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Mst. Bhanwar Bai and ors. Vs. Balmukund and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 30 of 1954
Judge
Reported inAIR1960Raj9
ActsSuccession Act, 1925 - Sections 384 and 388
AppellantMst. Bhanwar Bai and ors.
RespondentBalmukund and anr.
Advocates: P.C. Bhandari, J.
Excerpt:
.....both the establishments. however, mere possibility of such an anomaly resulting by itself does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - ' 5. it clearly follows from the combined operation of section 388 and section 384 that where an order within the meaning of section 384 of the act has been passed by a court inferior to that of the district judge within the meaning of sub-sections 1 and 2 of section 388, then an appeal from an order granting, refusing or revoking a certificate passed by such judge shall lie to the district judge and not to the high court, and, further, that the district judge in such a case has all the powers which the..........was filed, dismissed the objections and allowed the succession certificate to the respondent. the present appeal has been filed from the aforesaid order. 3. a preliminary objection has been raised by learned counsel for the respondent as to the maintainability of the appeal in this court. the argument of learned counsel is that, in the present case, the succession certificate was granted by the civil and additional sessions judge of jhalawar and not by the district judge, and, therefore, an appeal from an order passed by such judge who was subordinate to the district judge lay to the district judge and not to this court. 4. section 388 of the act obviously governs the question. sub-section (1) of this section lays down that the state government may, by a notification in the official.....
Judgment:

I.N. Modi, J.

1. This is an appeal by Mst. Bhamvar Bai, Laxmi Bai and Radha Bai objectors in a case for grant of a succession certificate under Section 372 of the Indian Succession Act (hereinafter referred to as the 'Act').

2. The material facts out of which this appeal arises may be very shortly stated as follows. The estate with respect to which the present dispute arose belonged to one Shrinath who died on 4-6-1952. The respondent Balmukand applied to obtain a succession certificate with reference to certain debts of the deceased on the ground that he was the son of the deceased Shrinath,

This application was contested by the present appellants on the ground that Balmukand respondent was not the son of Shrinath at all and thatthe objectors who were the daughters of the deceased were his nearest heirs. The Civil Judge of Jhalawar, in whose court the application for succession certificate was filed, dismissed the objections and allowed the succession certificate to the respondent. The present appeal has been filed from the aforesaid order.

3. A preliminary objection has been raised by learned counsel for the respondent as to the maintainability of the appeal in this Court. The argument of learned counsel is that, in the present case, the succession certificate was granted by the Civil and Additional Sessions Judge of Jhalawar and not by the District Judge, and, therefore, an appeal from an order passed by such Judge who was subordinate to the District Judge lay to the District Judge and not to this Court.

4. Section 388 of the Act obviously governs the question. Sub-section (1) of this section lays down that the State Government may, by a notification in the official Gazette, invest any court inferior in grade to that of a District Judge with power to exercise the functions of a District Judge under Part X of the Act, which deals with succession certificates. It may be pointed out here that by notification No. F I (102) Jud/50. dated 7-8-1952, the Government of Rajasthan has invested all Senior and Additional Sessions Judges in Rajasthan by virtue of their office with the power to exercise functions of a District Judge under Part X of the Act within the local limits of their jurisdiction.

It is, therefore, indisputable that the Senior and Additional Sessions Judge who decided the case in the first instance had the authority to do so. Sub-section (2) then provides that any inferior court so invested shall have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by Part 10 of the Act. Then comes the proviso which is important. The proviso is in these terms :

'Provided that an appeal from any such order of an inferior court as is mentioned in sub- Section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.'

It may be convenient at this place to reproduce the material portion of Section 384 which runs as follows :

'(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.'

5. It clearly follows from the combined operation of Section 388 and Section 384 that where an order within the meaning of Section 384 of the Act has been passed by a Court inferior to that of the District Judge within the meaning of Sub-sections 1 and 2 of Section 388, then an appeal from an order granting, refusing or revoking a certificate passed by such Judge shall lie to the District Judge and not to the High Court, and, further, that the District Judge in such a case has all the powers which the High Court possesses in the matter of appeals made to it from a like order passed by the District Judge.

It is true that an inferior court properly invested with jurisdiction to decide such cases by the State Government in accordance with Sub-section 1 of Section 388 has concurrent jurisdiction with 'the District Court in so far as the exercise of all the powers conferred by this Part of the Succession Act is concerned; but this must be read subject to the proviso to Sub-section (2) of Section 388-which clearly provides that an appeal from any order of an inferior court falling within the scope of Section 384 of the Act can only lie to the District Judge and not to this Court. Learned counsel for the appellants draws my attention to Section 372 of the Act but, that, in my opinion, must be read in harmony with Sections 384 and 388.

6. The result is that the preliminary objection succeeds and this appeal must be held to havebeen wrongly filed in this Court. I. therefore,order that the memorandum of appeal shall bereturned to the appellants for presentation to theproper court. Having regard to all the circumstances, I would leave both parties to bear theirown costs in this Court, but further costs shallabide the result.


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