Dismissed

Visalakshi v. P.P.Prakasan & Others

Kerala HC5 Jul 2011CRP/350/2010

Case brief

AI extract

What is this about?

The Court held that Sec.7(1)(d) of the Family Court Act does not deprive the District Judge of jurisdiction to decide an application for a succession certificate under Sec.373 of the Indian Succession Act even if marital status is disputed, as succession proceedings are summary.

What did the court decide?

The civil revision petition filed by the petitioner challenging the jurisdiction of the Sub Judge to grant a succession certificate was dismissed.

Visalakshi Vs P.P.Prakasan & Others — Succession and Inheritance | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933

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CRP.No. 350 of 2010()

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-------------------------OP.11/2009 of SUB COURT, TIRUR

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PETITIONER(S): 2ND RESPONDENT

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-----------------------------------------

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VELUTHEDATH PARAMBIL VISALAKSHI, D/O.APPU VAIDYAR,60 YEARS,ROOM NO.11, HAMZAKUTTY HAJI'S QUARTERS, NEAR THUVVAKKAD, PO KANMANAM, MALAPPURAM DISTRICT.

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BY ADV. SRI.P.CHANDRASEKHAR

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RESPONDENT(S): PETITIONER/RESPONDENT 1 AND 3

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---------------------------------------------------------------

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1. P.P.PRAKASAN, S/O.(L)PALLIPARAMBIL BALAN PALLIPARAMBIL HOUSE, THALAKKAD AMSOM DESOM, PO B.P.ANGADI, TIRUR, MALAPPURAM DISTRICT, PIN 676 102.

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2. P.P.BABU, S/O.(L)PALLIPARAMBIL BALAN, PALLIPARAMBIL HOUSE, THALAKKAD AMSOM DESOM, PO B.P.ANGADI, TIRUR, MALAPPURAM DISTRICT, PIN 676 102.

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3. TRIPRANGODE SERVICE CO-OPERATIVE BANK, TRIPRANGODE PO, REPRESENTED BY SECRETARY, PIN 676 108.

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R1 & R2 BY ADV. SRI.JAMSHEED HAFIZ

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs

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'CR'

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THOMAS P JOSEPH, J.

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C.R.P.No.350 of 2010

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Dated this 05^th day of July, 2011

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ORDER

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The question raised for a decision in this civil revision filed under Sec.115 of the Code of Civil Procedure (for short, "the Code”) is whether in view of the power given to the Family Court to adjudicate dispute of the nature coming under Sec.7(1)(d) of the Family Court Act (for short, "the Act”) power of the District Judge (or other Court to which that power is delegated) to grant succession certificate under Sec.371 of the Indian Succession Act, 1925 (for short, "the Succession Act”) is taken away.

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On the death of one Balan, one of his sons moved a petition before learned Sub Judge, Tirur under Sec.371 of the Succession Act for the grant of a Succession Certificate regarding a sum of `.9,00,000/- in deposit with the third respondent, a co-operative bank. Since petitioner was shown as a nominee in the deposit receipt, she was impleaded as a party in the original petition. Petitioner claimed to be the legally wedded wife of the said Balan (which is not admitted by respondents 1 and 2, sons of the said Balan) and contended that learned Sub

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C.R.P.No.350 of 2010

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Judge has no jurisdiction to entertain the petition for grant of succession certificate since her status as legally wedded wife of deceased Balan is disputed and hence that dispute is to be settled by the Family Court under Sec.7(1)(d) of the Act. Learned Sub Judge heard the challenge to jurisdiction as a preliminary point and held that he has jurisdiction to decide the original petition. That order is under challenge. Learned counsel for petitioner contended that in view of Sec.7(1)(d) of the Act, and as there is a dispute regarding the matrimonial status of petitioner raised by respondents 1 and 2, learned Sub Judge has no jurisdiction to try the original petition. Learned counsel has contended, placing reliance on the decision in Syamaladevi Vs. Saraladevi (2009 (1) KLT 892) that even a dispute not between the parties to the marriage is cognizable by the Family Court under Sec.7(1)(d) of the Act. Learned counsel has also relied on Sec.8 of the said Act which ousted jurisdiction of the Civil Court in matters which the Family Court is required to adjudicate under Sec.7 of the said Act. Learned counsel for respondents 1 and 2 contended that the function of the District Judge (or other Court to which the power is delegated) under Sec.373 of the Succession Act is summary in nature and when it involves too intricate and difficult questions of law and fact, the District Judge may nevertheless grant a

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C.R.P.No.350 of 2010

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certificate to the applicant if he appears to be the person having prima facie the best title thereto. It is argued by learned counsel that as the proceeding before District Judge is of a summary nature, his decision will not operate as res judicata in a subsequent suit on title in the Civil Court. In the circumstances, contention that Sec.7(1)(d) and Sec.8 of the Act ousted jurisdiction of the District Judge to decide on question of grant of succession certificate when there is a dispute regarding marital status of a party cannot be accepted, it is argued. Reliance is placed on the decision of the Karnataka High Court in Smt.Vasumathi Vs. Chandriyani Madhavi and Ors. (AIR 1991 Karnataka 201).

