S. Acharya, J.
1. Plaintiff No. 1 has preferred this appeal against the decision of the Additional District Judge, Cuttack In Title Appeal No. 44/72 reversing the decision of the First Munsif, Cuttack in Title Suit No. 104/56.
2. Plaintiff No. 2 has been impleaded as pro forma respondent No. 3 in this appeal.
3. The admitted genealogical tree is given below:--
| | Narasingha alias
Nilamani Indramani Garudadhwaja
(dead) (Plff.1) (adopted son)
4. The plaintiffs have filed this suit for a declaration that they, being related to Narasingha alias Garudadhwaja Bedbagis in the manner as shown in the abovementioned genealogical table, are the only legal heirs and successors of the said Narasingha who died in the year 1962. The plaintiffs state that defendant No. 1, Hema Dei (respondent No. 1 herein), is a stranger to the family and was not the legally married wife of Narasingha, and so the succession certificate granted in her favour on the basis of her false claim as the widow of late Narasingha should not have been granted. Inparagraph 4 of the plaint it is stated that the Life Insurance amount of Rs. 1,000/-which has fallen due for payment on the death of Narasingha has to be paid to the legal heirs of the deceased.
5. The Divisional Manager of the Insurance Company, who is holding the said amount which has fallen due on the death of Narasingha, has been impleaded as defendant No. 2 in the suit. Defendant No. 2 has not contested the suit and has been set ex parte.
Defendant No. 1, who alone has contested the suit, states that she is the legally married wife of late Narasingha and accordingly she and her daughter Pratima, who was born after the death of Narasingha, are the only two heirs and successors of late Narasingha. She further states that she has justly been granted the succession certificate and the prayer of the plaintiffs to the same effect has rightly been rejected. She further states that this suit for a mere declaration is not maintainable as it offends the provisions of Section 34 of the Specific Relief Act.
6. The trial court found that defendant No. 1 was not the wife of Narasingha; and that the plaintiffs were the legal heirs of Narasingha. It also held that even though the plaintiffs had not asked for any consequential relief, this suit for mere declaration was maintainable, and that in view of Section 387 of the Indian Succession Act, the present suit was not hit by the principles of res judicata.
7. Defendant No. 1 preferred an appeal against the aforesaid decision of the trial court. In the appellate court the findings of the trial court that defendant No. 1 is not the legally married wife of Narasingha and that the plaintiffs are his legal heirs were not agitated or challenged. On the questions agitated the appellate court has found that the plaintiffs' suit is maintainable in view of the provisions of Section 387 of the Indian Succession Act, but as this suit is for mere declaration without a prayer for proper consequential relief it is not maintainable. Only on the last mentioned ground the court below has dismissed the plaintiffs' suit. Hence this second appeal by plaintiff No. 1.
8. Mr. Das, the learned counsel for respondent No. 1, while supporting the ultimate conclusion of the court below, submits that the plaintiffs could not have instituted this suit without filingappeals under Section 384 of the Indian Succession Act (hereinafter referred to as the 'Act') against the orders granting the succession certificate in favour of defendant No. 1, and refusing the prayer to that effect made 'by the plaintiffs. Mr. Das submits that the plaintiffs were parties to the proceeding in which the succession certificate was granted in favour of defendant No. 1, and as they did not prefer any appeal under Section 384 of the Act, that order has become final and no suit to set aside the said order can be instituted by the plaintiffs to assail that order.
I do not see any substance in the above submission. The decision of a court in the matter of succession certificate cannot operate as res judicata for ,a regular suit to the same effect in view of the express provisions of Section 387 of the Act, Merely because an unsuccessful party in a matter relating to succession certificate did not prefer any appeal under Section 384 of the Act, it cannot be said that Section 387 of the said Act on that account becomes inoperative. There is nothing in Section 387 to warrant such a conclusion. Section 387 is in wide terms and it, inter alia, provides that no decision under Part X of the said Act upon any question of right between any parties shall be held to bar the trial of the same question in any suit. A decision on a matter of succession certificate is given under Part X of the Act. So Section 387 enables an unsuccessful party to a proceeding for succession certificate to file a regular suit in a competent Civil Court on the same question, and so the decision of that court on that matter may ultimately affect the succession certificate already granted in favour of some other person. The order issuing the succession certificate is final so far as it relates to a proceeding under the said Act and regarding matters under that Act, but because of the provisions of Section 387 of that Act, the said order can be questioned by a suit in a competent Civil Court In Mt. Jiwandi Bai's case reported in AIR 1934 Pesh 83 it has been held that the decision of a court under the Succession Act is a summary one and it does not stand in the way of the trial of the same question in any regular suit.
