Parkashwati And Anr. vs Amar Prakash And Anr.
1980 Latest Caselaw 255 Del

JUDGMENT

Sultan Singh, J.

 (1) The question for decision is :    "WHETHERan appeal lies under clause X of the Letters Patent from the judgment of a learned single Judge of this Court condoning delay in filing the first appeal from the order of the Subordinate Judge with powers to grant succession certificate."  

(2) This judgment will dispose of two appeals L.P.A. Nos. 39 and 40 of 1980.   

(3) The relevant facts are: Ram Parkash Sharma died on January 9, 1976, and his widow Chanan Devi applied for the grant of succession certificate. This petition was being prosecuted by Amar Parkash Sharma as her next friend because she was considered to be of unsound mind and a lubatic lodged in the mental hospital Shahdara and Amar Parkash Sharma was appointed as Manager of the assets of the deceased by order dated October 5, 1976 of the District & Sessions Judge, Delhi. In this petition objections were filed by one Parkash Wati cla iming herself to be the widow of the deceased. Parkash Wati also filed a separate petition under Section 372 of the Indian Succession Act on the ground that she is the second wife of the deceased. She also imp leaded her minor daughter Kumari Seema Sharma as her natural guardian. Chanan Devi the first wife was made a respondent. Smt. Chanan Devi however, died during the trial of the two petitions which were consolidated.

(4) Amar Parkash Sharma thereafter filed a fresh petition under Section 372 of the Indian Succession Act claiming succession certificate on the ground that he is the brother of the deceased. This petition was consolidated with the petition filed by Parkash Wati and Kumari Seema Sharma. The main dispute before the trial court was whether Parkash Wati is the second wife of the deceased and Kumari Seema Sharma is his daughter. The trial court held that Parkash Wati failed to prove that she is the legally wedded second wife of the deceased. The trial court, however, held that Kumari Seema Sharma although illegitimate offspring is legally entitled to inherit the property of her father Ram Parkash Sharma, and that she supersedes the right of her mother and that of the brother and sister of the deceased. Successn certificate was therefore granted to Kumari Seema Sharma through her guardian Parkash Wati. The petition of Amar Parkash Sharma for the grant of succession certificate was dismissed.

(5) Amar Parkash Sharma filed two appeals before the District Judge, Delhi against the order dated November 21, 1978 of the trial court granting succession certificate to Kumari Seema Sharma and dismissing his petition for grant of such a certificate. Shri B. B. Gupta, Additional District Judge by his order dated November 6, 1979 held that his court has no jurisdiction to hear the appeals and the same were, therefore, returned for presentation to the court having jurisdiction. Amar Parkash Sharma thereafter filed the two appeals in this Court which were registered as F.A.O. No. 235 and 236 of 1979. He also filed applications under Section 5 of the Limitation Act for condensation of delay in filing the appeals on the ground that he originally filed the appeals before the District Judge under the bona fide advice of his counsel Shri A. C. Gambhir, Advocate. The learned single Judge by order dated January 11. 1980 held that the advice given by Mr. A. C. ;Gambhir, Advocate was a bona fide advice and condoned the delay in filing the two appeals in this Court.

(6) Parkash Wati and Kumari Seema Sharma have filed these two appeals under clause X of the Letters Patent. It is contended on behalf of the respondents that the order of the learned single Judge is not a 'judgment' within the meaning of clause X of the Letters Patent and therefore the appeals arc not maintainable. It is argued that the order of the single Judge neither affects the merits of the controversy between the parties to the litigation, nor does it terminate or dispose of the litigation on any ground. We find there is force in this argument. The learned single Judge on merits concluded that the appeals before the District Judge were filed under a bona fide mistake of the counsel. He condoned the delay in filing the appeals in this Court. It is well known that the law of limitation does not extinguish the right of a party but it only bars the remedy. The learned single Judge has condoned the delay. His order does not affect the merits of the case. It has been held by the Supreme Court that if an order neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground it does not amount to 'judgment' within the meaning of the Letters Patent. '(See : Asruumati Debi v. Kumar Rupendra Deb Rajkot and others, . In Begum Aftab Zamani v. Shri Lal Chand Khanna, Air 1969 Delhi 85(2) this Court also held that the expression 'judgment' in clause 10 of the Letters Patent means an order which affects the merits of controversy between the parties by determining some disputed right or liability. The controversy between the parties is whether the present appellant Kumari Seema Sharma was rightly held to be entitled to the grant of succession certificate by the trial court.

(7) The order of the learned single Judge does not affect this controversy. We are, therefore, of the view that the present appeals under clause X of the Letters Patent as applicable to this Court are not maintainable.

(8) Arguments on merits were also addressed, 8ut we do not express any view on merits as we are of the opinion that appeals are not maintainable. The appeals are therefore, dismissed with no order as to costs.