Avadh Ram Shukla Chela Of Late ... vs Viraganand Chela Of Sri Sita Ram ...
2021 Latest Caselaw 11489 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18 								A.F.R.
 

 
Case :- FIRST APPEAL FROM ORDER No. - 169 of 2019
 

 
Appellant :- Avadh Ram Shukla Chela Of Late Nirmal Kumar Panigrahi
 
Respondent :- Viraganand Chela Of Sri Sita Ram Das Onkar Nath And Anr.
 
Counsel for Appellant :- Rakesh Kumar Srivastava,Jyotsana Srivastava
 
Counsel for Respondent :- Jai Prakash Singh,Mayank Pathak
 

 
Hon'ble J.J. Munir,J.

1. Heard Mr. Rakesh Kumar Srivastava, learned Counsel for the appellant and Mr. D.K. Pathak, learned Senior Advocate assisted by Mr. Mayank Pathak, learned Counsel appearing on behalf of the first respondent.

2. A succession certificate has been granted in favour of respondent no. 1 by the Civil Judge (Senior Division)/ FTC, Faizabad under Section 372 of the Indian Succession Act, 1925 (for short, 'the Act'). The succession certificate aforesaid, granted vide order dated 18.3.2019, entitles the first respondent to receive a sum of Rs. 42,07,656.82 that was property of the deceased Nirmal Kumar Panigrahi. The appellant, who contests the claim of the first respondent to the grant of succession, has preferred this appeal under Section 384 of the Act.

3. A preliminary objection has been raised by Mr. D.K. Pathak, learned Senior Advocate assisted by Mr. Mayank Pathak, learned Counsel appearing on behalf of the first respondent to the effect that this appeal is not cognizable by this Court, but by the learned District Judge, in view of the proviso to sub-section (2) of Section 388 of the Act.

4. Learned Counsel for the appellant, on the other hand, submits that the valuation of the succession petition under Section 372 of the Act is Rs. 42,07,656.82. He submits, on the strength of a Notification dated 05.02.2016 (for short, 'the Notification'), issued by this Court under sub-section (1)(b) of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 as amended by the U.P. Civil Laws Amendment Act, 2015, that an appeal from a decree or order not only in an original suit but in any proceeding, where the decree or order was made before or after the publication of the Notification and the value of the suit does not exceed Rs. 25 lacs, would lie to the District Judge. He submits that the consequence of this notification is that in all matters, where the value of the original suit or other proceedings decided by a Court inferior to that of the District Judge, is above Rs. 25 lacs, the appeal would lie to the High Court. It is, therefore, urged that the present succession petition and the proceedings arising therefrom, even if not a suit, falls within the definition of 'proceedings', where the decree or order is made and its valuation exceeds Rs. 25 lacs. As such, by dint of Section 21(1)(b) of the Bengal, Agra and Assam Civil Courts Act, 1887 as amended by the U.P. Act No. 14 of 2015 and the Notification of this Court dated 05.02.2016, the order impugned passed by the learned Civil Judge is appealable to this Court and not the District Judge.

5. Succession certificates are governed by Part X of the Act and Sections 371 and 372 of the Act provide:

"371. Court having jurisdiction to grant certificate.--The 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.

372. Application for certificate.--(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:--

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under Section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under Section 198 of the Indian Penal Code.

(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof."

6. Section 384 of the Act, which is about an appeal from orders granting succession, refusing or revoking a certificate, provides:

"384. Appeal.--(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.

(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908.

(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by Section 141 of that Code, an order of a District Judge under this Part shall be final."

7. A conjoint reading of Sections 371, 372 and 384 of the Act would show that the original jurisdiction to entertain and decide a petition for the grant of a succession certificate has been conferred by the Act upon the District Judge, within whose jurisdiction, the deceased ordinarily resided at the time of his death, and if he has no determined place of residence, the District Judge, within whose jurisdiction, any part of his property, may be found.

8. The order of the District Judge granting, refusing or revoking a succession certificate is appealable to this Court under the Act. Section 388 of the Act, however, empowers the State Government by Notification in the Official Gazette to invest any Court, inferior in grade, to a District Judge with power to exercise the functions of a District Judge under Part X. Section 388 of the Act reads:

"388. Investiture of inferior Courts with jurisdiction of District Court for purpose of this Act.--(1) The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.

(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:

Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.

(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by Section 141 of that Code, be final.

(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.

(5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area.

(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge."

9. The State Government, in exercise of powers under sub-section (1) of Section 388 of the Act, have issued a notification investing all Civil Judges in the State (which would now bear reference to the Civil Judge of the Senior Division) with power to exercise the functions of the District Judge under Part X of the Act.

