Pabitra Mohan Pradhan and anr. Vs. Damayanti Pradhan - Court Judgment

Pradip Mohanty, J.

1. The petitioners have filed this revision challenging the order dated 10.9.2001 passed by the learned Additional District Judge, Anguf, in Misc. Appeal No. 8 of 2001, setting aside the order dated 1.3.2001 of the learned Civil Judge (Sr. Divn.), Athamallik, in Succession Misc. Case No. 1 of 2000 and also remanding the case to the trial Court for determination as to whether the petitioner-wife alone in the Court below is entitled to get the succession certificate.

2. Shorn of unnecessary details, the brief facts of the case are as follows :

The two petitioners in the present civil revision are the son and daughter and the opposite party is the wife of Late Srinibas Pradhan respectively for grant of a succession certificate.

The opposite party filed an application under Section 372 of the Indian Succession Act (hereinafter referred to as 'the Act') before the learned Civil Judge (Sr. Divn.), Athamattik for grant of succession certificate to receive family pension, general-provident fund and dues payable to late Srinibas Pradhan, alleged to be the deceased husband. In the said application, the opposite party has narrated that deceased Srinibas Pradhan died on 5.7.1997 leaving behind her and the present petitioners as his legal heirs. The petitioners, son and daughter of said deceased Srinibas through his first wife, contested the case on the grounds inter alia that the opposite party was not the second wife of deceased Srinibas. Their further case is that they are the only legal heirs of deceased Srinibas and Damayanti, the opposite party had never lived with Srinibas till 1987 and, therefore, Damayanti is not entitled to get the status of 'wife' of deceased Srinibas. Therefore, the petitioners, in the civil revision, only are entitled to get the benefit from the Postal Department after death of Srinibas and as such, the petition for succession certificate is liable to be rejected.

3. The learned Civil Judge (Sr. Divn.), Athamallik, after taking into consideration the oral and the documentary evidence has come to the conclusion that the petitioner before him is the legally married wife of deceased Srinibas. Accordingly, the trial Court allowed the petition and issued succession certificate in her favour for grant of family pension of deceased Srinibas along with her share in the G.P.F. amount, leave encashment and the arrear pay and allowances from the Postal Department.

The present petitioners being aggrieved by such order of the learned Civil Judge (Sr. Divn.) filed Misc. Appeal No. 8 of 2001 before the learned Additional District Judge, Angul.

The learned Additional District Judge, Angul, after due consideration of the materials on record, while confirming the findings of the learned Civif.Judge that the opposite party is the legally married wife of deceased Srinibas, set aside the order passed by the learned Civil Judge and remanded the matter with a direction to determine whether the opposite party-wife alone is entitled to get the succession certificate to receive family pension or not.

Before the learned trial judge, in order to prove her case, the opposite party examined six witnesses including herself and proved 34 documents (Exts. 1 to 34) and the present petitioners examined five witnesses in their favour including petitioners No. 1 and proved two documents (Exts. A and B).

4. Mr. Ghose, learned counsel appearing for the petitioners, submits that the Courts below acted without jurisdiction in granting the succession certificate in favour of the opposite party. He further contended that the present petition for grant of succession certificate is of summary nature. Therefore, a decision on any point is not a bar in a subsequent case. His further contention is that the Courts below decided the case solely on the basis of the order passed in the maintenance case under Section 125, Cr.P.C. and the findings of the criminal case are not binding in a civil proceeding. The question of valid marriage has to be proved in a civil suit. His further contention is that, as per Section 370 of the Indian Succession Act the claims are not debts and no succession certificate can be granted in favour of the present opposite party.

5. Mr. Sahu, learned counsel appearing for the opposite party, submits that the present revision petition is not maintainable in law. The learned Additional District Judge has not committed any material irregularity so as to enable the present petitioners to invoke the jurisdiction of this Court under Section 115 of the Civil Procedure Code. His further contention is that, the Courts below have concurrently found that in respect of the claim of the present opposite party, succession certificate can be granted. He also contends that the succession proceeding being summary in nature, the disputed status of a person cannot be decided and during the life time of deceased Srinibas, the present opposite party and deceased Srinibas lived as wife and husband and, therefore, this opposite party was justifiably held to be the legally married wife of deceased Srinibas and was granted maintenance.

In support of his contention, Mr. Sahu has relied upon the decision reported in AIR 1998 Karnataka 364, (Smt. Radhamma v. Union of India and Ors.), in which it has been held, on the basis of the facts of that case, that the order granting the succession certificate should not be interfered with unless factum of marriage is disputed. But in the instant case, the trial Court has relied upon the findings in the proceeding under Section 125, Cr.P.C. and also the voter list and it has been held by both the Courts below that the opposite party was the legally married wife of deceased Srinibas.

Mr. Sahu has further submitted that the proceeding under Section 372 of the Act being summary in nature, the standard of proof required in such enquiry having been adhered to, the Courts below are absolutely right in holding that the opposite party is the legally married wife of the deceased. With regard to maintainability of the Civil Revision, Mr. Sahu also relied upon a decision reported in AIR 1973 SC 76, The Managing Director (MIG) Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway, in which the Supreme Court has held :

'...... High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code.'

6. The aforesaid rival contentions of the learned counsel for the parties require careful consideration.

To answer this question, it will be convenient to quote provisions of the law regarding Succession Certificate. The expression 'succession certificate' has not been defined in the Act. The preamble to Succession Certificate (Act VII of 1889) gives an idea about the object of such certificate. The preamble states 'whereas it is expedient to facilitate the collection of debts on succession and afford protection to parties paying debts to the representatives of the deceased person'. The object in re-enacting part 'X' of the Act is to facilitate collection of debts and not to enable the parties to litigate question of disputed title. The grant of certificate does not determine any question of title or decide what privilege does or does not belong to estate of the deceased; it merely enables a party to whom certificate is granted to collect any debt or security belonging to the deceased (See Paruck Indian Succession Act, 8th Edn. P. 782).

