ORDER
A.G. Qureshi, J.
1. This revision petition is directed against the order dated 1-10-85 passed by the Second Addl. Judge to the Court of District Judge, Ratlam in Succession Case No. 4 of 1982.
2. The facts leading to this revision petition, in short, are that the present applicant filed an application under Section 372 of the Indian Succession Act (hereinafter called the Act) for obtaining succession certificate regarding debts and securities forming part of the estate of the deceased Bhomsingh son of Ramlal Purhohit, aged about 62 years, who died on 10-7-1982 at Ratlam. The applicant claims to be real elder sister of the deceased who had no children or wife surviving him. According to the applicant the deceased had three accounts in the Banks specified in the petition, but she could not know the exact amount of the deposits in the Bank and she was also not in know of the different amounts advanced as loan to different persons. Therefore, she valu-ed the debts and securities provisionally at Rs.21,000/-. According to the applicant, the non-applicants Nos. 1 and 2 were claiming as widow and daughter of deceased Bhomsingh respectively, therefore, a prayer for issuance of citation to them was also made. However, the non-applicant No. 4 also became an objector. The proceedings for issuance of the certificate is still pending before the lower Court. However, during the proceedings LA. Nos. 7 and 8 were decided against the applicant. Hence this revision petition.
3. I.A. No. 7 has been filed on behalf of the applicant stating therein that the non-applicants Nos. 1 and 2, who are the objectors, have filed a civil suit before the Court of the District Judge wherein they have sought a declaration of being the wife and daughter of the deceased Bhomsingh and, therefore, the objectors have no locus standi to object to the grant of the succession certificate to the applicant in view of the fact that the matter pertaining to adjudication of the status of the objectors is already pending before competent Court. Therefore, their objections be dismissed in limine. I.A. No. 8 has been filed by the objectors non-applicants Nos. 1 and 2 wherein it has been prayed that the total amount for which the succession certificate has been sought in Rs. 1,93,888/- and, therefore, the applicant be directed to pay the court-fee on that amount. The lower Court disallowed LA. No. 7 and allowed LA. No. 8, aggrieved by which the revision is directed.
4. The learned counsel for the applicant Shri Kochetta strenuously argues that in view of the fact that succession certificate cannot be granted to the objectors, their objection should not have been considered by the lower Court as they have not applied for the grant of the succession certificate themselves. Therefore, keeping in view the provisions contained in Section 373(3) of the Act the lower Court should have granted the certificate in favour of the applicant. In support of his arguments he has cited the judgment of this Court in Bheraji v. Lalkunwarbai (C.M.A. No. 162 of 87 dated 8-2-1990) and the judgment in Ammini Ammal v. Lakshmi, AIR 1957 Keraia 90. On the strength of the aforesaid decision Shri Kochetta further argues that the objectors are not the applicants seeking a succession certificate. Therefore, their objections could not be considered by the lower Court, as the grounds on which the objections are based are already the subject-matter of a civil suit and the decision in the civil suit being an intricate matter requiring decisions on law and facts, the certificate should have been issued under Section 373(3) of the Act, the applicant having the best prima facie title. His other contention is that the amount involved in the succession certificate is not yet definite, therefore, the Court could not ask the applicant to pay the court-fee on the amount which has been stated in LA. No. 8 by the objectors.
5. On the other hand the learned counsel for the non-applicants Shri Harbhajanka has cited the judgment in Rampyari v. Dharamdas, AIR 1984 All 147 and AIR 1942 Madras 709 (1) (Firm of Patnam Lakshminarayana Chetti v. Grandhe Seshamma).
6. After considering the respective arguments of the learned counsel and considering the judgments cited by them. I am of the view that the Court was justified in holding that the objection of the objectors cannot be rejected in limine on the ground that the objections involve decisions of complicated question of law and fact. In AIR 1942 Madras 709(1) (supra) it has been held by a Division Bench of the Court that a District Judge cannot dismiss an application under Section 373 of the Succession Act on the ground that complicated questions of law and fact have to be gone into. He can dismiss an application only when he is satisfied that there are no grounds for entertaining it. If there are grounds for entertaining an application but the right to the certificate is contested, the District Judge must make an order for the grant of certificate to one party or the other. However, he need not decide the intricate questions of law and fact. The Allahabad High Court in Rampyari v. Dharamdas (supra) has held that the validity of a void marriage being in contravention of the provisions of Section 5(i) read with Section 11 of the Hindu Marriage Act can be gone into at the instance of a third aggrieved party even after the death of one of the spouses to the marriage. This question was decided on a reference in a succession case wherein the legality of the marriage of one of the parties to the proceedings was challenged. In Ammini Ammal v. Lakshmi (AIR 1957 Kerala 90) (supra) the Kerala High Court has held that Indian Succession Act is not intended to affored litigating parties an opportunity of litigating contested questions of title to property. The Court has, no doubt, to satisfy itself that the person to whom it grants a certificate has a prima facie right and for that purpose some enquiry may be necessary in many cases, but if on facts admitted by both the parties the prima facie title to the certificate is clear the court can dispense with the enquiry.
