Jharkhand High Court
Navaz Jha vs Dr. Farhad A. Balsara on 9 December, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 72 of 2021
Navaz Jha ... ... Appellant
-versus-
1. Dr. Farhad A. Balsara S/o Dr. Aspi B. Balsara, resident of Flat No.4,
Building No.8, Road No.5 (North) C.H. Area, P.O. & P.S. Bistupur, Town
Jamshedpur, District East Singhbhum.
2. The General Public, C.H. Area, P.O. and P.S. Bistupur, Town
Jamshedpur, District East Singhbhum.
3. Dr. Aspi B. Blasara S/o Late Behramjee Balsara, resident of Flat No.4,
Building No.8, Road No.5 (North) C.H. Area, P.O. & P.S. Bistupur, Town
Jamshedpur, District East Singhbhum (Jharkhand).
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellants : Mr. Amit Kumar, Advocate
For the Respondents : Mr. H.K. Chaturvedi, Senior Advocate
Mr. Vikas Kumar, Advocate
----
ORDER
RESERVED ON 24.11.2021 PRONOUNCED ON 9.12.2021
7/9.12.2021 This miscellaneous appeal filed under Section 384 of the
Indian Succession Act is directed against the order dated 25th March
2021 passed in Succession Certificate Case No.9 of 2018 by which the
Principal District Judge, East Singhbhum, Jamshedpur has granted
succession certificate in favour of the applicant-respondent No.1.
2. Challenging the grant of such succession certificate in
favour of respondent No.1, appellant herein has preferred this appeal.
3. I have heard the counsel for the appellant and the counsel
for the respondents and have gone through the Lower Court Records.
4. Counsel for the appellant submits that the impugned order
is absolutely bad and is against the provisions of Indian Succession Act.
He submits that the respondent No.1 is none but the brother of this
appellant, who had filed the succession certificate case. He submits that
the appellant was arrayed as opposite party No.3 in the main
application, showing her residential address at Jamshedpur, Singhbhum
East, but, this appellant is resident of United States of America. Knowing
fully well about the actual place of residence of this appellant, with
ulterior motive, the applicant, i.e., the respondent herein, has shown her
address to be at Jamshedpur. It is submitted that as naturally notices
could not be served at Jamshedpur, as the appellant was residing in
United States of America, the application was fixed for exparte hearing
against her and an exparte order has been obtained, keeping the Court
in dark. He submits that the exparte order is absolutely bad as the
notices were not validly served. He also submits that even if the
aforesaid ground of exparte is ignored for the present, then also, on the
merits of the case, the impugned judgment needs to be set aside. He
submits that the applicant has himself admitted that this appellant is his
sister and she also has her share in the property for which the
succession certificate is sought for, that being so, succession certificate
for the entire property could not have been granted in favour of the
applicant/respondent No.1 herein. On the aforesaid two grounds, the
impugned judgment has been challenged in this appeal.
5. Learned senior counsel appearing on behalf of the
respondent No.1/applicant submits that this appeal filed under Section
384 of the Indian Succession Act is not maintainable. He submits that
appropriate remedy for the appellant is to file an application under Order
IX Rule 13 of the Code of Civil Procedure. He submits that since the
order passed is an exparte final order against the appellant, she should
file an appropriate application for setting aside the exparte decree/order,
wherein the Court should examine the issue, based on evidence,
whether the service of notice is proper or not. He submits that this Court
at the appellate stage, cannot conclude whether the notices were validly
served upon the opposite party-appellant or not as this Court cannot
take evidence. He submits that now it is well settled that provisions of
Order IX Rule 13 of the Code of Civil Procedure is also applicable in
respect of a proceeding under the Indian Succession Act, thus, this
appeal under Section 384 of the Indian Succession Act is not
maintainable. On the merits, he submits that the interest of the appellant
has been protected by the Principle District Judge as it would be
apparent from the last portion of the impugned order wherein, the
applicant-respondent herein, were directed to furnish indemnity bond
giving an undertaking to indemnify the State Bank of India in respect of
any claim by any person. According to him, this is sufficient to suggest
that if the appellant has got any claim, she may make the claim and she
will be paid by the Bank as the respondent herein has also indemnified
the bank in respect of such claim. On this ground, he submits that this
appeal is liable to be dismissed.
