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Mathura Prasad Vs. Shriman 108 Rawal Sahib of Shri Kedar Nath - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1943All303
AppellantMathura Prasad
RespondentShriman 108 Rawal Sahib of Shri Kedar Nath
Excerpt:
- - section 371, succession act, clearly refers to 'the property of the deceased regarding which a certificate may be granted......and that sada nand had made an admission to that effect in the criminal case against him. the learned civil judge allowed the application but his order was reversed by the learned district judge on the ground that the order passed by the criminal court under section 517, criminal p. c, which had been treated as a final order by the learned civil judge for the purposes of his decision was not binding upon the civil court. the matter then came up for further inquiry before another civil judge who has again allowed the opposite party's application and that order has been confirmed by the learned district judge in appeal. it is again important to note that the learned civil judge has definitely treated the amount of rs. 750 which is in question as the property of the temple which is.....
Judgment:
ORDER

Mulla, J.

1. This is an application in revision under Section 115, Civil P. C. The application arises out of a miscellaneous proceeding under the Succession Act (39 of 1925). The applicant, Mathura Prasad, is the minor son of one Sada Nand who at one time was the manager of a temple known as Shri Kedar Nath in the district of Garhwal. In that capacity Sada Nand withdrew a sum of Rs. 2000 belonging to the temple fund on 24th July 1935. On 27th July 1935, he deposited a sum of Rs. 750 in the name of himself as manager, Shri Kedar Nath temple, in the Post Office Savings Bank, Guptkashi. A case under Section 408, Penal Code, was instituted against him in respect of that sum of Rs. 2000 and he was eventually convicted and that conviction was finally maintained by this Court. In his defence in the criminal case, Sada Nand stated that the sum of Rs. 750 which he had deposited in the Guptkashi Post Office Savings Bank really belonged to the Shri Kedar Nath temple and that he had deposited it for the purposes of the temple. He further stated that he intended to deposit the remaining amount of Rs. 1250 also for the purposes of the temple. This defence was, however, not accepted in the criminal case and, as stated above, he was found guilty of embezzlement in respect of the sum of Rs. 2000. The learned Magistrate who convicted Sada Nand also ordered that the sum of Rs. 750 deposited in the Guptkashi Post Office Savings Bank should be seized and made over to the temple. That order was passed presumably under Section 517, Criminal P. C. When this Court affirmed the conviction of Sada Nand, it did not interfere with the order passed by the learned Magistrate under Section 517, Criminal P. C. That order was appealable under Section 520, Criminal P. C, but there is nothing on the record to show that any such appeal was filed and it may therefore be taken for granted that the order became final. Shriman 108 Rawal Sahib, who is the opposite party in the present proceeding, is the trustee of the Shri Kedar Nath temple.

2. It appears that he made an application to the criminal Court for realising the amount of Rs. 750 which had been deposited by Sada Nand in the Guptkashi Post Office Savings Bank. He succeeded in securing an order from the criminal Court in his favour, but when he proceeded to the Guptkashi Savings Bank in order to realise that amount the bank raised an objection that it could not deliver the amount to him until he obtained a succession certificate. Thereupon, the opposite party made an application in the Court of the Civil Judge at Chameli for a succession certificate in respect of that amount of Rs. 750 in the possession of the Guptkashi Post Office Savings Bank. That application was not in the form prescribed by Section 372, Succession Act. That is not however a material point. What is really important to note about the application is that it specifically states that the amount of Rs. 750 deposited in the Guptkashi Post Office Savings Bank belonged to the temple represented by the applicant and that Sada Nand had made an admission to that effect in the criminal case against him. The learned Civil Judge allowed the application but his order was reversed by the learned District Judge on the ground that the order passed by the criminal Court under Section 517, Criminal P. C, which had been treated as a final order by the learned Civil Judge for the purposes of his decision was not binding upon the civil Court. The matter then came up for further inquiry before another Civil Judge who has again allowed the opposite party's application and that order has been confirmed by the learned District Judge in appeal. It is again important to note that the learned Civil Judge has definitely treated the amount of Rs. 750 which is in question as the property of the temple which is represented by the applicant. The relevant portion of the learned Civil Judge's order runs as follows:

I do not think that objectors have rebutted the presumption that the money in saving bank deposit was the temple money given to Sada Nand for deposit in savings bank.

3. On this basis the learned Civil Judge has granted the opposite party's application for a succession certificate and that order, as stated, has been confirmed by the learned District Judge; hence the present application in revision. The simple contention on behalf of the applicant is that the whole proceeding was entirely beyond the scope of the Succession Act and that the application for a succession certificate was not competent in the circumstances at all. The point is so obviously sound that it is rather surprising that it was never noticed by the Courts below. An application for a succession certificate as contemplated by the Succession Act must be an application in respect of some property belonging to a deceased person. No person, who claims that a certain property belongs to him, can apply for a succession certificate in respect of that property. Section 371, Succession Act, clearly refers to 'the property of the deceased regarding which a certificate may be granted.' Sub-section (3) of Section 372 runs as follows:

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.

4. In my judgment the Succession Act does not contemplate the case of a person applying for a certificate, even though he claims that the property in respect of which he applies belonged not to the deceased person but to himself. Indeed, in this case we have the instance of a person succeeding to himself which obviously cannot be contemplated by the law. Learned Counsel for the opposite party contended that the succession certificate was concerned only with the right of collection and not with any question of title to the property. The simple answer to that argument is that it may be concerned only with the right to collect but that right must relate to the property of a deceased person and not to the property of the applicant himself. I am, therefore, of the opinion that in this case the opposite party misconceived his remedy. The proper course for him, when the post office refused to deliver the amount to him, was to bring a civil suit in order to enforce his right to the amount in question. A moment's consideration will show that if Sada Nand had not deposited the amount in question in the post office savings bank but had retained it with himself the opposite party would still have had the right to recover that amount from him after his conviction in the criminal case by means of a civil suit. The mere fact that a part of the money which Sada Nand embezzled was deposited by him in the post office savings bank cannot give the opposite party the summary remedy of an application for succession certificate. The result, therefore, is that I find that the whole proceeding in this case was without jurisdiction and the orders passed by the Courts below must be set aside. The application is allowed and the orders passed by the Courts below are set aside. The applicant shall have his costs only in this Court. I do not grant him any costs of the Courts below because the point raised here was not urged there.


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