7. In the light of the aforesaid judgments it is clear that the Court has to hold an enquiry in respect of the issuance of a succession certificate if there is any objection about entitlement of the applicant to obtain such certificate. However, the Court can dispense with such an enquiry where the claim of the applicant is admitted. It is true that Sub-section (3) of Section 373 of the Act empowers a judge to issue a certificate to the applicant if the court is satisfied that the applicant has prima facie the best title to obtain the certificate, but before holding that also the judge has to come to a conclusion that it is not possible for the Judge to decide the right to the certificate without determining questions of law or fact which appear to be intricate and difficult for determination. As such first of all on the facts and circumstances of the case the Judge has to come to a conclusion that the questions of fact or law are so intricate and difficult that it is not possible to adjudicate upon them, then the Judge can proceed by holding an enquiry about the prima facie title of the applicant and if the Judge comes to a conclusion that the applicant has prima facie the best title, then he can issue the certificate to the applicant under the provisions contained in Section 373(3) of the Act.
8. In the instant case the application made by the present applicant was to the effect that as the respondents Nos. 1 and 2 claiming to be the wife and daughter of the deceased respectively have already filed a civil suit no enquiry in the matter is necessary and the certificate be issued to the applicant under the provisions contained in Section 373(3) of the Act. In my opinion, such a course of action is not permissible under the law. The court has first to determine whether the questions raised in the application for grant of certificate can be decided by itself or they are so difficult or intricate that it is not possible to decide them and thereafter also the Court has also to enquire into the prima facie title of the applicant being superior to others. As such the dispensing of the enquiry is permissible only when the facts are admitted in respect of the prima facie title of the person and the other issues which may have been raised being complicated questions about which a judicial finding could not have been given by the Court in the summary enquiry. Therefore, in my opinion, the learned lower Court has not erred in disallowing I.A. No. 7 of the applicant only on the ground that the non-applicants Nos. 1 and 2 have filed a civil suit claiming the declaration pertaining to their status as wife and daughter of the deceased respectively.
9. As regards the court fee, Clause (f) of Section 372 provides that application for certificate should specify the debts and securities in respect of which the certificate is applied for. Sub-section (3) of Section 379 of the Act further provides that any sum received under Sub-section (1) shall be refunded to the person who deposited it in case the application is not allowed and the same is not expended for the purchase of the stamps for court fee for issuance of the succession certificate. Now, in the instant case the tentative valuation of the applicant of the certificate is Rs.21,000/-whereas according to the objectors the amount for which the succession is being sought is around Rs. 1,88,000/-. The Court has allowed the prayer of the objectors and directed the applicant to pay the court fee accordingly. However, there does not appear to be any finding of the Court in respect of the actual amount of the debts and securities in respect of which the certificate is applied for. The court should have first decided the amount of debts and securities before directing the applicant to pay the court fee. Now, the contention of the applicant is that she does not know the exact amount of the debts and securities whereas the objectors have quantified the amount and stated so in the application. As such the Court should first hold a summary enquiry and if necessary by calling the record of the Bank to ascertain the amount of debts and securities and then to pass an order in respect of the deposit. The deposit is refundable as has been provided u/Section 379(3) of the Act. Therefore, the calculation need not be exact. If the exact amount cannot be ascertained, then a finding about the tentative amount can be given and before issuance of the certificate if there be deficiency the applicant can be asked to make that payment or if the amount is in excess it can be refunded. Consequently, it is held that the learned lower Court has not erred in any way in disallowing I.A. No. 7 filed by the applicant. However, it has erred in passing an order on I.A. No. 8 directing the applicant to deposit the amount equivalent to the court fee on the basis of the calculation made by the objectors-non-applicants. The Court is directed to first ascertain the amount of debts and securities and then pass an order in respect of deposit of the court fee amount.
10. The revision petition is accordingly partly allowed. In the circumstances of the case there shall be no order as to costs.
