Skip to content


Mulukh Raj Sharma Vs. Raj NaraIn Sharma and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 1870 of 1956
Judge
Reported inAIR1957Cal687,61CWN621
ActsSuccession Act, 1925 - Section 384 and 384(1)
AppellantMulukh Raj Sharma
RespondentRaj NaraIn Sharma and ors.
Appellant AdvocateChandra Narayan Laik and ;Murari Mohan Dutt, Advs.
Respondent AdvocateManan Kumar Ghose, Adv.
Cases ReferredNissa Bibi v. Masum Ali
Excerpt:
- .....are relevant for the purpose of this rule are these:2. on the death of one saritaram sharma, opposite parties nos. 1 and 2 named rajnarain sharma and shyamdeo sharma obtained a succession certificate for a debt due to the deceased amounting to rs. 5913/15/6. on 8th of september 1953, the petitioner who describes himself as the brother of the deceased santaram filed an application for revocation of the succession certificate granted in favour of opposite parties nos. 1 and 2 but he did not proceed with that application and it was accordingly rejected. on 1st december 1954, the petitioner filed another application for revocation of the succession certificate in favour of opposite parties nos. 1 and 2 which gave rise to revocation case no. 209 of 1954. this revocation case, however,.....
Judgment:

Lahiri, J.

1. In this case the only question that requires consideration Is whether the District Judge of Howrah against whose order this Rule has been obtained was right in holding that no appeal lay against the order of the District Delegate Howrah, to Revocation Case No. 209 of 1954. The factswhich are relevant for the purpose of this Rule are these:

2. On the death of one Saritaram Sharma, opposite parties Nos. 1 and 2 named Rajnarain Sharma and Shyamdeo Sharma obtained a succession certificate for a debt due to the deceased amounting to Rs. 5913/15/6. On 8th of September 1953, the petitioner who describes himself as the brother of the deceased Santaram filed an application for revocation of the succession certificate granted in favour of opposite parties Nos. 1 and 2 but he did not proceed with that application and it was accordingly rejected. On 1st December 1954, the petitioner filed another application for revocation of the succession certificate in favour of opposite parties Nos. 1 and 2 which gave rise to Revocation Case No. 209 of 1954. This revocation case, however, was dismissed for default on 9th July 1955 by the District Delegate of Howrah and against that order dated 9th July 1955, the petitioner filed an appeal before the District Judge. The learned District Judge has dismissed the appeal on the preliminary ground that the appeal against that order was not maintainable.

3. Mr. Laik, appearing in support of this Rule, has argued that the learned District Judge failed to exercise a jurisdiction vested in him by law in dismissing the appeal on the preliminary ground that the appeal was not maintainable and he relied upon the provisions, of S. 388 of the Indian Succession Act. Sub-section (1) of Section 388 provides that the Provincial Government may by notification invest any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under Part X of the Indian Succession Act including the power to grant succession certificates. The proviso to Sub-section (2) is to this effect:

'.................. an appeal from any such-order of an inferior court as is mentioned in sub-section (I) of Section 384 shall lie to the District Judge and not to the High Court ..............'

The order against which an appeal is provided by the proviso is to be found in Sub-section (1) of Section 384 which says that an appeal shall lie against an order 'granting, refusing or revoking a certificate under this Part'.

4. Mr. Ghose, appearing on behalf of minor opposite party No. 2, has raised a preliminary point to the effect that an order refusing to revoke a certificate is not an order 'granting, refusing or revoking a certificate.' On a plain construction of Section 384(l), it seems to us that an appeal is contemplated against an order (a) granting a certificate; (b) refusing a certificate and (c) revoking a certificate. An order refusing to revoke a certificate does not come under any of the three classes of order specified above. We are of opinion that this argument of Mr. Ghose is correct and should be accepted. In the present case, the only prayer made by the petitioner in the application filed by him on the 1st December 1.954, was for revoking the certificate granted in favour of opposite parties Nos. 1 and 2 and therp was no prayer for granting any certificate in his favour. Upon these facts we shall proceed to discuss the authorities which have been cited by the parties before us.

5. The first case relied upon by Mr. Ghose is a decision of the Allahabad High Court in the case of Krishna Kumari v. Chaudhri Naubehar Singh : AIR1931All242 . In that case, it was held that no appeal lies from an orderrefusing to cancel a succession certificate. In the body of the judgment, however, It appears that the application that was filed was not for cancellation of the certificate but for cancellation of asecurity bond. We do not know whether this report is a slip on the part of the reporter or a Blip In the judgment itself and therefore We are not inclined to place much reliance upon this report of the judgment. There are however, other cases of other High Courts directly on the point. In the case of Ahmed Ebrahim v. Government of the Province of Bombay AIR 1943 Bom 50 (B), it was held by a Division Bench of the Bombay High Court that an order on' an application to cancel a succession certificate amounting to a refusal to revoke, does not come under S. 384 and is not appealable. The same view was taken by the Patna High Court in the case of Singeshwar Prasad v. Mt. Surja Devi, : AIR1952Pat142 . In the Lahore High Court also a single Judge of that Court took a similar view in the case of Rura Mal v Mt. Parmeshari, AIR 1933 Lah 56 (D).

6. There are two earlier decisions which have been relied upon by Mr. Laik in support of the view that an appeal lies against an order refusing to revoke a certificate. The first decision relied upon by Mr. Laik is a decision of the Bombay High Court in the case of Manchharam v. Kalidas, ILR 19 Bom 821(E), and the second case is the decision of the Allahabad High Court in the case of Sharif-un-Nissa Bibi v. Masum Ali, 42 All 347: (AIR 1920 All 139) (F). Both these cases were' considered by the Bombay High Court in the case of AIR 1943 Bom 50 (B). The earlier Bombaydecision was distinguished on the ground that in that case there were two applications for revoking the certificates granted to two different persons with respect to the same estate and the Bombay High Court held that one of the parties had clearly a right to appeal against the order revoking his certificate and the order refusing to revoke his rival's certificate was in fact the same order on a different application. It was held on that ground that the appeal was really preferred against the order revoking a certificate. In the case of 42 All 347: (AIR 1920 All 139) (F), in the application for cancelling the certificate, the petitioner also made a prayer for granting a succession certificate to himself and the order that was passed was an order refusing both the prayers. The Allahabad High Court held that an appeal clearly lay against the order refusing to grant the certificate to the petitioner. These two decisions therefore are no authority for the proposition that an appeal will lie against an order which merely refuses to revoke a certificate and which does not refuse to grant a certificate to the petitioner. We respectfully agree with the views taken by the Bombay, Patna and Lahore High Courts on that point and hold that in the present case as the only prayer that was made by the petitioner was one for revoking the certificate granted to opposite parties Nos. 1 and 2, no appeal lay against the order refusing that prayer.

7. Apart from the question of law that has been raised by Mr. Laik on behalf of the petitioner we have no doubt In our mind that the petitioner's case is singularly without any merits. He filed one application for revocation of the certificate granted to opposite parties Nos. 1 and 2 and he did not Proceed with that application. Thereafter, he filed another application before the District Judge for staying the grant of succession certificates to opposite, parties Nos. 1 and 2 till the disposal of a certain title suit which had beeninstituted by him and that application was also refused. Thereafter, he filed a second application for revoking the grant which again wag allowed to be dismissed for default. We have no. doubt in our mind that the application filed by the petitioner was calculated to defeat the rights which were conferred upon opposite parties Nos. 1 and 2.

8. This Rule must, accordingly, be discharged but as there was no argument on behalf of the major opposite parties, we make no order as to costs. The costs of the Deputy Registrar have already been paid.

Guha, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //