CASE NO.: Appeal (civil) 3325 of 2008 PETITIONER: C.K. Prahalada & Ors RESPONDENT: State of Karnataka & Ors DATE OF JUDGMENT: 06/05/2008 BENCH: S.B. Sinha & Lokeshwar Singh Panta JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 3325 OF 2008
(Arising out of SLP (C) No.7452 of 2006)
S.B. Sinha, J.
1. Leave granted.
2. This appeal is directed against the orders dated 24.10.2005 and dated
1.12.2005 passed by the High Court of Kanataka at Bangalore whereby and
whereunder delay of 2487 days in filing the appeal has been condoned and
the said appeal has been allowed.
3. The basic fact of the matter is not in dispute.
The brother of Madwaramanachar, father of the appellant, was
admitted to S.D.S. TB Hospital at Bangalore. All the articles from the body
of his brother were removed by the father of the appellant. After his death,
the father of the appellant requested the hospital authorities to hand over the
obsquecies seized wherefor a written request was made on 9.6.1981.
The Superintendent of the said hospital passed an order that the
articles kept by the father of the appellants must be delivered back to the
hospital authorities for being kept in a safe custody so as to enable them to
deliver the same to the persons entitled therefor. Delivery of the articles was
insisted before handing over the dead body. The said articles were handed
over to the hospital authorities wherefor an acknowledgment was issued.
4. An application for grant of succession certificate was filed by the
father of the appellants on 24.8.1981. In the said proceedings, one
Gowramma, wife of the deceased, was impleaded as a party. She expired
during the pendency of the said proceedings. She, allegedly left behind one
S. Basavarajappa, who is said to be her adopted son. By an order dated
5.7.1991, succession certificate was granted in favour of the appellant in
respect of the following :
1.
Amount in vijay Bank Togarsi
S.B. Account No.309 with
interest
Rs.5-00
2.
Amount in Syndicate Bank,
Shimoga S.B. Account No.27717
Ledger Folio No.30 with interest
Rs.318-65
3.
Amount in syndicate Bank,
Shimoga Koppa, S.B. Account
No.7/89 folio 4289/17 with
interest
Rs.19379-59
Gold Articles belonging to deceased in deposit in
the Hospital at Bangalore.
Gram Mgs
One Sudarshan ring 11 – 700
One Ring with red Stones 5 – 300
One Finb sing shigd stones 6 – 600
One Bar 46 – 800
39 – 450
Cash 160 – 00
5. Despite production of the said succession certificate, the hospital
authorities did not return the said articles and documents to the appellant’s
father, whereupon a suit in the court of Additional City Civil Judge,
Bangalore seeking a direction to the hospital authorities-defendants to hand
over the articles to the appellants or in alternative pay the value thereof
which was assessed at Rs.45,000/- was filed
6. No notice under Section 80 of the Code of Civil Procedure, however,
was served upon the State. An application under sub-section (2) of Section
80 of the Code was filed which is said to have been allowed.
Before the learned Trial Judge, no written statement was filed by the
State. It was decreed ex parte on decree was passed on 31.10.1997.
7. An execution case was filed in the year 2003 for execution of the said
decree. Upon receipt of the summons from the executing court, a first
appeal was preferred by the State of Karnataka. As indicated hereinbefore,
the same was barred by 2487 days.
An application for condonation of delay was filed in the said appeal
being IA No.1 of 2005 which, by reason of a judgment dated 24.10.2005
was allowed. The High Court by reason of its judgment dated 1.12.2005
pointed out various deficiencies in the said decree and opined that the
judgment and decree passed by the learned Trial Judge was not sustainable
in law, stating :
(i) No urgency was shown for filing the suit in terms of sub-section (2) of
Section 80 of the Code of Civil Procedure;
(ii) Smt. Gowramma was a necessary party in the suit; and
(iii) The value of the articles was not mentioned in the succession
certificate. There was nothing to show that the plaintiff was the only
heir of the deceased.
It was directed :
“The appeal is allowed an the impugned judgment
and decree dated 31.10.1997 made in O.S.
No.3830/1994 on the file of II Additional City
Civil Judge at Bangalore City, is set aside and the
matter is remitted back to the Trial Court, with a
direction to the parties to appear before the Trial
Court for further proceedings on 23.12.2005,
without notice. Further, the Trial Court is directed
to afford an opportunity to the defendants to file
the written statement within 30 days from
23.12.205 and dispose of the suit in accordance
with law.”
8. Ms. Kiran Suri, learned counsel appearing on behalf of the appellant,
would submit that the High Court committed a serious error in condoing the
delay of 2487 days in preferring the appeal by the State. It was furthermore
urged that the appellant has failed to prove any cause far less any sufficient
cause therefor. The learned counsel contended that the High Court should
not have remitted the matter back to the trial court keeping in view the fact
that the short question which arose for its consideration was as to whether
the hospital authorities having asked the appellants’ father to obtain a
succession certificate was bound to return the articles to him him on
production thereof.
9. Mr. Hegde, learned counsel appearing on behalf of the respondents,
however, supported the impugned judgment.
10. One Gowramma, as noticed hereinbefore, was impleaded as a party in
the proceedings for grant of succession certificate. She claimed herself to be
the wife of the deceased. Appellant knew that the hospital authorities had
handed over the documents and goods to her. She was, therefore, a
necessary party. As she expired during the pendency of the proceedings, her
heirs and legal representatives should have been impleaded as parties in the
said proceedings.
The decree might have been passed ex parte but when the same has
been brought to the notice of this Court, in our opinion, in exercise of our
discretionary jurisdiction under Article 136 of the Constitution of India, we
should not interfere therein.
It is now a well settled principle of law that this Court would not
exercise its extraordinary jurisdiction only because it is lawful to do so. (See
M/s. Tanna & Modi v. C.I.T. Mumbai XXV & Ors. [2007 (8) SCALE 511]
This Court has the power to pass necessary orders for doing complete justice
to the parties. The High Court, in our opinion, has rightly held that in the
aforementioned situation, Gowramma was a necessary party.
A succession certificate is granted for a limited purpose. A Court
granting a succession certificate does not decide the question of title. A
nominee or holder of succession certificate has a duty to hand over the
property to the person who has a legal title thereto.
By obtaining a succession certificate alone, a person does not become
the owner of the property.
11. In Vidhyadhari & Ors. v. Sukhrana Bai & Ors. [(2008) 2 SCC 238],
this Court held :
“14. Therefore, though we agree with the High
Court that Sukhrana Bai was the only legitimate
wife yet, we would choose to grant the certificate
in favour of Vidhyadhari who was his nominee and
the mother of his four children. However, we must
balance the equities as Sukhrana Bai is also one of
the legal heirs and besides the four children she
would have the equal share in Sheetaldeen’s estate
which would be 1/5th. To balance the equities, we
would, therefore, choose to grant succession
certificate to Vidhyadhari but with a rider that she
would protect the 1/5th share of Sukhrana Bai in
Sheetaldeen’s properties and would hand over the
same to her. As the nominee she would hold the
1/5th share of Sukhrana Bai in trust and would be
responsible to pay the same to Sukhrana Bai. We
direct that for this purpose she would give a
security in the trial court to the satisfaction of the
trial court.”
(Emphasis added)
12. It may be true that there was enormous delay in filing the appeal.
Ordinarily, this Court would not have condoned the said delay in filing the
appeal but in this case, the First Appeal filed by the State has also been
allowed by the High Court.
Keeping in view the nature of the order passed by the High Court, we
are of the opinion that it is not a fit case where we should interfere with the
judgment of the High Court dated 24.10.2005 which will have the effect of
setting aside its order dated 1.12.2005 also. We, however, are of the opinion
that the State must pay a sum of Rs.10,000/- by way of costs to the
appellant. We further direct that Basavarajappa should be impleaded as a
party in the suit. It will also be open to the appellant to pray for such other
relief or reliefs in the suit as she may be advised in the matter.
13. The appeal is dismissed with the aforementioned directions. In the
facts and circumstances of the case, however, there shall be no order as to
costs.