Sanju Devi And Ors. vs State And Anr.
2014 Latest Caselaw 112 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          FAO No.477/2013

%                                                    6th January , 2014

SANJU DEVI AND ORS.                                      ......Appellants
                  Through:               Mr. Ghanshyam, Advocate.

                           VERSUS

STATE AND ANR.                                             ...... Respondents
                           Through:      Ms. Ritgaya Rai, Advocate for
                                         respondent No.1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             By this first appeal under Section 348 of the Indian Succession

Act, 1925 (hereinafter referred to as 'the Act') the appellants/petitioners

impugn the order of the Court below dated 18.9.2013 which has dismissed

the petition filed for a succession certificate on the ground that there is no

admitted factum of the death of Sh. Brij Kishore and the petitioners are only

relying upon presumption of civil death on account of Brij Kishore not

available for the last seven years, and thus the aspect of civil death will have

to be decided in a civil court in summary proceedings seeking a succession

certificate.
FAO No.477/2013                                                   Page 1 of 4
 2.           Trial Court has not decided the case on merits but observed that

proceedings under the Act for obtaining succession certificate are summary

proceedings and the petitioner has to really file a civil suit to establish the

factum of death and then claim a decree accordingly from the civil court.


3.           I do not find any illegality whatsoever in the impugned order

dated 18.9.2013 because proceedings under the Act whether for a probate or

letters of administration or succession certificate commence on the factum of

death of the concerned person with respect to whose estate a succession

certificate or probate or letters of administration is sought. Where death

itself is not a fact, and the death itself is in question, it is necessary that the

civil court passes a decree with respect to declaration of death of the

concerned person, namely Sh. Brij Kishore in this case, and only thereafter

would the benefits of the estate of the deceased fall to the

appellants/petitioners. This is all the more so in the present case because

one of the legal heirs of the deceased Sh. Brij Kishore, namely the mother-

Smt. Dulari Devi is sued as a respondent in the proceedings and thus the

appellants/petitioners are not the old successors-in-interest of late Sh. Brij

Kishore.




FAO No.477/2013                                                     Page 2 of 4
 4.           Counsel for the appellant raised two arguments before this

Court. One is on the basis of Section 373(3) of the Act and other is on the

basis of the judgment of the Supreme Court in the case of The State of

Punjab and Anr. Vs. Shamlal Murari and Anr. (1976) 1 SCC 719.

5.           The first argument which is raised as per Section 373(3) of the

Act is misconceived for the reason that no doubt the provision allows

examination of questions of facts as per the appropriate circumstances in the

case, however, the issue and question of fact which pertains to the factum of

civil death, has necessarily to be established in the civil court inasmuch as

the proceedings under the Indian Succession Act proceeds on the actual

factum of death and not because of a deemed civil death on account of non-

availability of the concerned person for a particular period of time. Section

373 (3) cannot be held to be dealing with question of fact of the death of the

person whose death is in issue. In any case, I fail to understand how the

petitioners/appellants are prejudiced because the relief which they will get in

the succession certificate case, they will get the same relief in the civil suit,

and the appellants/petitioners are today not at loss because no Court fees

have been paid and which would have to be paid only when succession

certificate would have been granted.

FAO No.477/2013                                                    Page 3 of 4
 6.             So far as the second argument made on the basis of the

judgment of the Supreme Court in the case of Shamlal Murari (supra) is

concerned, the argument is misconceived because all that the judgment of

the Supreme Court states in the case relied upon is that procedural law is not

tyrant but servant.     In the present case, we are not dealing with the

procedural law but the substantial law i.e the Indian Succession Act, 1925.

Therefore, in my opinion, the judgment relied upon by the appellants has no

application.


7.             In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




JANUARY 06, 2014                              VALMIKI J. MEHTA, J.

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