Madhuribai Wd/O Mohan Walke And ... vs Annapurnabai Keshao Walke And ...
2003 Latest Caselaw 510 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Rule. By consent, rule made returnable forthwith.

2. The petitioners challenge the order dated 26-7-2002 passed by the trial Court rejecting the application filed by the petitioners under Order 7, Rule 11 of Civil Procedure Code.

3. The contention of the petitioners is that the application filed by the respondents under Section 372 of Indian Succession Act in the Court of Civil Judge, Senior Division, Yavatmal is not maintainable in view of the fact that the pleadings in the plaint apparently disclose that the deceased Mohan s/o Keshaorao Walke at the time of his death was the resident of Gadchiroli which is a separate district from Yavatmal. The contention is sought to be disputed by the respondents on the basis that paragraph No. 1 of the plaint/application discloses that the deceased Mohan was ordinary resident of Wedshi, Tq. Ralegaon which is in the district of Yavatmal.

4. Drawing attention to Section 372 of the Indian Succession Act, 1925, the learned Advocate for the petitioners submitted that the application under Section 372 is to be filed in the district where the deceased had been ordinarily residing at the time of his death and Considering the fact disclosed in the application that at the time of the death of Mohan, he was posted at Gadchiroli, it is apparent that he was residing at Gadchiroli at the time of his death and, therefore, the application under Section 372 of the Indian Succession Act could have been filed within the district of Gadchiroli and not at Yavatmal. On the other hand, referring to Section 372(1)(c), the learned Advocate for the respondents has submitted that the widow of Mohan had vacated the premises which were allotted for the residence of Mohan immediately after his death and has shifted her residence at Yavatmal and, therefore, no fault can be found with the application having been filed at Yavatmal.

5. Section 371 of the Indian Succession Act provides that 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 part X of the said Act. Part X of the said Act speaks of succession certificate on being asked for by the concerned parties. Section 372(1) of the said Act relates to the applications for issuance of such certificate and it reads thus :--

Section 372(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 (5 of 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 residence;
 

(d)     ----------------------
 

(e)     ----------------------
 

(f)     ----------------------  
 

6. Plain reading of Section 371 would disclose that it relates to issue of jurisdiction of the Court to grant certificate, whereas Section 372 refers to the application to be filed by the parties asking for succession certificate. Clauses (a) to (f) of Sub-section (1) of Section 372 relate to the particulars which are to be furnished by the applicant along with the application requesting for succession certificate. They do not relate to the jurisdiction of the Court either to entertain the application for succession certificate or to grant any such certificate. The provisions relating to the jurisdiction of the Court to entertain such application and/or to grant succession certificate are to be found in Section 371 as rightly submitted by the learned Advocate for the petitioners. Accordingly, Section 371 empowers the District Judge within whose jurisdiction the deceased was either ordinarily residing at the time of death or in cases where at such 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 can also entertain such application and grant such certificate.

7. In the case in hand, paragraph 1 of the application reads thus :--

"That, he Mohan s/o Keshaorao Walke was ordinarily resident of Wedshi, Tq. Ralegaon, Distt. Yavatmal. He had immovable property at Wedshi. He is died on 5-8-1998 in Gadchiroli district while he was on his duty. Though he was ordinarily resident of Wedshi, he was in service as a constable in S.R.P. Group No. 7 at Dound at and at the time of his death he was posted at Gadchiroli. He was in service and therefore he was residing at the place of his posting and as the place where he has directed to perform duty. His office duty was at Dound."

8. Pleadings in paragraph 1 of the application, therefore, disclose that Mohan was ordinarily resident of Wedshi, which is situated in the district of Yavatmal. However, at the time of his death he was posted at Gadchiroli and on account of his employment he was residing at the place of his posting. Considering these statements of facts relating to residence of the deceased at the time of his death and applying the law as provided under Section 371, it would disclose that the ordinary residence of the deceased Mohan at the time of his death was at Gadchiroli where he was posted and where he was residing. It is not in dispute that Gadchiroli is a district place, different from the district of Yavatmal. The provisions empowering the District Judge within whose jurisdiction any part of the property of the deceased is situated to entertain an application and grant such certificate is in alternative to the provision relating to the jurisdiction of the District Judge within whose area the deceased was found ordinarily residing at the time of his death. The alternative provided under Section 371 is only in cases where the deceased had no fixed place of residence at the time of his death. Can it be stated in the case in hand that Mohan had no fixed place of residence at the time of his death? Perusal of contents of paragraph 1 of application would disclose that though Mohan was ordinarily resident of Yavatmal district, he was required to reside at Gadchiroli on account of his duties and accordingly he was residing at Gadchiroli at the time of his death. Being so, the ordinary place of residence for Mohan at the time of his death was Gadchiroli and hence, the District Judge at Gadchiroli could have entertained the application and only the District Judge at Gadchiroli can grant the succession certificate pursuant to the death of Mohan and not the District Judge at Yavatmal.

9. For the reasons stated above, therefore, the application filed by the petitioner under Order 7, Rule 11 though was liable to be rejected, yet the Court below was enjoined to exercise the powers under Order 7, Rule 10 of Civil Procedure Code as the provisions of Civil Procedure Code are also applicable to the proceedings initiated pursuant to application under Section 372 of the Indian Succession Act.

10. In the result, therefore, the revision partly succeeds. The order rejecting the application filed by the petitioners under Order 7, Rule 11 though does not warrant any interference, at the same time it was necessary for the Court below to exercise the powers under Order 7, Rule 10 of Civil Procedure Code and to return the application to be filed in the proper Court. The trial Court accordingly to pass appropriate order in terms of Order 7, Rule 10 within a period of two months from the date of remand of these proceedings to the trial Court after hearing the parties. Rule is made absolute accordingly with no order as to the costs.