7. The succession certificate under part 'X' of the Act can only be granted in following cases :

(a) When grant of probate or letters of administration is not compulsory under Sections 212 and 213.

(b) When deceased is an Indian Christian.

(c) When deceased is a Mohommadan.

(d) When deceased is a Hindu and has left a will and probate of such will is not compulsory. In case of joint Family property under Hindu Law etc.

Thus, family pension payable to the legal representative of the deceased does not need a Succession Certificate, even if it were a debt belonging to the deceased. However, Section 214 of the Act provides that no Court shall ;

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the estate of the deceased person or to any part thereof, or

(b) proceed upon an application by a person claiming to , be entitled to execute such debtor a decree or order for payment of his debt except on production by the person so claiming, or

(c) a succession certificate granted under part-X and haying the debts specified therein.

Sub-section (2) of Section 214 says that the word 'debt' in Sub-section (1) includes any debt except rent, revenue or profits, payable in respect of the land used for agricultural purpose.

In the leading cases of ILR 1909 36 (Calcutta) page 936, followed by AIR 1937 Calcutta 423 and AIR 1933 Calcutta 841, meaning of debt has been said to be 'a debt is a sum of money payable at present or in future by reason of present obligation'. AIR 1964 Andhra pradesh, page 378 says that Bank deposit is a debt. However, in AIR 1989 Orissa, page 236, gold ornaments pledged with the Bank as security for loan obtained does not come under the term 'debt' or 'security' initiating obtainment of succession certificate.

8. The matter has been clarified in a case reported in AIR 1996 Calcutta 417, Smt. Nirupama Sarkar and Ors. v. Life Insurance Corporation of India, which deals with a suit filed by the plaintiffs against the life Insurance Corporation for entitlement and recovery of family pension. It was held that it is an independent claim and not claimed through the deceased employee. As such, Section 214 of the Act would not be a bar against maintainability of the suit of such claim without production of succession certificate.

Though Section 370 of the Act does not apply, a representative of the deceased cannot maintain a suit or proceeding against an employer of the deceased without obtaining succession certificate under Section 214, provided it is a debt or security sought to be collected. Thus, to receive family pension, a succession certificate is not necessary as it is neither a 'debt' not 'security'.

9. But a perusal of the succession petition goes to show that the petitioner therein (opp. party in this revision) not only prayed for grant of certificate for family pension, but also for provident fund, leave encashment, arrear pay and allowances etc. Thus, a composite prayer has been made which also includes the provident fund.

So far as the provident fund dues are concerned, the same are governed under the provisions of the Provident Fund Act, 1925. Section 4 of the Provident Fund Act itself provides that, when under the rules of any Government or Railway Provident Fund, the sum standing to the credit of any subscriber if he is dead, shall, if the amount does not exceed rupees five thousand, stand as such, are not covered by Clause (a) and (b) of Sub-section (i) of Section 4. Clause (c)(i) would be applicable which says that any person nominated to receive the amount of debt under the rules of the Provident Fund on production by such person a certificate granted under the Succession Certificate Act, 1889 entitling the holder thereof to receive the payment of such sum or balance or part and if no person is nominated, Clause (c)(ii) of Sub-section (1) of Section 4 comes to play. The debt would be paid to any person who produces probate, letter or the certificate. Section 5(2) of the Provident Fund Act lays down as follows :

'(2) Notwithstanding anything contained in the Indian Succession Act, 1925, or the Bombay Regulation VIM of 1827, any person who becomes entitled as aforesaid, may be granted a certificate under that Act, or that Regulation, as the case may be, entitling him to receive payment of such sum or part, and such certificate shall not be deemed to be invalidated or superseded by any grant to any other person of probate or letters of administration to the estate of the deceased.'

The aforesaid provision envisages that in certain contingencies, a succession certificate should be obtained to establish the right of persons claiming the amount to receive the money. This Court, therefore, is of the opinion, considering the matter under the Provident Fund Act, that a succession certificate can be granted in certain contingencies. It, therefore, follows that this Act itself envisages that a succession certificate may be issued by the Court in respect of the provident fund money. This view gets support from a decision reported in AIR 1965 Allahabad 267, Smt. Rajjoo Devi v. Nageswar and Ors.

10. In view of the finding that succession certificate can be issued for disbursement of provident fund, the court below was absolutely justified in granting the certificate under the Act. Although the family pension is not a 'debt', but in view of the fact that there is a composite prayer for family pension, provident fund, leave encashment etc., the proceeding is maintainable, particularly when the authorities demanded the certificate under the Act for disbursement of the dues on account of the death of the employee. Therefore, the contention of the learned counsel for the petitioners that the Courts below acted without jurisdiction in granting the succession certificate is without substance and is devoid of merit.

11. The next question arises for consideration is whether the lower appellate Court is justified in remitting the matter to the trial Court to determine whether the opposite party alone is entitled to get the succession certificate to receive the family pension, provident fund etc. of deceased Srinibas Pradhan. In other words, the lower appellate Court directed to find out whether the present petitioners would also get the benefit on account of death of Srinibas Pradhan. In such eventuality, there is every possibility of apportionment of the dues of deceased Srinibas amongst the parties. Therefore, the impugned order is beneficial to the petitioners. Since the appellate Court has remitted the matter and there being no apparent error on the face of the record so as to interfere by this Court in exercise of the revisional powers, this Court is not inclined to interfere with the impugned order.

12. For the reasons aforesaid, the civil revision has no merit and is accordingly dismissed. There shall be no order as to cost.