6. After hearing the parties and going through the record, I find
that the respondent No.1 herein has filed an application for grant of
succession certificate under the Indian Succession Act in his favour
impleading his father as opposite party No.2 and this appellant as
opposite party No.3 and general public of the locality as opposite party
No.1. The general and special citation was done. As none appeared on
behalf of the opposite parties, the Court proceeded exparte. Later,
opposite party No.2, who happens to be the father of the contesting
parties, appeared and filed his 'no objection' for issuing succession
certificate in favour of the claimant, i.e., respondent No.1 herein. It is the
case of the applicant-respondent No.1 that Dr. Mrs. Roshan Aspi
Balsara, who happens to be the mother of the applicant and the
appellant herein, has left behind huge amount of Rs.78,57,565/-
(Rupees Seventy Eight Lakh Fifty Seven Thousand Five Hundred Sixty
Five) in her P.P.F. Account No.11009134853. Further, there was a
saving bank account in which Rs.49,082/- (Rupees Forty Nine
Thousand Eighty Two) is lying. There is a fixed deposit to the tune of
Rs.62,50,000/- which is also lying with the bank. To claim the aforesaid
amount, a prayer to grant succession certificate in favour of the
applicant/respondent No.1 herein was filed by him wherein he stated
that there is no legal impediment in granting such succession certificate
to him. As this appellant did not appear before the Court, the
Succession Certificate Case proceeded exparte against her. The
applicant produced only one witness, i.e., himself. In his examination-in-
chief, he has supported his case and stated that her mother died at
Kolkata. He also proved the Death Certificate. He also proved the Bank
Pass Book, documents in respect of P.P.F. Account and the Saving
Bank Account. He stated that he is the only son and legal heir of the
deceased and that apart, her mother has left behind her husband, i.e.,
father of the contesting parties and a daughter, i.e., the sister of the
applicant (who is the appellant herein). On a Court question, the witness
stated that he is aware of the fact that in the property of his mother, his
sister is also entitled to equal share. The aforesaid fact is also reflected
in the impugned order itself. The Principle District Judge, thereafter,
considering the evidence led, granted succession certificate in favour of
the applicant only and directed the applicant to furnish an indemnity
bond, giving undertaking to indemnify the State Bank of India against
any claim made in future with the bank by any person including this
appellant (opposite party No.2 before the Trial Court).
7. From the aforesaid facts, it is clear that the order granting
succession certificate in favour of the applicant/respondent No.1 was
passed exparte against this appellant. It is the case of the appellant that
she is resident of United States of America and knowing fully well that
fact, notices were not issued in her address, which is at United States of
America. He submits that knowing fully well that the appellant is residing
at United States of America, in a clandestine manner, the applicant has
shown that this appellant is residing at Jamshedpur, which is not correct.
8. It is now settled principle of law that order IX Rule 13 of the
Code of Civil Procedure is applicable in relation to a proceeding under
the Indian Succession Act also. Order IX Rule 13 of the Code of Civil
Procedure provides for setting aside an exparte decree. It provides that
in a case where a decree is passed exparte, defendant may apply to the
Court for an order to set aside the same. In that case, defendant has to
satisfy the Court that summons were not duly served upon him/her or
he/she was prevented by sufficient cause from appearing in the suit
when the suit was being heard. Thus, defendant has a remedy in law to
challenge the exparte decree and to raise the issue before the Court
that she was sufficiently prevented from appearing on the date of
hearing or that summons were not duly served. In that case, exparte
decree can be set aside.
9. In the instant case, I find that the order was challenged by
the appellant not only on the ground that it was exparte, but also on the
merits of the case. It is the submission of the counsel that even on
merits, this decree, even though, it is exparte, the same is illegal and
against the provisions of Section 372 of the Indian Succession Act.
10. In a civil proceeding, it is the plaintiff who has to stand on
his own legs, he cannot derive any benefit from the laches of the
defendant. In a given case, even if the opposite parties/defendants do
not appear before the Trial Court, the plaintiff has to prove and establish
his own case, which he has pleaded in the plaint, by adducing evidence.
