Orissa High Court
Dukhi Bhoe @ Sane And Others vs State Of Odisha And Others on 4 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No.15 Of 2022
(Through video conferencing mode)
Dukhi Bhoe @ Sane and others ... Appellants
Mr. S.P. Mishra, Advocate
-versus-
State of Odisha and others ... Respondents
Mr. A.K.Sharma, AGA
CORAM: JUSTICE ARINDAM SINHA
ORDER
04.02.2022
Order No.
01. 1. Mr. Mishra, learned advocate appears on behalf of appellants
and submits, this is a second appeal by operation of provisions under
Indian Succession Act, 1925. Respondent nos.2 to 10 had obtained
succession certificate in respect of property inherited by his clients, by
causing exparte adjudication under the Act. His clients were not at all
cited. The first Court was misled to proceed exparte. His clients instead
of applying for setting aside the exparte order, chose to appeal. Two
questions were framed in the appeal by the first appellate Court. The
questions are reproduced below:-
"i) Whether the right of appellants have been
infringed by the order of learned lower Court?
ii) Whether the certificate issued by the
learned lower Court is illegal?
// 2 //
2. He submits, the questions were summarily answered in paragraphs 11
and 12 of judgment dated 6th November, 2021. Substantial question of law
arises for admission of the second appeal. On query from Court Mr. Mishra
submits, respondent nos.2 to 10 had claimed before the District Judge to be
successor through second wife of Chili Naik's husband. He submits, Chili
Naik's husband did not have second wife. His clients are the successors of
Chili Naik through her husband's brother.
3. It appears from judgment dated 6th November, 2021 that appellants
had contended they were successors of Chili Naik, through her husband's
brother. They had relied on entries in the ROR made in respect of the lands.
This was summarily dealt with in paragraph 11 of the judgment. Said
paragraph is reproduced below:-
"11. Both the points are taken together for
discussion for shake of convenience. The
appellants filed this appeal on the ground that their
rights have been infringed as they are the only
successors of the Sada and further they have got
right, title and interest over the property on which
succession certificate has been issued. Admittedly,
the procedure laid down under section 373 of the
Act lays to decide and issue succession certificate
in a summary way. Admittedly, while dealing with
the case, the Court is not required to decide the
right, title and interest of the party over the suit
land. But the Court has to issue the succession
certificate to the parties having prima facie basis
entitled to receive it. So, a person having best title
over the property can succeed the property of a
deceased. in this regard, reliance can be placed in
// 3 //
the case of Rabi and Narayan Sarangi Vrs. Smt.
Tarulata Sarangi reported decision of Hon'ble
High Court of Orissa passed on 25th March,
2015."
4. Following substantial question of law arises for admission of the
appeal.
"Section 373 in Indian Succession Act, 1925 provides for the
District Judge to obtain satisfaction on best title over the
property, for issuance of succession certificate. In an appeal
there against provided under section 384, is or is not the
appellate Court required to also itself decide, who is the
person having best title over the property regarding
succession certificate issued under section 373 ?"
5. Operation of the succession certificate issued will remain
stayed till 28th February, 2022. Issue notice on the I.A. Appellants
will put in requisites for the same and also for issuance of notice
of appeal.
6. Call for lower Court records (LCRs).
7. Liberty given to appellants to mention the appeal for hearing on
intimation of arrival of LCRs and service of notice of appeal.
(Arindam Sinha)
Judge
Prasant
