Delhi High Court
Shanti Devi vs State & Ors on 12 August, 2014
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 418/2013
Decided on 12th August, 2014
SHANTI DEVI ..... Appellant
Through: Mr. Bhavook Chauhan, Adv.
versus
STATE & ORS ..... Respondents
Through: Mr. Vishal Bakshi, Adv. for R-2.
Mr. Aditya Sharma, Adv. for R-3.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K.PATHAK, J.(ORAL)
1. Appellant has challenged the order dated 19th September, 2013 passed
by the Administrative Civil Judge, Tis Hazari Courts, Delhi on a petition
under Section 372 of the Indian Succession Act filed by the respondent no.2
for grant of succession certificate in respect of debts and securities of Late
Shri Sant Singh and Late Smt. Karmo Bai, parents of respondent no.2.
Respondent nos. 2 and 3 are sisters of appellant. Respondent no.2 had taken
a plea before the trial court that appellant was not entitled to succeed the
estate of Late Shri Sant Singh and Late Smt. Karmo Bai since she was
adopted by her unlce, that is, Justice Gopal Singh. Trial court has granted
succession certificate to respondent nos. 2 and 3 excluding the appellant.
FAO 418/2013 Page 1 of 5
2. That is how appellant is before this Court. In my view, appeal against
the order passed by the Administrative Civil Judge is not maintainable in
this Court as competent court to deal with such appeals is that of a District
Judge.
3. Part X of the Indian Succession Act, 1925 deals with the 'succession
certificates'. Section 384 provides that an appeal shall lie to the High Court
from an order of a District Judge granting, refusing or revoking a certificate
under this Part. However, Section 388 vests power in the State Government
to invest any Court inferior in grade to a District Judge with power to
exercise the functions of a District Judge under Part X, by issuing a
notification in the Official Gazette. It further provides that 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 Part X upon the District Judge and the provisions of
said Part relating to the District Judge shall apply to such an inferior Court
as if it were a District Judge. Provisio to Section further envisages 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
FAO 418/2013 Page 2 of 5
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.
4. Relevant it would be to reproduce Section 388 of the Act for the sake of
ready reference, which reads as under :-
388. Investiture of inferior courts with jurisdiction of District
Court for purposes 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
FAO 418/2013 Page 3 of 5
Procedure, 1908 (5 of 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 himself 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.
5. Chapter 6 Part B of Delhi High Court Rules (Original Side) Volume II
deals with the issue of 'succession certificates'. Rule 2 provides that all
subordinate judges of the first and second class have been invested with the
functions of a District Court for the purposes of granting succession
certificates by Punjab Government Notification No. 781, dated 15 th July,
1914, which continues to be in force. It further envisages that an application
under Part X of the Indian Succession Act, 1925, will usually be dealt with
by subordinate Judges and appeals from their orders granting, refusing or
revoking certificates will lie in the District Judge. When a District Judge
FAO 418/2013 Page 4 of 5
finds it necessary to deal with any application under the Act as an original
Court the appeal will lie to the High Court under Section 384, sub-section
(1) of the Act.
6. In view of the above legal position, which emerges from a conjoint
reading of Section 388 of the Act and Rule 2 of Chapter 6 Part B of the
Delhi High Court Rules, application under Part X of the Act is to be dealt
with by subordinate judges and appeals from their orders granting, refusing
or revoking succession certificates will lie before the District Judge.
Accordingly, present appeal is not maintainable in this Court and would lie
before the District Judge.
7. Appellant may file an appeal before the concerned Distinct Judge
within one week which shall be heard by the District Judge on merits in
accordance with law without going into the question of limitation.
8. Appeal is disposed of in the above terms.
9. Dasti.
A.K. PATHAK, J.
AUGUST 12, 2014
ga
