Smt. Yashoda Sambhaji Sawant Vs. Smt. Savitra Sambhaji Sawant - Court Judgment

SooperKanoon Citationsooperkanoon.com/922369
SubjectSuccession
CourtMumbai High Court
Decided OnOct-17-2011
Case NumberSECOND APPEAL NO. 726 OF 2010
JudgeG. S. Godbole, J.
ActsIndian Succession Act, 1925 - Section 373, 383, 370, 390, 384, 388; Code of Civil Procedure (CPC), 1908, - section 115
AppellantSmt. Yashoda Sambhaji Sawant
RespondentSmt. Savitra Sambhaji Sawant
Excerpt:
[g. s. godbole, j.] indian succession act, 1925 - section 373, 383, 370, 390, 384, 388 - procedure on application -- section 383 provides for filing of an application to revoke succession certificate. section 384 and 388 read thus :- 388. investiture of inferior courts with jurisdiction of district court for purposes of this act.-(1) the state government may by notification in the official gazette, invest any court inferior in grade to a district judge with power to exercise the functions of a district judge under this part.1. notices issued to the sole respondent is awaited. however, by my order dated 2/9/2011 i had called upon the learned advocate for the appellant to address the court as to whether the second appeal would lie or not. accordingly, arguments have been advanced by the learned counsel for the appellant on that issue. 2. the original proceedings namely civil misc. application no. 62 of 2001 was filed by the respondent in the court of learned c.j.s.d. satara under section 373 and 383 of the indian succession act, 1925. part 10 of the said act containing section 370 to 390 deal with succession certificate. section 373 deals with the procedure to deal with an application for grant of succession certificate. section 383 provides for filing of an application to revoke succession certificate. section 384 and 388 read thus :- "384. appeal.-(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. (2) an appeal under sub-section (1) must be preferred within the time allowed for an appeal under the code of civil procedure, 1908. (5 of 1908). (3) subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the high court and as to review of judgment of the code of civil procedure, 1908, (5 of 1908.) as applied by section 141 of that code, an order of a district judge under this part shall be final." 388. investiture of inferior courts with jurisdiction of district court for purposes of this act.-(1) the state government may by notification in the official gazette, invest any court inferior in grade to a district judge with power to exercise the functions of a district judge under this part. (2) any inferior court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the district judge in the exercise of all the powers conferred by this part upon the district judge, and the provisions of this part relating to the district judge shall apply to such an inferior court as if it were a district judge: 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. (3) an order of a district judge on an appeal from an order of an inferior court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the high court and as to review of judgment of the code of civil procedure, 1908, (5 of 1908.) as applied by section 141 of that code, be final. (4) the district judge may withdraw any proceedings under this part from an inferior court, and may either himself dispose of them or transfer them to another such court established within the local limits of the jurisdiction of the district judge and having authority to dispose of the proceedings. (5) a notification under sub-section (1) may specify any inferior court specially or any class of such courts in any local area. (6) any civil court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a district judge shall, for the purposes of this section, be deemed to be a court inferior in grade to a district judge. " 3. in the present case application was heard by the learned c.j.s.d. satara who had been vested with the powers of the district judge under section 388(1) and against the said decision in civil mis. application no. 62 of 2001, the original applicant filed regular civil appeal no. 164 of 2004 which has been allowed by the impugned judgment and decree dated 9th july, 2010 by the learned extra joint ad-hoc district judge, satara. 4. in view of the clear bar contained in sub-sections 3 of section 388, the order impugned in this second appeal has been given finality and though power of the high court of entertaining a reference and revision has been retained and though the power of the district court to entertain a review has also been retained, further appeal is expressly barred. hence this second appeal is not maintainable. the remedy of the appellant is to file a cra. 5. on the oral application of mr. hatle, advocate for appellant, the second appeal is allowed to be converted into a cra under section 115 of the code. since the second appeal was filed within limitation and allowed to be converted, the cra will be deemed to have been filed on the date on which the second appeal was filed and is also in limitation. no objection regarding limitation shall therefore be raised by the office. 6. the appellant is granted leave to amend the entire proceedings by filing memo of cra duly sworn. this exercise should be completed within a period of 4 weeks from today. 7. interim order granted in civil application no. 1930 of 2010 is continued for a period of 4 weeks only so that the appellant can move appropriate bench taking up cra arising out of indian succession act, 1925.
Judgment:

1. Notices issued to the sole Respondent is awaited. However, by my order dated 2/9/2011 I had called upon the learned Advocate for the Appellant to address the Court as to whether the Second Appeal would lie or not. Accordingly, arguments have been advanced by the learned Counsel for the Appellant on that issue.

2. The original proceedings namely Civil Misc. Application No. 62 of 2001 was filed by the Respondent in the Court of learned C.J.S.D. Satara under section 373 and 383 of the Indian Succession Act, 1925. Part 10 of the said Act containing Section 370 to 390 deal with succession certificate. Section 373 deals with the procedure to deal with an application for grant of succession certificate. Section 383 provides for filing of an application to revoke succession certificate. Section 384 and 388 read thus :-

"384. Appeal.-(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.

(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908. (5 of 1908).

(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (5 of 1908.) as applied by section 141 of that Code, an order of a District Judge under this Part shall be final."

388. Investiture of inferior Courts with jurisdiction of District Court for purposes of this Act.-(1) The State Government may by notification in the Official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.

(2) Any inferior Court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:

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.

(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, (5 of 1908.) as applied by section 141 of that Code, be final.

(4) The District Judge may withdraw any proceedings under this Part from an inferior Court, and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub-section (1) may specify any inferior Court specially or any class of such Courts in any local area.

(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a Court inferior in grade to a District Judge. "

3. In the present case Application was heard by the learned C.J.S.D. Satara who had been vested with the powers of the District Judge under section 388(1) and against the said decision in Civil Mis. Application No. 62 of 2001, the original Applicant filed Regular Civil Appeal No. 164 of 2004 which has been allowed by the impugned Judgment and Decree dated 9th July, 2010 by the learned Extra Joint Ad-hoc District Judge, Satara.

4. In view of the clear bar contained in sub-sections 3 of section 388, the order impugned in this Second Appeal has been given finality and though power of the High Court of entertaining a reference and revision has been retained and though the power of the District Court to entertain a review has also been retained, further appeal is expressly barred. Hence this Second Appeal is not maintainable. The remedy of the Appellant is to file a CRA.

5. On the oral application of Mr. Hatle, Advocate for Appellant, the Second Appeal is allowed to be converted into a CRA under section 115 of the Code. Since the Second Appeal was filed within limitation and allowed to be converted, the CRA will be deemed to have been filed on the date on which the Second Appeal was filed and is also in limitation. No objection regarding limitation shall therefore be raised by the Office.

6. The Appellant is granted leave to amend the entire proceedings by filing memo of CRA duly sworn. This exercise should be completed within a period of 4 weeks from today.

7. Interim order granted in Civil Application No. 1930 of 2010 is continued for a period of 4 weeks only so that the Appellant can move appropriate Bench taking up CRA arising out of Indian Succession Act, 1925.