10. The relevant Notification published in the U.P. Gazette, dated March 19, 1955 reads:

"Judicial Deptt. no. 4516(i)/VII-900(8)-53, dated March 11, 1955] 33 [Published in the U.P. Gazette, dated March 19, 1955, Part I, p. 341

In supersession of all previous notifications on the subject, and in exercise of the powers conferred by sub-section (1) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925), the Governor of Uttar Pradesh is pleased to invest all Civil Judges in the State with power to exercise the functions of a District Judge under Part X of the said Act, within the local limits of their respective jurisdiction as Civil Judge."

11. There is another notification on the subject also issued on March 19, 1955. It reads:

"Judicial Deptt.no.4516(iv)/VII-900(8)-53, dated March 11, 1955] 36 [Published in the U.P. Gazette, dated March 19, 1955, Part I, p. 342

In supersession of all previous notifications on the subject, and in exercise of the powers conferred by sub-section (1) of Section 388 of the Indian Succession Act, 1925 (Act XXXIX of 1925), the Governor of Uttar Pradesh is pleased to invest all Munsifs in the State with power to exercise the functions of a District Judge under Part X of the said Act, within the local and pecuniary limits of their respective jurisdiction as Munsifs."

12. By the later Notification, powers of the District Judge under Part X of the Act have been invested by the State Government with all Munsifs in the State within the local and pecuniary limits of their respective jurisdictions. It must be remarked here that Munsifs have since long been re-designated as Civil Judges of the Junior Division and any reference to a Munsif would now bear reference to Civil Judges of the Junior Division.

13. The Notification issued by the High Court on 5th February, 2016, whereon the learned Counsel for the appellant Mr. Rakesh Kumar Srivastava heavily places reliance, reads:

"HIGH COURT OF JUDICATURE AT ALLAHABAD

Notification No. 35/IVg-27, Dated: Allahabad: 05.02.2016

In exercise of the powers conferred by sub-section 1(b) of Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887 as amended by the Uttar Pradesh Civil Laws (Amendment) Act, 2015 (U.P. Act No. 14 of 2015), the High Court is pleased to direct that an appeal from a decree or order of a Civil Judge where the value of the Original suit in which, or in any proceeding arising out of which the decree or order was or is made whether instituted or commenced before or after the date of publication of this notification in Official Gazette did not or does not exceed twenty five lakhs rupees for purposes of filing appeals shall lie to the District Judges.

By order of the Court,

(Sheo Kumar Singh-I)

Registrar General

No. 2289 /IVg-27 Allahabad Dated 05.02.2016"

14. The thrust of the submission of Mr. Srivastava is that the Forum of appeal, after amendment of sub-section (1) of Section 21 of Bengal, Agra and Assam Civil Courts Act, 1887, would be this Court from an order of the Civil Judge (Senior Division) granting a succession certificate, where the valuation of the petition is Rs. 25 lacs or more. He emphasizes that the pecuniary limitation on the jurisdiction of the District Judge to hear appeals from the decrees or the orders made by the Civil Judge (Senior Division) is limited to the value where it does not exceed Rs. 25 lacs. All other decrees and orders would be appealable to this Court, if the Civil Judge passes them in suits or proceedings where the value exceeds Rs. 25 lacs. It emphasized that this is not confined to suits alone, but any other proceedings where the Civil Judge (Senior Division) passes a decree or order, whether instituted or commenced before or after publication of Notification dated 05.2 2016.

15. This Court must remark that the submission of learned Counsel for the appellant is based on a misreading of the Notification. The clear phraseology of the Notification shows that it bears reference to original suits, wherein an order or decree is made or in any proceedings arising from the suit where the decree or order is made. The other part or class of cases bear reference to proceedings, arising out of suits and not statutory proceedings under Special Acts. The Notification has no application, in the opinion of this Court, to a petition for succession under the Act which are statutory proceedings and by no means, a suit. A suit is well-known to be a proceeding that commences on the presentation of a plaint. It is brought to enforce civil rights of a party, where there is no remedy provided by Statute or is not barred by law, expressly or implicitly. A succession petition, by contrast, is a statutory proceeding postulated under the Act, which is a special statute, creating rights and liabilities, and also providing remedies. Succession certificate, its grant, refusal or revocation, are all remedies spelt out by the Act and by no means suits, which the Civil Court is entitled to take cognizance of in the exercise of its inherent jurisdiction to try all causes of a civil nature.

16. Quite apart, the Act is a self contained Code and Section 388 of the Act is not governed by the general scheme of division of original and appellate jurisdiction under the Code of Civil Procedure. Part-X generally confers original jurisdiction on the District Judge under Section 371 of the Act and postulates an appeal to the High Court under Section 384 of the Act. Section 388 of the Act carves out an exception, empowering the State Government to invest original jurisdiction of the District Judge to grant a succession certificate with a Court of a grade inferior to the District Judge, who would then exercise functions of a District Judge under Part-X. The proviso to sub-section (2) of Section 388 of the Act makes it explicit that wherever the jurisdiction of the District Judge under Part-X is invested by the State Government in a Court inferior to the District Judge, the appeal envisaged under sub-section (1) of Section 384 of the Act would lie to the District Judge and not the High Court. The emphasis in the phraseology of the proviso where it says "and not to the High Court" makes it pellucid that wherever jurisdiction of the District Judge is invested in a Court inferior in grade to the District Judge, the appeal envisaged under Section 384 (1) of the Act would lie to the District Judge and not to this Court. It would be noticed that the forum of appeal, in case of conferment of powers of a District Judge on a Court of inferior jurisdiction, is not subject to any kind of a clause about valuation of the succession petition. It is free from valuation.

17. The dichotomy in the forum of appeal envisaged under Section 21(1)(b) of the Bengal, Agra and Assam Civil Courts Act, 1887 between the District Judge and the High Court dependent upon valuation of the suit or other proceedings arising out of the suits tried by the Courts inferior to the Court of the District Judge is foreign to the scheme of the Act. In this connection, reference may be made to the decision of a Division Bench of this Court sitting at Allahabad in Prem Chand vs. Sunil Kumar and Others; 1990 AWC 593 All, where the same question that is involved here arose. In that case also, an appeal under Section 384 of the Act had been instituted before this Court against an order rejecting an application for revocation of the succession certificate granted to the respondents to the appeal and also an order extending the grant of succession certificate to some other assets. The preliminary objection taken was about the maintainability of the appeal, saying that the powers of the District Judge conferred on the Civil Judge under Section 388(1) of the Act was without reference to valuation of the claim vis-a-vis the forum of appeal.

18. The Division Bench upheld the objection and opined that in a case where powers under Section 388(1) of the Act to grant or revoke succession certificate are conferred to a Court inferior to that of a District Judge, the forum of appeal envisaged is the District Judge and that is dehors the valuation of the petition. In Prem Chand (supra), it was held:

"3. Part X of the Succession Act deals with matters relating to grant of succession certificate and contains Sections 370 to 390 in that part. Under Section 372 an application for grant of a Succession Certificate ordinarily lies before the District Judge within whose territorial jurisdiction the deceased ordinarily resided or part of his property was situate. Section 384 deals with the forum where the appeal in such cases shall lie. It is, however, of significance that the section is prefaced with the words, 'subject' to other provisions of this part. Thus, although in the ordinary circumstances an appeal against order passed in proceedings in this Chapter shall lie to the High Court but this is hedged by the condition that there is no other provision contrary to this or which may provide otherwise.

4. Section 388 of the Act, however, lays down somewhat different provision, even if not contrary. The relevant part of the section may be extracted here as under:

"388(1). The State Government may, by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this part.

(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:

Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge."

Thus where powers of the Distinct Judge under this part are conferred upon an inferior Court by a notification issued by the State Government, such" court shall exercise the powers of the District Judge so far as-Part X of the Act is concerned. An appeal against its orders instead of being filed before the High Court, will lie before the District Judge. In fact whatever powers the District Judge enjoys in this part after notification gets vested in the Civil Judge.

5. It is not disputed here, that a notification conferring powers of the District Judge on the Civil Judge has been issued and the proceedings out of which the present appeal arises had been disposed of by that Court in exercise of powers so conferred.

6. For the appellant, however, it was submitted that in view of amendment of Bengal, Area and Assam Civil Courts Act 1887, in this State an appeal to the High Court lies in all matters of civil nature where the valuation of the suit or proceeding was more than Rs. 20,000/-. Since the valuation of proceeding in this matter was admittedly more than Rs. 20,000/- the present appeal was cognizable by the High Court. This argument however, overlooks some crucial words occurring in the relevant provision of that Act. Chapter III of the 1887 Act deals with ordinary jurisdiction of the various kind of Civil Courts established under that Act While under Section 18 the pecuniary jurisdiction of the Court of District Judge and the Civil Judge extends to all suits of civil nature but subject only to the condition that the suit must be filed in the court of lowest grade (Section 15, C.P.C) Since Section 19 of the Act fixes the jurisdiction of the Court of Munsif at Rs. 5000/- (now Rs. 10,000/-) all suits or proceedings of a value more than that will ordinarily lie in the Court of the Civil Judge or the District Judge subject to the provision of any other Act then in force. Sections 20 and 21 then deal with forum where an appeal will lie against the order of the District Judge or Additional District Judge and from the order of the Civil Judge or the Munsif respectively. In the case of the former, appeal will lie to the High Court unless provided to the contrary in any other enactment. In the latter case the appeal shall lie to the District Judge if the valuation of the suit or proceeding be Rs. 20,000/- or less and to the High Court in other cases.

