contained in Section 371 of the Indian Succession Act, 1925, might not have jurisdiction to issue a succession certificate with respect to the property of the deceased falling in the State of Chhattisgarh. Even the first succession certificate filed in the trial Court was for some amount deposited in the Dena Bank, Kurud, a part of the^{thenDistrictofRaipur} (Chhattisgarh)^andas such none of the property^{forwhichthesuccession} certificates were obtained was falling^withinthe jurisdiction^ofthe District Court, Banda \ .(Uttar Pradesh). \

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The first appellate Court has wrongly relied on the documents ‘submitted by the plaintiff^along with his application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 without appreciating the legal impact of the provision contained in Section 371 of the lndian Succession Act, 1925 and for this reason also the non-joinder of the mother of the deceased in the present suit was fatal and the suit should have been dismissed on this count.

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In the result, both the substantial questions of law are answered in favour of the appellants/defendants and against the respondent/plaintiff. lt is held that the suit was not maintainable on account of non-joinder of the mother of the deceased as a party in the present suit. The second appeal is, thus, allowed. The impugned judgment^and decree dated 23—3-1991 passed by the first appellate Court in Civil Appeal No.5-B/89 is set aside. As a consequence thereof, the suit filed by the plaintiff stands dismissed. There shall be no order as to costs.

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A decree be drawn-up accordingly.

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Sui!—
m
u

The State of M.P. and Ors. v. Raj Kishore Sharma

Case brief

What is this about?

What did the court decide?

The State of M.P. and Ors. v. Raj Kishore Sharma

Case brief

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What the court decided

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