It is not the law that the statement made by the plaintiff or the claimant
will be accepted as gospel truth in absence of the opposite parties. The
duty to establish a truth remains with the plaintiff even if the defendant
did not appear or even after appearance they did not file their written
statement. The Court also has a duty to scrutinize the evidence and
apply the correct law before decreeing the suit exparte. According to
me, the duty of the Court increases by few folds when the plaintiff prays
to pass a decree exparte. When a decree or an order is challenged on
merits, the remedy available to the said appellant is by way of filing an
appeal. In the instant case, order is passed under the Indian Succession
Act and since merit has also been challenged, it is the appellant, who
has the option to chose the forum. He either can file application under
Order IX Rule 13 of the Code of Civil Procedure for setting aside the
exparte decree or he can file an appeal under Section 384 of the Indian
Succession Act challenging the order granting Succession Certificate on
merits itself. In this case, since the order has been challenged also on
merits itself, I find that this appeal is maintainable. Thus, I am
proceeding to decide as to whether on the law and on the material on
record, the respondent/applicant has made out a case for grant of
succession certificate solely in his favour.
11. It is the admitted case that the money left in the bank
accounts belonged to the mother of the contesting parties. In the oral
evidence, the applicant has clearly admitted that he has a sister and his
sister also has a right over the property left behind by their mother. It is
an admitted case that the applicant had filed the succession certificate
case under Section 372 of the Indian Succession Act and he claimed
the succession certificate for himself only and that too for the entire
property.
12. Section 372 of the Indian Succession Act deals with an
application for succession certificate. Section 373 of the Indian
Succession Act lays down the procedure when an application under
Section 372 of the Indian Succession Act is filed. Section 373(2) of the
Indian Succession Act provides that when the Judge decides the right
thereof belong to the applicant, the Judge shall make an order for grant
of certificate to him. Thus, from the aforesaid provision of law, it is quite
clear that a Judge has to decide the right of the applicant. This means
that not only the Judge has to decide the right, but the extent of the said
right should also be decided by the Judge. The Judge has to decide
whether the claimant is entitled for grant of succession certificate in
respect of the entire money claimed or not. Section 373(3) of the Indian
Succession Act also provides that if a Judge cannot decide the right of
the claimant without determining the question of law, or fact, which
seems to be too intricate and difficult for determination in a summary
proceeding, then also he has to grant a certificate to the person having
prima facie the best title thereon. Thus, it was the duty of the Court to
decide that who is having best title over the property for which
succession certificate is sought for.
13. In this case, I find that the applicant-respondent has himself
admitted that his sister has also share in the property left by her mother.
That being so, succession certificate for the entire property, i.e., the
money lying in bank accounts could not have been issued in favour of
the applicant alone. From the order I find that the Court has failed to
decide the succession right of the applicant to the effect as to whether
the applicant had right to be granted the succession certificate for the
entire property or not. The part of the order wherein the applicant was
directed to furnish indemnity bond in favour of the bank also gives an
impression that the Court was also of the opinion that the applicant was
not entitled for grant of succession certificate for the entire amount. The
extent of interest of the applicant in the claimed property has to be seen
by the Judge, which is also apparent from the provisions laid down in
Section 372(4) of the Indian Succession Act, though the aforesaid
Section deals with a situation where there are more than one applicant.
In this case, I find that practically there are more than one claimant for
the property for which succession certificate has been sought for.
14. Considering the aforesaid fact and the materials, which
surfaced from record, I find that while passing the impugned order, the
Principal District Judge has committed illegality in issuing succession
certificate in favour of the applicant alone for the entire amount left by
the mother of the contesting parties. Thus, this appeal is allowed. The
order dated 25th March 2021 passed in Succession Certificate Case
No.9 of 2018 is hereby set aside. The matter is remanded to the
Principal District Judge, East Singhbhum, Jamshedpur to hear the
Succession Certificate Case No.9 of 2018 afresh and pass appropriate
order in accordance with law. The appellant herein will also cooperate
and appear before the Court below through lawyer.
15. Be it noted that 1/3rd amount, which is lying in PPF Account
No. 11009134853 with the State Bank of India, Bistupur Main Branch,
Jamshedpur, was directed to be released in favour of the applicant-
respondent No.1, vide order dated 05.10.2021. The said amount will
remain with the applicant-respondent No.1 and will be subject to the
final order passed by the Principal District Judge, East Singhbhum at
Jamshedpur in Succession Certificate Case No.9 of 2018.
Let the Lower Court Records be sent to the Court below
along with a copy of this order.
(Ananda Sen, J.)
Kumar/Cp-02