7. It is, however, significant to note that provision of Section 21 is qualified by the expresssion save as aforesaid." This means that Section 21 is in the nature of a corollary to Section 20.

8. Section 20 also is subject to an exception as would be clear from the expression "save as otherwise" provided by enactment for the "time being in force." Reading Sections 20 and 21 together leads to the irresistible conclusion that an appeal of the value of more than Rs. 20,000/- would lie before the District Judge if there be in force an enactment which provides otherwise. These provisions if read in the light of Section 388(2) proviso make it abundantly clear that in such cases an appeal shall lie to the District Judge despite what is set out in S. 21(1-A) of the Bengal, Agra and Assam Civil Courts Act, 1887. The view that we are taking substantially gets support from AIR 1960 Raj 9 Mst. Bhanwar Bai vs. Balmukund where, while interpreting Sections 384 and 388 of the Indian Succession Act the Court held as under:--

"It clearly follows from the combined operation of Section 388 and Section 384 that where an order within the meaning of Section 384 of the Act has been passed by a court inferior to that of the District Judge within the meaning of subsections (1) and (2) of Section 388 then an appeal from an order granting, refusing or revoking a certificate passed by such Judge shall lie to the District Judge and not to the High Court. It is true that an inferror court properly invested with jurisdiction to decide such cases by the State Government in accordance with sub-section (1) of Section 388 has concurrent jurisdiction with the District Court in so far as the exercise of all the powers conferred by this part of the Succession Act is concerned but this must be read subject to the provision to sub-section (2) of Section 388, which clearly provides that an appeal from any order of an inferior court falling within the scope of Section 384 of the Act can only lie to the District Judge and not to the High Court."

9. In view of what we have said above, we are of the opinion that there is substance in the preliminary objection raised and it must be upheld. The High Court will, therefore, have no jurisdiction to entertain the appeal as it ought to have been filed before the District Judge. In view of this we direct that the memo of this appeal be returned to the appellant for being presented before the competent court i.e the District Judge, Saharanpur."

19. The question again arose before a Division Bench of this Court at Allahabad in Dy. Inspector General, Group Centre, C.R.P.F. vs. Smt. Rakesh Devi and others decided on 27.07.2015, where their Lordships of the Division Bench, noticing the decision in Prem Chand (supra), held:

"In compliance of the aforesaid order, office has submitted a report dated 13-05-2015 to the effect that in view of Section 371 of the Act, the District Judge has jurisdiction to grant succession certificate and First Appeal From Order lies before this Court and the Civil Judge has wrongly entertained the case issued succession certificate. However, the District Judge has submitted a report dated 15-04-2015 to the effect that the Civil Judge (Senior Division), Ghaziabad has jurisdiction to entertain the proceedings under Section 371 of the Act and an appeal against such order shall lie to the District Judge as provided under Section 388 of the Act. The District Judge in his report has placed reliance on the Notification No. 4516(i)VII-900(8)-53 dated March 11, 1955 & No. 4516(iv)/VII-900(8)-53 dated March 11, 1955 investing all Civil Judges in the State with power to exercise functions of a District Judge under Part X of the Act within local limits of the respect jurisdiction as Civil Judges. A Division Bench of this Court in the case of Prem Chand v. Sunil Kumar & others, 1990 A.W.C. 593 has held that in view of the notification issued by the State Government in exercise of powers under Section 388 of the Indian Succession Act investing Civil Judges with the power to exercise the functions of a District Judge under Part-X of the Act, it is the Civil Judge who has the power to entertain a proceeding and grant succession certificate and the appeal shall lie to the District Judge in view of proviso to Section 388."

20. Thus, there is not an iota of doubt that once jurisdiction to take cognizance of and decide a petition for the grant of a succession certificate is invested by the State Government in a Court inferior in grade to the District Judge, by virtue of the proviso to sub-section (2) of Section 388 of the Act, it is the District Judge alone who is competent to entertain and decide the appeal under Section 384(1) of the Act. The appeal does not lie to this Court and the forum of appeal is not governed by the value of the subject matter of succession, or the valuation of the succession petition.

21. Viewed in this perspective, it is held that this appeal is not conginzable by this Court, but by the District Judge. It is, accordingly, ordered that this appeal be returned to the appellant for presentation before the Court of competent jurisdiction. Since, an interim order was granted on 20.09.2019, while entertaining this appeal, directing parties to maintain status quo, it is provided that for a period of four weeks hence, parties shall maintain status quo.

22. Let the lower court records be returned to the District Judge, Faizabad, forthwith.

Order Date :- 16.12.2021

Vik/-

(J.J. Munir,J.)