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To appreciate the rival contentions it is necessary to refer to the relevant provisions of the statutes referred to me. Sec.371 of the Succession Act confers jurisdiction on the District Judge to grant certificate (that power is given to the Sub Judge and Munsiff also be delegation). Sec.372 of the said Act deals with the application for Succession Certificate and Sec.373 deals with the procedure to be followed on such application. Under Sec.373, 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

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C.R.P.No.350 of 2010

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for the hearing to be served on any person to whom, special notice of the application should be given. Subsection (3) of Sec.373 says that 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 facie the best title thereto.

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Sec.7 of the Act deals with the jurisdiction of Family Court. Sub sec.1(a) states that a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation.

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The explanation reads thus:

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“The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:-

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(a) ................................. (b) ................................. (c) .................................

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(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship”.

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It is on the said clause that learned counsel for petitioner has

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C.R.P.No.350 of 2010

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placed reliance to contend that a suit or proceeding for an order, be it for the issue of succession certificate is entertainable by the Family Court in which case, according to the learned counsel in view of Sec.8 of the Family Court Act, jurisdiction and power of other Court is ousted.

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I must bear in mind that suits and proceedings referred to in Sec.7 of the Family Court Act are not of a summary nature but, one to determine the rights and liabilities of the parties including title to immovable property, if involved. Sec.7 of the Act does not confer power on the Family Court to entertain an application under Sec.372 of the Succession Act. It is clear from Sec.373(3) of the Succession Act, which states that 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 facie the best title thereto, that the District Judge while deciding the application under Sec.372 of the Succession Act is not to decide on intricate questions of fact or law involving title but need only conduct a summary enquiry. The purpose of grant of a certificate is not to give the litigant parties an opportunity of litigating contested

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C.R.P.No.350 of 2010

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questions of title to property. The object of part X of the Succession Act is to obtain appointment of some person to give legal discharge to debtors to estate for debts due. The District Judge while deciding an application for succession certificate is not concerned with any question of title. He cannot decide contested questions of title to property. What is to be investigated under Subsec.(3) of Sec.373 is not the title to the estate of the deceased person, but the title to the certificate – whether the applicant appears to be the person having prima facie the best title to the certificate. It is because of the summary nature of proceeding relating to the grant of succession certificate that it is held that the decision taken in such proceeding does not operate as res judicata in a subsequent proceeding on title. Sec.387 of the Succession Act also makes the position clear that the decision in a proceeding for the grant of certificate is not conclusive and the same question may be tried in another suit or proceeding between the same parties. In short, a proceeding under Sec.373 of the Succession Act is purely summary in nature to find who according to District Judge is prima facie best suited to be issued the certificate.

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Apart that Sec.7 of the Act does not enable the Family Court to entertain an application for the grant of succession

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C.R.P.No.350 of 2010

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certificate under Sec.372 and grant such certificate under Sec.373 of the Succession Act, the proceeding under Sec.7(1)(d) of the Family Court Act is distinguishable from a proceeding of a summary nature contemplated under Sec.373 of the Succession Act. If at all the District Judge finds that a particular person prima facie has best title to the certificate, the aggrieved person can approach the Civil Court and establish his title. Assuming that learned Sub Judge finds that first respondent being the son of deceased Balan appears to be the person having prima facie the best title to the certificate, the law does not preclude petitioner from establishing the title she claims to the estate of the deceased based on her claim of legally wedded wife of the deceased in the appropriate forum.

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In the light of the above I am inclined to hold that the power of the District Judge (or other Court to which it is delegated) under Sec.373 of the Succession Act to decide who is most suited to get Succession Certificate is not taken away by Sec.7(1)(d) of the Act even if there is a dispute regarding marital status of one of the parties to the proceeding. I am in agreement with the view expressed by the Karnataka High Court in the decision cited supra. I therefore hold that Sec.7(1)(d) of the Act does not take away the power and jurisdiction of the District

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C.R.P.No.350 of 2010

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Judge (or other Court to which it is delegated) to decide who is most suited to get the certificate under Sec.373 of the Succession Act.

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Though learned counsel for petitioner has raised yet another contention that in view of Sec.45ZA of the Banking Regulation Act petitioner being the nominee is entitled to collect the amount and she stands relegated to all rights which the deceased had over the deposit in question, learned counsel has submitted that the question need not be adjudicated in this proceeding and may be left to be raised before the Court concerned. Accordingly, that question is relegated to the learned Sub Judge for decision if it arises for a decision.

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In view of what I have held above, the finding of learned Sub Judge that he has jurisdiction to decide the application does not call for interference.

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The revision fails. It is dismissed.

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(THOMAS P JOSEPH, JUDGE)

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Sbna/-

Visalakshi v. P.P.Prakasan & Others

Case brief

What is this about?

What did the court decide?

Visalakshi v. P.P.Prakasan & Others

Case brief

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