JUDGMENT
D.H. Nasir , J.
1. This Civil Revision Petition is directed against the order passed in A.S. No. 27 of 1991 by the learned III Additional District Judge, Kakinada. The order directing issue of Succession Certificate by the learned III Additional- District Judge, Kakinada, is challenged in this Revision Petition.
2. The grounds taken by the petitioner (Judgment-debtor) are briefly stated as follows:-
That the execution of Will-Ex.A-1 alleged to have been executed by late Akkayamma was not genuine and the same was not proved beyond any reasonable doubt;
That the evidence of R.W.I to the effect that the 1st respondent never looked after late Akkayamma duringher life time as also the allegation that the testator suffered from paralysis before her death and was not able to sec or speak or to do any work, was not taken into consideration by the appellate Court;
That there was discrepancy in the evidence deposed by P.W.I inasmuch as P.W.I deposed in his examination-in-chief that Akkayyamma was able to do her work when the Will in question was allegedly executed, but in his cross-examination he deposed that she was ill prior to her death; That the Court below ought to have seen that the burden of proof lay upon the 1st respondent to prove the execution of the Will-Ex-A-l;
That the failure to examine the Medical Officer with regard to the physical capacity of late Akkayyamma vitiated the case advanced by the decree holders;
That the lower Court should not have believed the evidence of P.Ws.2 to 4 who deposed that Akkayyamma gave the fixed deposit receipts to the Scribe- P.W.4 at the time of execution of the Will-Ex-Al, however, the number of the Fixed Deposit Receipts and the number of the Savings Accounts were not mentioned and that there was also a discrepancy regarding the Fixed Deposit Receipts and the amounts mentioned therein; and
That the 1st respondent was not closely related so as to believe that Akkayamma was looked after by the 1st respondent but it was the petitioner who was looking after Akkayamma and both were operating joint account.
3. In my opinion, the entire approach to the case both by the parties to the proceedings as well as the learned Judge of the trial Court and the learned Judge of the Appellate Court was wholly misconceived. The distinction between testamentary disposition and intestate succession has not been considered at all. Part VI of the Indian Succession Act, 1925 (for short ‘the Act) mainly deals with the testamentary succession, where as part V of the Act duals with the intestate succession. The necessity of obtaining a Succession Certificate under the provisions of the Act would arise only in cases where no Will is executed by a person for disposition of the property owned by him. If the Will is executed, the provisions of the Part VI of the Act relating to testamentary disposition are required to be invoked. In that view of the matter, therefore, in a case where proceedings for obtaining Succession Certificate are initiated, it is immaterial whether any disposition in respect of their property is attempted to be made or not. The person in whose name the Succession Certificate is issued does not acquire any ownership right of the property in question merely by issuance of a Succession Certificate. The existence of a Will, therefore, is totally irrelevant in the proceedings initiated for obtaining a Succession Certificate. The conclusion arrived at by the learned Dist. Munsif, Pithapuram that the petitioner was not entitled to Succession Certificate on the ground that the execution of the Will was not proved and the finding reversedby the 1st appellate Court by holding that the propounded of the Will succeeded in proving the Will which made him eligible to obtain Succession Certificate itself is a clear indication of the misconception on part of both the Courts below .
4. If a Will is executed in respect of the property owned by the deceased testator, it becomes propounders of the Will to obtain a probate of the Will so that the property could be administered or disposed of by the persons named as the executors of the Will in accordance with the testamentary disposition.
5. In the case before us, the proceedings have obviously been initiated for obtaining the Succession Certificate and, therefore, the question whether any Will existed in respect of the property in question or not was totally immaterial. What was required to be taken care of was whether the procedure as stipulated under Sections 372 and 373 of the Act has been followed or not.
6. Section 372 of the Act provides for an application to be made in that regard before the District Judge setting forth the following particulars, viz.,
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under Section 370 or under any other provision of this Act or any enactment, to the grant of the certificate or to the validity thereof if it were granted; and
(f) the debts and securities in respect of which the certificate is applied for.
