w^ ii'iii? i b ^ HIGH COURT OFCHHATTISGARH AT BILASPUR Sinale Bench : Hon'ble Shri Diijp Raosaheb Deshmukh, J. ApDlicants Non-ApDiicants Cavil RevisionNo.133 of2007 1. Bhagirathi Sharma, son of Ramsharan Tiwari, aged about|52 years 2. Shantanu Prasad Sharma, son of Ramsharan Tiwari; aged about 58 years 3. Kanhaiylal Sharma, son of Ramsharan Tjw^ri,agedaboutj56years 4. Mannulal Sharmaj, son of Ramsharan Tiwari, aged aboutj42years All residents of Udebhata, Tahsil Jarijgjr, District Janjgir-Champa ve'rsys 1. General Public, who are having interest Inthismatter 2; Ravishankar Sharma, So.n of B.G. Sharma, aged about 33 years, resident of Vidya Nagar, Bslaspur Revision under Section 388(3) ofthe indian Siiiccession Act. 1925 Present: Appiicants byShri RajeevShrivastava, learned counsel. Caveator/Non-Appiicant No.2 byShrilRajhish Singh Baghel, learned courisel. 9 ORALORDER (Passedon 15InNovember, 2007) Heard on I.A.No.2, an applicatson for taking documents onrecord. (2) The application is aiiowed. Documents are taken on record. (3) Aiso heard on admjssion. (4) The appijcants are aggrieved by an order dated27-10-2007 passed by the iind Additional DistrictJudge (F.T.C.), Janjgir in Miscellaneous Civi! Appeai No.5/2Q07, whereby the orderdated 03-12-2004 passed by the Civil Judge Ciass-l^ Janjgir in MisGellaneous ClviiCase No.20/1999, under Section 372 ofthelndian SuccessionAct, 1925 (hereinafter referred toas f" ~ . . . •, :.; 'fhe Act') granting a^ucGessiQn certificate in favour of non-appiicant N6.2 herein, was affirmed. (5) Brieffacts are that the appiicants herein filed^^^a^^ Section 372 of theAct for grant of succession certificate for the money ieft byRampyari, widow of iate Vishwanath Sharma, who was the brother of the appiicants. Non-applicant No.2 resisted the application on the ground that Rampyari had executed a Wiil in his favour on 05-09-1998 regarding her immovabie and movabie property. The saidWill, Ex.D-1 was produced by non-applicant No.2 before the Court and besides other witnesses atfesting witness Devi Chandrakar was also examjned. The learned Civil Judge Class-t/Janjgir, after recording evtdence of parties, held that non- appiicantNo.2 was having the best titie to the money, i.e., the Bank accounts and G.P.F. account Eeft by Rampyari since he had proved the execution of Wiii by Rampyari in hls favour. Accordingiy, rejecting the prayer of the applicants herein, the teamed Civi! Judge Class-1, Janjgir ordered issuance of a succession certificate in favour of non-applicant No.2 herein. Being aggrieved, the appiicantjs herein preferred Miscsilaneous Civi! Appeai No.5/2007. The loweri appeliate Court also agreed wJth the finding recorded by the learned Civil iJudge Class-1, Janjgir and dismissed the appeal. In this revision, theorderdatecj 27-10-2007 passed by the iind Addjtlonal District Judge (F.T.C.), Jahjgir in MiscelEaneous CivilAppealNo.5/2007isunderchalienge. (6) Shri Rajeev Shrivastava, learned counsel for the applicants has argued that the Courts beiow have committed jurisdictional error in deciding the question of grant of succession certificate jn favour of non- appljcant No.2 without there being a probate in his favour. In support of the argument, learned counsel for the appiicants has relied on Vidhayaram @ Brajeshkiimar Damodarprasad vs. DevlaIMOoIehand!, 1981 IVIPU 448 and Smfc Samtishtha Devi Surve and othef^vs. Lal Saheb Su/ve ancf off»er3,AiR 1996 MP 13. :"Y- I!; :s ' w, (7) Having considered the submission, 1 have perused the order passed bytheCivit Judge Class-l in Miscellaneous Civil Case No.20/1999 as also the impugned order passed by the ilnd Additional District Judge in MiscellaneousCivilAppeal No.5/20Q7, ^. y (8) Sections 57 and 21 3 of the Act are as under: "57. Application of certain provisipns of Part to a classof Wills made by Hindus, etc. - The provisions of this Part whjch are set out in Schedule lil shali, subject to the restrictions and modifications specified therein, apply- (a) to atl Wiils and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Govemor of Bengai or within the local iimits ofthe brdinary originai civii jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) toali suchWillsandcodiciis madeoutside those territories and limits so far i as relates to immovabie property situate within those temtories or limits; and (c) to all Wiiis and codicils made by any Hindu, Buddhist, Sikh or Jaina on or afterthe first day of January, 1927, to which those provisions are not sppiied by clauses (a) and (b): Provided that marriageshail not revoke any such Wii! or codicii," "213. .Rlght as executor or legatee when established. - (1) No right as executor or iegatee can be estabitehed in any Court of Justice, unless a Court of competent jurisdlction in India has granted probate of the Wili under which the rlght is claimed, or has granted Jetters^f ^ministmtion with the W an authenticated cobV of the Wiii annexed. .1 1, - ^ "• .^' (2) This section shail not apply in th^^^^c^^^^ made by Mul'iammadans or Indian Christians, and shall onlyappiy- (i) in the case of Wiiis made by any Hindu, Buddhist; Sikh or Jaina where such Wills are Qfthe ciasses specified in qlauses (a) and (b) of section 57; and; (ii) in the case of Wilis made by any Parsi dSying, after the commencement of the indiart Succession (Amendmenf) Act, 1962 (16 of 1962), where,such Wills are made within the local iimits of the ordinary origlnai civil jurisdlction of the High Courts at CaScutta, Madras and Bombay, and where such Wil!s are macle outside those limits, in so far as ! they reiate to immoveable property situ&ted within those limits." i (8) The case law cited bythe ieamect counsel forthe applicantsdoes not helptheappiicantsinanymanner. