Gujarat High Court
Maheshbhai Ramaniklal ... vs Dineshbhai Ramniklal Contractor on 24 June, 2021
Bench: Nikhil S. Kariel
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 32 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/SECOND APPEAL NO. 32 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
============================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
============================================
MAHESHBHAI RAMANIKLAL CONTRACTOR
Versus
DINESHBHAI RAMNIKLAL CONTRACTOR
============================================
Appearance:
MR SUDHIR NANAVATI FOR M/S. NANAVATI &
NANAVATI(1933) for the Appellant(s) No. 1
MR KS NANAVATI FOR M/S. NANAVATI ASSOCIATES(1375) for
the Respondent(s) No. 1
============================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/06/2021
ORAL JUDGMENT
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
1. Heard learned Senior Counsel Shri Sudhir Nanavati for M/s.
Nanavati & Nanavati for the appellant and learned Senior Counsel
Shri Kirtikant S. Nanavati for M/s. Nanavati Associates for the
respondent.
2. By way of present Second Appeal, the appellant challenges the
judgment and order passed by the learned 5 th Additional District
Judge, Kheda at Nadiad in Regular Civil Appeal No.71 of 2019
dated 21.10.2019, whereby the judgment and decree passed by the
learned Principal Senior Civil Judge, Kheda, in Civil Misc.
Application No.282 of 2018 dated 03.04.2019 was set aside and
consequently, the Succession Certificate issued in the name of the
appellant - Maheshbhai Ramniklal Contractor vide judgment and
order dated 20.04.2017 in Succession Application No.73 of 2016
passed by learned Principal Senior Civil Judge, Kheda at Nadiad,
had been revoked.
3. Brief facts leading to the Second Appeal can be summarized as
follow:
3.1 The appellant herein had preferred Succession Application
No. 73 of 2016 before the learned Principal Senior Civil
Judge, Kheda at Nadiad under Section 372 of the Indian
Succession Act, 1925, inter alia contending that his parents
Ramniklal Ishwarlal Contractor and Madhuben Ramniklal
Contractor were residents of Nadiad town and they were
owners of the movable property in form of shares and
other immovable properties of which they were
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
independent owners. It is stated that said Ramniklal
Contractor had expired on 01.02.2002 at Nadiad and
Madhuben Contractor had expired on 03.04.2006. It was
mentioned that the appellant is a "straight line" legal heir of
deceased Ramniklal Contractor and Madhuben Contractor
and whereas they have left behind the properties mentioned
at Schedule "A". The appellant had thus sought for
Succession Certificate since the deceased had died and
whereas the appellant had also claimed that he had an
agreement on Rs.10/- stamp paper signed by his parents.
The appellant had also claimed that he had not made any
application for grant of Succession Certificate before any
other Court. The learned Civil Court had directed the
applicant therein - appellant herein to have publish the
public notice in the newspaper and it was done in the
newspaper "Jay Hind" dated 22.10.2015. The applicant had
also produced documentary evidence including xerox copy
of the pedigree affidavit executed before a Notary at
Exhibit 10, wherein the appellant had stated that he was the
sole legal heir of the deceased Ramniklal Contractor and
Madhuben Contractor. The learned Principal Senior Civil
Judge, Kheda at Nadiad vide judgment and order dated
20.04.2017 after hearing learned Advocate for the appellant
and after considering the documents on record had inter
alia framed the following issues for determination, the chart
showing issues and findings are reproduced herein below:
ISSUES
1. Whether the applicant proves that the In Affirmative
parents of applicant have expired?
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2.Whether the applicant proves that his In Affirmative
parents was holding shares valued at
Rs.55,07,026/- as mentioned in the
Schedule?
3. Whether the applicant proves that no Will In Affirmative
or partition writing is executed by parents of
applicant regarding the said properties?
4. Whether the applicant proves that he is In Affirmative
sole legal heir of his parents?
5. Whether the applicant is entitled to get In Affirmative
Succession Certificate as prayed for?
6. What order? As per final order.
3.2 It would be pertinent to mention herein that learned Civil
Court had come to a conclusion that the applicant therein -
appellant herein was the sole heir of his parents. Ultimately,
the learned Civil Court had been pleased to issue
Succession Certificate in the name of the appellant herein
for the purpose of transferring the shares of his parents in
his name.
3.3 It would be pertinent to mention herein that the
respondent had originally, after the Succession Certificate
had been granted by the learned Civil Court in favour of
the present appellant approached this Court by preferring
First Appeal (Filing ) No.2935 of 2017 and whereas vide
order dated 09.07.2018 of this Court (Coram: J.B.
Pardiwala, J.), the respondent herein had sought permission
to withdraw the said proceedings with a liberty to file
appropriate proceedings before the appropriate forum,
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which liberty had been reserved. After the aforesaid order
had been passed by this Court, the respondent herein had
moved an application under Section 383 of the Indian
Succession Act for revocation of Certificate being Civil
Misc. Application No.282 of 2018 inter alia submitting that
the appellant had made false assertion before the Court for
issuance of Succession Certificate and whereas the appellant
had concealed material facts from the Court and therefore,
Succession Certificate had been obtained fraudulently by
the appellant. It was submitted that the deceased Ramniklal
Contractor and Madhuben Contractor had 3 children
namely Pravinbhai Contractor, Maheshbhai Contractor
(present appellant / original applicant) and Dineshbhai
Contractor (present respondent herein). It was stated that
Pravinbhai had expired on 08.05.1998 before Ramniklal
Contractor and Madhuben Contractor had expired and that
wife of Pravinbhai had expired on 18.07.2016 before the
demise of Ramniklal Contractor and Madhuben Contractor
and that Pravinbhai Contractor was survived by a daughter
named Sonal, who was married on 21.02.2006. It was
further stated that Ramniklal Contractor and Madhuben
Contractor had 3 legal heirs being Maheshbhai, Dineshbhai
and Sonal - daughter of late Pravinbhai. It was further
submitted that the pedigree affidavit executed by the
appellant was false inasmuch as the appellant claimed that
he was sole legal heir of the deceased Ramniklal Contractor
and Madhuben Contractor. It was further pointed out that
while learned Civil Court vide order dated 24.11.2016 had
directed to publish public notice in a newspaper having vide
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circulation and whereas the appellant had got the public
notice published in a newspaper which was being published
from Ahmedabad and more particularly, in the North
Gujarat edition of such newspaper and therefore, the
respondent was not aware about such notice and therefore,
the respondent could not submit objection with regard to
grant of Succession Certificate. A contention had also been
raised that the reliance upon an agreement of stamp paper
of Rs.10/- between the appellant and his parents was also
misplaced since such agreement was bogus and fraudulent.
Further, reliance had also been placed upon an award of
Arbitrator with regard to two Civil Suit Nos.227 of 1998
and 228 of 1998. Thus, on these grounds, the respondent
had sought for revocation of the Succession Certificate
issued in favour of the appellant herein. The learned
Principal Senior Civil Judge, Kheda at Nadiad vide
judgment and order dated 03.04.2019 passed in Civil Misc.
Application No.282 of 2018 had been pleased to reject the
application preferred by the present respondent herein.
3.4 The respondent thereupon had preferred Regular Civil
Appeal No.71 of 2019 before the learned District Court,
Kheda at Nadiad against the judgment and order passed by
the learned Principal Senior Civil Judge, Nadiad in Civil
Misc. Application No.282 of 2018 dated 03.04.2019.
