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Roshan Bai Vs. Dharam Chand - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 78/71
Judge
Reported in1976WLN(UC)102
AppellantRoshan Bai
RespondentDharam Chand
Excerpt:
.....to and take security us provided in section 375 of the indian succession act. the learned district judge on consideration of the evidence led by the parties has prima facie found dharam chand to be the person best entitled to the succession certificate......: mst. dakh bai died on 20-1-67 in udaipur. after her death, two claimants, mst. roshan bai and dharam chand, filed two separate applications for the grant of succession certificate under section 372 of the indian succession act. mr roshan bai claimed herself to be the nearest heir on account of her being the disputer of tile deceased. dharam chand set up a will alleged to have been made by the deceased in his favour. he claimed succession certificate on the basis of the will on 2.11.62. the learned dist judge after examining evidence came to the conclusion that the will was proved. he accordingly dismissed the application filed by mst. rosban bai and accepted the application filed by dharam chand and granted him the succession certificate. both these orders were passed, by the.....
Judgment:

S.N. Modi, J.

1. This civil miscellaneous first appeal under Section 384 of the Indian Succession Act is directed against the judgment of the District Judge, Udaipur dated 27-2-1971.

2. The facts giving rise to this appeal are as follows : Mst. Dakh Bai died on 20-1-67 in Udaipur. After her death, two claimants, Mst. Roshan Bai and Dharam Chand, filed two separate applications for the grant of Succession Certificate under Section 372 of the Indian Succession Act. Mr Roshan Bai claimed herself to be the nearest heir on account of her being the disputer of tile deceased. Dharam Chand set up a will alleged to have been made by the deceased in his favour. He claimed succession certificate on the basis of the will on 2.11.62. The learned Dist Judge after examining evidence came to the conclusion that the will was proved. He accordingly dismissed the application filed by Mst. Rosban Bai and accepted the application filed by Dharam Chand and granted him the succession certificate. Both these orders were passed, by the District Judge vide judgment dated 27-2-71. Dissatisfied with the said judgment Mst. Roshan Bai has filed this appeal.

3. Mr. Tatia on behalf of the appellant has strenuously contended that the will set up by Dharam Chand is a forged one. He also submitted that there is no proof that, the will was executed by Mst. Dakh Bai In sound state of health. He also pointed out certain suspicious circumstances which according to him show that the said will was never executed by Ms. Dakh Bai.

4. In my opinion I should not deal with this intricate question at this stage. It is well settled that art inquiry for grant of succession certificate is a summary inquiry, and it is neither conclusive nor it operates as res judicata in a regular suit (see Section 387).

5. Sub-section (3) of Section 373 lays down that:

If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

The intention of Sub-section (3) is not to save the court the trouble of making any inquiry at all, but to allow the prima facie title to the certificate to privet when a question of fact or law arises in the enquiry, too difficult to be determined in a summary proceeding In a case like the present, where the question of title is in doubt, the court should decide it on prima facie grounds and grant a certifies e to the person best entitled to and take security us provided in Section 375 of the Indian Succession Act. The learned District judge on consideration of the evidence led by the parties has prima facie found Dharam Chand to be the person best entitled to the succession certificate. I do not think it proper to interfere with this finding. But at the same time the learned District Judge ought to have required Dharam Chand to furnish security under Section 375 of the Indian Succession Act. It may be mentioned her that under Section 375(1) of toe Indian Succession Act, she District Judge is bound to require as a condition precedent to the grant of a certificate that the person to whom the grant it made should furnish security in cases coming under Sub-sections (3) & (4) of Section 373 As already remarked above, the present case squarely fact within the ambit of Sub-section (3) of Section 373 and it was the bounden duty of the learned District judge to require security from Dharam Chand as a condition precedent to the grant, of certificate.

6. I accordingly allow the appeal in part and while maintaining the order passed by the learned District Judge, modify it to this extent only that the succession certificate shall be granted to Dharam Chand only on his furnishing security to the tune of Rs. 4,000/- with one surety with stipulation that he shall render the account of debts and securities received by him and also indemnity persons who may be entitled to the whole or any part of those debts and securities.

7. I leave the parties to bear their own costs.


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