9. Mr. Swain, the learned counsel for the appellant, contends that the court below acted illegally in dismissing the plaintiffs' suit merely because they have not asked for any consequential relief inthis suit. According to Mr. Swain in the facts and circumstances of this case it was not at all necessary for the plaintiffs to ask for any consequential relief as the declaration asked for will serve their purpose, and other reliefs will follow merely on the said declaration. Mr, Das, on the other hand, contends that as a succession certificate has already been granted in favour of defendant No. 1, the plaintiffs in this suit must have asked, by way of consequential relief, for the revocation of the said certificate, as otherwise they will not be entitled to receive the above-mentioned Insurance money which has fallen due for payment on the death of Narasingha. The plaintiffs in this suit have asked for a declaration that they are the only legal heirs and successors of deceased Narasingha. Once that declaration is granted that alone will entitle them to the said amount in the hands of defendant No. 2, as that decision will prevail over the summary decision given under the Act, So an order for the revocation of the succession certificate in that suit is not at all necessary for that purpose, and the plaintiffs will get that amount by showing the declaratory decree to the above effect to the court which granted the said succession certificate and to the Insurance Company. So the existence of the succession certificate is not such a factor so as to make its cancellation a necessary consequential relief to seek in this suit. My above view gets support from the decisions reported in AIR 1934 Pesh 83; AIR 1966 Pun] 526 (Abhay Chand Ram v. Ram Chand Wazir Chand) and AIR 1955 All 683 (Indra Narain Das v. Ganga Ram Das). So the plaintiffs' suit was wrongly dismissed Hence the order of the court below to that effect is set aside.
10. Mr. Das at last urged that the trial court, having arrived at the finding that the plaintiffs failed to establish their case that defendant No. 1 was the married wife of Gangadhar Panda, was not at all justified in proceeding to give a finding that defendant No. 1 was not the wife of Narasingha and the plaintiffs were the legal heirs and successors of the said Narasingha. As stated earlier, the finding of the trial court that defendant No. 1 was not the wife of Narasingha was not at all challenged in the appellate court. In the plaint the plaintiffs assert that defendant No. 1 was not the wife of Narasingha. They however also state that she was the wife of one GangadharPanda. Defendant No. 1 in her written statement states that she was the wife of Narasingha, and she did not marry Gangadhar Panda. No doubt, the plaintiffs have not been able to establish the last-mentioned fact, but on the oral and documentary evidence adduced by both the parties it is established that defendant No. 1 is not the wife of Narasingha. The trial court proceeded to assess the correctness of both the above facts alleged by the parties. On the pleadings of both the parties the Court was required to give a finding as to whether defendant No. 1 was the legally married wife of Narasingha or the plaintiffs were the heirs and successors of Narasingha. The trial court, on a discussion and consideration of the oral and documentary evidence adduced by both the parties, arrived at the finding that defendant No. 1 was not the wife of Narasingha and that the plaintiffs are the legal heirs of the said Narasingha. I do not therefore see any justification for the comments made by Mr. Das against the said findings. Moreover, the said findings were not challenged or assailed on any ground in the appellate court, and those findings have become 'final and cannot be allowed to be assailed in this second appeal. The said findings, therefore, are confirmed.
11. On the finding that the plaintiffs are the legal heirs of late Narasingha alias Garudadhwaja, and on the finding that the plaintiffs' suit for the declaration prayed for is maintainable without any prayer for consequential relief, the suit has to be and is hereby allowed. The appeal, therefore, is allowed, but in the circumstances there will be no order as to costs of this Court.