Learned 5th Additional District Judge, Kheda at Nadiad,
vide judgment and order dated 21.10.2019, had been
pleased to set aside order passed by the learned trial Court
and furthermore, the Succession Certificate granted in
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favour of the appellant herein was also revoked. The
learned First Appellate Court had come to a conclusion that
the appellant was not the sole legal heir of his parents, who
died intestate. The Court had also come to the conclusion
that since Section 372 of the Indian Succession Act, 1925,
particularly Sub-Section 1(c) thereof required the applicant
to mention the family or other relatives and their residences
and since the appellant in his application had mentioned
himself as sole legal heir of his parents and had not joined
other Class I legal heirs of the deceased as per the Hindu
Succession Act, 1956, therefore, the appellant by doing so
had made false suggestion and concealed material facts and
therefore, the Certificate was defective and obtained
fraudulently as per the Clause (b) of Section 383 of the
Succession Act. The Court had also held that the public
notice was not given in newspaper having wide circulation
rather the public notice was published in a newspaper
having limited circulations in North Gujarat and therefore,
the direction of the Trial Court had not been obeyed in true
letter and spirit and the proceedings was held to be
defective as per Section 383 of the Succession Act. Learned
First Appellate Court had also noted that order in Civil Suit
Nos.227 and 228 of 1998 as well as the agreement between
the applicant and his parents at Exhibit 36 were not made
basis for obtaining Succession Certificate in Succession
Misc. Application No.73 of 2016 whereas according to the
learned First Appellate Court, reliance placed upon the said
documents by the learned Trial Court while passing
judgment and order dated 03.04.2019 in Civil Misc.
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
Application No.282 of 2018 was misplaced. Based upon the
aforesaid conclusion, learned Appellate Court had allowed
the Appeal and had passed direction as stated hereinabove.
The appellant being aggrieved and dissatisfied by the order
passed by the District Court, has approached this Court by
way of this Appeal.
4. Learned Senior Counsel Shri Sudhir Nanavati for M/s. Nanavati
& Nanavati for the appellant has assailed the order passed by the
Appellate Court by submitting that the appellant had sought for
Succession Certificate with respect to shares mentioned in
Schedule A to Succession Misc. Application No. 73 of 2016 and
whereas such shares had been handed over to the appellant vide
settlement as per order passed by the learned Arbitrator in Civil
Suit Nos.227 and 228 of 1998 and therefore, there was no
requirement for joining respondent in the proceedings for grant of
Succession Certificate. It was further submitted that the appellant
herein had held the shares for over 10 years uninterruptedly
before the respondent had raised claim by filing Civil Misc.
Application No.282 of 2018 and whereas the learned trial Court
rightly rejected the said application and while setting aside the
order, the learned First Appellate Court had committed a grave
error of law. It was further submitted that as per the settlement
arrived in Civil Suit Nos.227 and 228 of 1998, the shares in
question had been vested in the appellant and the respondent had
waived his right in the share in exchange for other properties.
Learned Senior Counsel has further submitted that there was no
objection raised by the respondent herein with regard to the
public notice published pursuant to the direction of the Civil
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Court and therefore, it was not open for the respondent to file
application under Section 383 of the Indian Succession Act.
Learned Senior Counsel has further emphasized on question
No.4(ii), (iv) and (v) as mentioned in the memo of the appeal, as
the substantial questions of law raised for consideration of this
Court for deciding present Appeal. Said questions are reproduced
hereinbelow:
(i) Whether the Ld. Trial Court erred by setting aside the
succession certificate at the behest of a non-applicant i.e.
Respondent herein who has not preferred any application
under Section 372 of Indian Succession Act, 1925?
(ii) Whether Ld. Court erred by not relying upon exhibit 36
which was produced by the Appellant in proceedings
under Section 383 of the Indian Succession Act, 1925?
(iii) Whether the Ld. Court erred in law by re-appreciating
facts and documents akin to a suit for deciding title?
(iv) Whether the Ld. Court erred in revoking the succession
certificate when the succession certificate was issued qua
the shares as mentioned in Schedule-A?
(v) Whether the Ld. Court erred in law and fact in holding
that the grant of succession certificate is required to be
revoked on the ground of not joining the necessary
parties, when the appellant alone had possession and title
under Exh-36 and in view of the proceedings being
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
summary in nature?