Under sub-section (3) of Section 372, application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.
7. Under Section 373 of the Act, if the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-
(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given , and
(b) to be posted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.
8. A note is also required to be taken of the proposition of law that the Succession Certificate is not a filial adjudication of the question as to who is the next heir. The grant of Succession Certificate merely clothes the holder of the certificate with an authority to realise the debts of the deceased and to give an authority of discharge. The right to the certificate is not the same thing as the right to the estate of the deceased owner, but it is altogether unconnected with that right, for it would be unreasonable to hold that the right to the certificate may belong to a stranger who had no connection with the estate.
9. Section 385 of the Act provides that save as provided by this Act, a certificate granted thereunder in respect of any of the effects of a deceased person shall be invalid if there has been a previous grant of such a certificate or of probate or letters of administration in respect of the estate of the deceased person and if such previous grant is in force.
10. Part VI of the Act deals with the testamentary succession. The Succession Certificate is dealt with in Part X of the Act. The intestate Succession is covered by Part V of the Act. Sub-Section 2 of Section 29 under the said Part V of the Act lays down that the provisions of the said Part shall constitute the law of India in all cases of intestacy. The proposition which is sought to be made out in this Order is clearly reflected from Section 30 of the Act which provides that a person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. The illustrations given under Section 30 of the Act throw an ample light on the subject which are reproduced below:-
“(i) A has left no Will. He has died intestate in respect of the whole of his property.
(ii) A has left a Will, whereby he has appointed B his executor; but the will contains no other provisions. A has died intestate in respect of the distribution of his property.
(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.
(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest; and has died leaving the sum of 2,000 rupees and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of 1,000 rupees.'”
11. Section 32 of the Act provides that the property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to rules contained in Chapter I of Part V. Section 36 of the Act provides for the rules of distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants as contained in Sections 37 to 40 of the Act.
12. Reverting now to Part X relating to Succession Certificates, it is evident from Section 370 that a Succession Certificate cannot be granted under Part X with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration or probate. Section 371 of the Act provides that the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.
13. Section 387 of the Act which deals with the effect of decisions under this Act and liability of holder of certificate thereunder, lays down as follows:-
“No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.”
14. As already observed earlier, neither the parties nor the Courts below have taken into consideration the aforesaid provisions of the Indian Succession Act relating to intestate succession which has resulted into the misconception that the Will which was alleged to have been executed by Akkayamma had to be taken into consideration for the purpose of issuing the Succession Certificate. If the Will is proved, the necessity of obtaining Succession certificate in respect of the same property stands dispensed with and the disposition has to be made by the executors named in the Will in accordance with the legacies set out in the Will. The question of issuing Succession Certificate would arise only if the property in question is not subjected to disposition according to any Will.
15. The views expressed by this Court stand fully supported by the decision of the Division Bench of this High Court in Murari v. T. Rammohan Rao, (D.B.). The Division Bench in the said case held that the proceedings under Section 372 of the Act were summary in nature and a certificate would have to be issued to one party or the other. If there were intricate questions which could not be gone into a summary proceeding, the party who had prima facie the best title should be granted a certificate and the contesting party should be directed to establish his title in a civil Court. In order to protect the interests of the parties, security from the grantee of certificate is provided for under Section 375 of the Act.
16. Since, the above requirements of law do not appear to have been taken into account by both the Courts below, it is necessary that the entire matter should be remanded to the trial Court for deciding (1) firstly, whether there was a prima facie case to show that the Will was executed or not in respect of the property in question;
(2) if yes,
(a) Whether it was competent to decide the truth and execution of the Will;
(b) If not, what direction was required to be given to the parties to secure orders relating to legality and validity of the Will and to obtain consequent order for probating the Will or to obtain Letters of Administration as the case may be;
(3) if not,
the trial Court shall, after following the procedure prescribed by law, issue the Succession Certificate, if the jurisdiction is vested in him.
17. The matter is, therefore, remanded to the trial Court with the directions as stated above. The Civil Revision Petition is accordingly disposed of. No costs.