5. As against the same, learned Senior Counsel Shri K.S. Nanavati
for the respondent has submitted that this Court may not interfere
with the judgment and order passed by the learned Appellate
Court, more particularly, since no error either of law and on fact
has been committed by the learned Appellate Court. Learned
Senior Counsel draws the attention of this Court to Section 372 of
the Succession Act and submitted that according to said provision,
an application for Succession Certificate should contain
particulars as required by the statute and clause 1(c) of the said
Section clearly requires that application should contain particulars
of the family or other relatives of the deceased and their respective
residences, which requirement had been intentionally avoided by
the appellant while filing application for Succession Certificate.
Learned Senior Counsel further submits that the Act makes it
imperative that particulars as required should be mentioned and
he submits that the seriousness attached to such requirement is
made evident on perusal of sub-section 2 of Section 372 which
inter alia states that that if the petition for Succession Certificate
contains any averment which the person verifying it knows or
believes to be false or does not believe to be true, than such
person shall be deemed to have committed an offence under
Section 198 of the Indian Penal Code. He further submits that
Section 372 does not envisage any exception to the requirement of
joining family members or other relatives of the deceased and
joining only such person, who have some shares in the property in
question. It is further submitted by learned Senior Counsel that
purpose of the said Section is to put all persons concerned to
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notice of an application being preferred for getting Succession
Certificate of any deceased person so as to ensure that any person
who has a claim can join the proceedings. Learned Senior Counsel
also draws attention of this Court to the admission made by the
appellant in his cross-examination in Civil Misc. Application
No.282 of 2018 where the appellant inter alia stated that "it is true
that in the said pedigree affidavit, I have not shown names of
Dinesh or Sonal as legal heirs. Deponent submits on his own
accord that since pedigree affidavit was only for the purpose of
share certificate therefore, Dinesh or Sonal have not been referred
therein." Learned Senior Counsel also referred Section 383 of the
Succession Act and has submitted that since the pedigree affidavit
on which the Succession Certificate had been sought for was
admittedly showing incorrect facts and since the fact of the
deceased having other Class I legal heirs apart from the appellant
was concealed from the Court, therefore, as per Sub-Section (a)
and (b) of Section 383, the Succession Certificate had been rightly
revoked by the learned First Appellate Court. Learned Senior
Counsel has elaborately taken this Court through the documents
at Exhibit 65 and 66 i.e. the Arbitral Award passed in Civil Suit
Nos.226 and 227 of 1998 as well as agreement on stamp paper of
Rs.10/- between the appellant and his parents at Exhibit 36 before
the learned Trial Court but for the reasons recorded herein below,
this Court does not propose to either refer to the said Suits or the
findings therein. Learned Senior Counsel had in conclusion
submitted that no substantial questions of law have been raised by
the appellant and therefore, Second Appeal does not merit
admission by this Court and same may be dismissed.
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
6. Learned Senior Counsels for the parties have not submitted
anything further.
7. Heard learned Senior Counsels for the respective parties and
perused the record. Before analyzing the submissions made on
behalf of the parties and recording findings arrived at by this
Court, at this stage, it would be beneficial to refer to observation
of the Supreme Court in the case of Nazir Mohamed Vs. J.
Kamala and Ors. reported in AIR 2020 Supreme Court 4321,
whereby the Supreme Court has set out the principles for deciding
when the questions of law become substantial questions of law:
"29. The principles for deciding when a question of law
becomes a substantial question of law, have been enunciated by
a Constitution Bench of this Court in Sir Chunilal v. Mehta &
Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1, where this Court
held:-
"The proper test for determining whether a question of law
raised in the case is substantial would, in our opinion, be
whether it is of general public importance or whether it directly
and substantially affects the rights of the parties and if so
whether it is either an open question in the sense that it is not
finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the
highest court or the general principles to be applied in
determining the question are well settled and there is a mere
question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial
question of law."
30. In Hero Vinoth v. Seshammal, this Court referred to and
relied upon Chunilal v. Mehta and Sons (supra) and other
judgments and summarised the tests to find out whether a given
set of questions of law were mere questions of law or
substantial questions of law.
31. The relevant paragraphs of the judgment of this Court in
Hero Vinoth (supra) are set out hereinbelow:-
"21. The phrase "substantial question of law", as occurring in
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the amended Section 100 CPC is not defined in the Code. The
word substantial, as qualifying "question of law", means of
having substance, essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with- technical, of no substance or
consequence, or academic merely. However, it is clear that the
legislature has chosen not to qualify the scope of "substantial
question of law" by suffixing the words "of general
importance" as has been done in many other provisions such as
Section 109 of the Code or Article 133(1)(a) of the
Constitution. The substantial question of law on which a
second appeal 2(2006) 5 SCC 545 shall be heard need not
necessarily be a substantial question of law of general
importance. In Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235
: AIR 1928 PC 172] the phrase substantial question of law as it
was employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act , 1973) came up for
consideration and their Lordships held that it did not mean a
substantial question of general importance but a substantial
question of law which was involved in the case. In Sir Chunilal
case [1962 Supp (3) SCR 549 : AIR 1962 SC 1314] the
Constitution Bench expressed agreement with the following
view taken by a Full Bench of the Madras High Court in
Rimmalapudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969
: (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case [1962 Supp (3)
SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
"When a question of law is fairly arguable, where there is room
for difference of opinion on it or where the Court thought it
necessary to deal with that question at some length and discuss
alternative views, then the question would be a substantial
question of law. On the other hand if the question was
practically covered by the decision of the highest court or if the
general principles to be applied in determining the question are
well settled and the only question was of applying those
principles to the particular fact of the case it would not be a
substantial question of law."
32. To be "substantial", a question of law must be debatable,
not previously settled by the law of the land or any binding
precedent, and must have a material bearing on the decision of
the case and/or the rights of the parties before it, if answered
either way.
33. To be a question of law "involved in the case", there must
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be first, a foundation for it laid in the pleadings, and the
question should emerge from the sustainable findings of fact,
arrived at by Courts of facts, and it must be necessary to decide
that question of law for a just and proper decision of the case.
34. Where no such question of law, nor even a mixed question
of law and fact was urged before the Trial Court or the First
Appellate Court, as in this case, a second appeal cannot be
entertained, as held by this Court in Panchagopal Barua v.
Vinesh Chandra Goswami.
35. Whether a question of law is a substantial one and whether
such question is involved in the case or not, would depend on
the facts and circumstances of each case. The paramount
overall consideration is the need for striking a judicious balance
between the indispensable obligation to do justice at all stages
and the impelling necessity of avoiding prolongation in the life
of any lis. This proposition finds support from Santosh Hazari
v. Purushottam Tiwari.
36. In a Second Appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact
is not open to challenge in second appeal, even if the
appreciation of AIR 1997 SC 1047 4(2001) 3 SCC 179 evidence
is palpably erroneous and the finding of fact incorrect as held in
Ramchandra v. Ramalingam. An entirely new point, raised for
the first time, before the High Court, is not a question involved
in the case, unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this
case may be summarised thus :
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the terms
of a document is a question of law. Construction of a
document, involving the application of any principle of law, is
also a question of law. Therefore, when there is misconstruction
of a document or wrong application of a principle of law in
construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of the
case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is
not covered by any specific provisions of law or settled legal
principle emerging from binding precedents, and, involves a
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debatable legal issue.
(iii) A substantial question of law will also arise in a contrary
situation, where the legal position is clear, either on account of
express provisions of law or binding precedents, but the Court
below has decided the matter, either ignoring or acting contrary
to such legal principle. In the second type of cases, the
substantial question of law arises not because the law is still
debatable, but because the decision rendered 5 AIR 1963 SC
302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with
the concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on
no evidence; (ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. A decision based on no
evidence, does not refer only to cases where there is a total
dearth of evidence, but also refers to case, where the evidence,
taken as a whole, is not reasonably capable of supporting the
finding. "
8. At this stage, this Court feels it appropriate to refer the following
undisputable aspects, which emerge from the perusal of the
record.
(1) The parents of appellant and respondent Ramniklal
Contractor and Madhuben Contractor had died
intestate.
(2) The appellant had moved application for being granted
Succession Certificate with regard to the shares
mentioned in Schedule A of the application. The
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application was moved on the strength of submission
that the appellant was sole legal heir of his deceased
parents and in support thereof a pedigree affidavit stated
as much had been placed on record.
(3) The appellant had referred to an agreement between the
appellant and his deceased parents on Rs.10/- stamp
paper but Succession Certificate had not been sought
for on the basis of said agreement.
(4) The appellant had also not based his application for
grant of Succession Certificate on the basis of Arbitral
Award dated 30.09.1999 in Civil Suit Nos.227 and 228
of 1998.
(5) The appellant had not stated in the application for
Succession Certificate that his deceased parents had 2
other Class I legal heirs being respondent and daughter
of the deceased brother of the appellant and
respondent.
(6) The Court granting Succession Certificate was led to
believe that the appellant was the sole legal heir of his
parents and the said Court had given finding as such.
9. Having recorded the undisputable issues as above, this Court at
this stage proposes to reproduce Section 372 of the Indian
Succession Act, 1925 with regard to the application for certificate
and Section 383 with regard to the revocation of the Certificate,
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the issue raised in this Appeal being governed by the said Sections.
"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 (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 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, 1860 (45 of
1860).
(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.]
383. Revocation of certificate.--A certificate granted under this
Part may be revoked for any of the following causes, namely:--
(a) that the proceedings to obtain the certificate were defective
in substance;
(b) that the certificate was obtained fraudulently by the making
of a false suggestion, or by the concealment from the Court of
something material to the case;
(c) that the certificate was obtained by means of an untrue
allegation of a fact essential in point of law to justify the grant
thereof, though such allegation was made in ignorance or
inadvertently;
(d) that the certificate has become useless and inoperative
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through circumstances;
(e) that a decree or order made by a competent Court in a suit or
other proceeding with respect to effects comprising debts or
securities specified in the certificate renders it proper that the
certificate should be revoked."
10. Section 372 sets out the requirement for an application for
Succession Certificate. A petition for Succession Certificate is
required to be filed by the applicant or any other person on
behalf of the applicant in the manner prescribed in the Civil
Procedure Code, 1908 for filing and verification of the claim and
whereas the said claim requires particulars as mentioned therein
to be incorporated in the petition. For the purpose of present
dispute, sub-Section (c) would be relevant whether it is required
that the particulars of the family or other near relatives of the
deceased and respective residences shall be mentioned in the
petition. The framers of the statute to emphasize importance
attached to mention true and correct particulars in an application
for grant of Succession Certificate had caused to incorporate
sub-section 2 in Section 372 whereby a person shall be deemed
to have committed an offence under Section 198 of the Indian
Penal Code, if the petition contains any averment which the
person verifying knows and believes to be false and does not
believe to be true. The emphasis of Sub-section 2 of Section 372
being on the knowledge of the person verifying the application
i.e. the averments should be such that the person verifying
should not verify any averment which he knows as being false or
which he does not believe to be true. Meaning thereby that a
bonafide error or mistake would not invite any penal
proceedings but a deliberate misrepresentation would be treated
as having committed offence punishable under the IPC.
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11. Section 383 of the Indian Succession Act, 1955 lays down causes
for which the Succession Certificate, which is granted, may be
revoked. For the purpose of present issue, Sub-Section (a) and
(b) of Section 383 would be relevant, whereby it is set out that
when the proceedings initiated to obtain certificate where
defective in substance and where certificate was obtained by
fraud upon making false suggestions or concealing something
material from the Court. At this stage, it would also be beneficial
to refer to the decision of the Supreme Court in the case of
Joseph Easwaran Wapshare & Ors. and Shirley Katheleen
Wheeler reported in 2019(5) SCC 58 has observed thus.:
"Under Section 383, the Certificate so granted could only
be revoked for the reasons set out in the said Section. It
will be noticed that revocation cannot be granted unless
anyone of sub-sections (a) to (e) of Section 383 is satisfied,
........"
Thus, the issues before this Court can be said to be two folds
inasmuch as whether judgment and order under challenge in
Second Appeal passed by First Appellate Court was relying upon
the causes as mentioned in Sub-Section (a) to (e) of Section 383
as held by the Supreme Court in the case of Joseph Easwaran
Wapshare & Ors. (Supra) and whether the appellant herein has
raised any substantial questions of law which would require
interference by this Court in exercise of jurisdiction under
Section 100 of Code of Civil Procedure.
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
12. The appellant herein - original applicant while submitting his
application for Succession Certificate, had not mentioned the
details of family or other near relatives of the deceased and their
respective residences, which were a statutory requirement as per
Section 372 (1)(c). Learned First Appellate Court has noted that
the appellant himself has admitted in revocation proceedings
being Civil Misc. Application No.282 of 2018 in his cross-
examination that the deceased had two other Class I legal heirs
apart from the present appellant. That inspite of such position,
the appellant - original applicant having not joined other Class I
legal heirs in his application, the First Appellate Court had come
to a conclusion that the proceedings were defective in substance
and were obtained fraudulently after concealing true fact from
the Court. Learned Senior Counsel Shri Sudhir Nanavati on
behalf of the appellant had attempted to submit that since the
Succession Certificate was for share mentioned in the Schedule,
which share being in possession of the appellant for around 10
years and whereas the respondent not having questioned such a
position, the respondent should be treated as having waived his
right upon the share in question. In considered opinion of this
Court, such submission cannot be countenanced inasmuch as
the appellant had originally approached the Civil Court for grant
of Succession Certificate on the strength of his claim that he was
the sole legal heir of his deceased parents. That the appellant had
not submitted his application for Succession Certificate on the
strength of contention that the respondent herein be treated as
having waived his right upon shares in question. Moreover, in
considered opinion of this Court, such a question may not be
strictly within purview of a Court to decide in an application
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
under Section 372 of the Indian Succession Act. If the claim of
the appellant upon share certificate was on the ground of waiver
by the respondent herein than the appellant ought to have
approached a competent Civil Court by filing a Civil Suit under
the provisions of Code of Civil Procedure, 1908. The Succession
Act does not contain out any exception to Section 372(1)(c),
whereby family or near relative of the deceased are not required
to be joined on any ground including the ground of waiver by
such relative of their right. Thus, it was incumbent upon the
appellant to have joined other Class I legal heirs of the deceased.
Having not done so, the proceedings were defective in substance
as required under Section 383 (a) of the Succession Act.
On the other hand, in so far as some ground of non-joinder to
substantiate his claim of being the sole legal heir of the deceased,
the appellant had submitted pedigree affidavit, which was
attested by a Notary, where the appellant had mentioned that he
was the sole legal heir of the deceased. As stated hereinabove,
since it is a an admitted position that there were two other Class
I legal heirs of the deceased other than the appellant, the learned
First Appellate Court has come to a conclusion that the
certificate was fraudulently obtained and the material facts had
been concealed from the Court as required for revoking sub-
section (b) of Section 383 of the Indian Succession Act. This
Court does not find any perversity or illegality committed by the
learned First Appellate Court in coming to the above conclusion,
more particularly, in view of the fact that a conjoint reading of
Sections 372(2) and 383 of the Indian Succession Act leads to an
inevitable conclusion that onus is on the person making the
application for Succession Certificate to make true and correct
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
averments and whereas if knowingly false averments are made,
the statute provides for penal punishment. That the appellant
had knowingly provides false information by stating that the
deceased had no other legal heir except present appellant
whereas later on the appellant himself had admitted that there
were two other legal heirs. Thus, there is no doubt in mind of
Court that certificate had been obtained fraudulently by
concealing material fact from the Court, which is a relevant
consideration as per Sub-Section 383(b) of the Indian
Succession Act, 1925.
In view thereof, this Court holds that the judgment and decree
passed by the learned First Appellate Court having come to the
conclusion that the proceedings for obtaining Succession
Certificate was defective and the Certificate was obtained
fraudulently and the said findings being causes as mentioned in
Section 383(a) and Section 383(b) for revoking the Succession
Certificate granted under the Act, the said findings fulfilled the
mandate of the judgment of Supreme Court in the case of
Joseph Easwaran Wapshare (Supra) and thus no interference is
called for with the said judgment and order.
13. In so far whether the questions raised by the appellant are
substantial questions, which require interference by this Court,
this Court proposes to discuss the said issue keeping in view of
the principles of law laid down by the Supreme Court in the case
of Nazir Mohamed (Supra).
First question being with regard to the learned First Appellate
Court having erred in invoking Section 383(a) and (b) for
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
revocation of certificate granted only under Schedule 1 when the
appellant was even otherwise in possession and acquired title
under the settlement deed dated 01.10.1999. In this regard, it is
required to be appreciated that the application for Succession
Certificate by the appellant for the shares in question was not on
the strength of his submission that he was having title of the
shares in question and he was in possession of the shares in
question. His entire case was based upon the submission that he
is sole legal heir of his deceased parents and therefore, he is
entitled for Succession Certificate. Having not approached the
Trial Court for grant of Succession Certificate on the ground
that he had acquired title of shares under the settlement deed
dated 01.10.1999, the appellant would be precluded from raising
a question in Second Appeal as above. Moreover, as noted
above, the learned First Appellate Court has rightly invoked the
provisions of Section 383(a) and (b) for revoking the Succession
Certificate since the proceedings to obtain the Certificate were
indeed defective and if the Certificate had been obtained
fraudulently as elaborately discussed hereinabove.
In so far as question as to whether the learned First Appellate
Court erred in re-appreciating the fact and evidence under
Section 382 when the proceedings are summary in nature, this
Court finds that the learned First Appellate Court has not re-
appreciated any evidence rather the learned First Appellate
Court has only recited the nature of material which had been
placed before it with a view to find whether the Succession
Certificate was substantially or the Succession Certificate ought
to be revoked under the causes mentioned in Section 383.
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
In so far as third question with regard to a document being
validly exhibited or not, in the considered opinion of this Court,
the document at Exhibit 36 was as such not an issue which
would be gone to the root of the matter, more particularly, since
the findings fulfill the causes as found in Section 383 (a) and (b)
and the said findings being borne out from the records as well as
from an admission by the appellant himself, therefore, in the
opinion of this Court, the question itself is misconceived.
13. In view of the above discussion and findings, this Court is of the
considered opinion that the questions raised by the appellant are
not substantial questions of law which requires interference of
this Court in the present Appeal and thus, this Court finds no
reason for interfering that the judgment and decree dated
21.10.2019 passed by the learned First Appellate Court being
learned 5th Additional District Judge, Kheda at Nadiad in
Regular Civil Appeal No.71 of 2019. Present Second Appeal
therefore, fails and is hereby dismissed. No order as to costs.
In view of the disposal of the Second Appeal, Civil Application
No.1 of 2020 is hereby disposed of.
FURTHER ORDER:
Learned Advocate Mr. Vandan Baxi for Nanavati and Nanavati for
the appellant requests this Court to stay the order of this Court for some
period of time to avail appropriate remedy.
This request is strongly opposed by learned Advocate for the
C/SA/32/2021 JUDGMENT DATED: 24/06/2021
respondent No.1.
Considering the fact that the order passed by the First Appellate
Court setting aside the order of the learned Principal Senior Civil Judge,
Kheda at Nadiad granting Succession Certificate in favour of the appellant
was never stayed even by that Court itself of by this Court and for the
reason that the Second Appeal has been dismissed by this Court, such
request is rejected.
(NIKHIL S. KARIEL,J)
Y.N. VYAS
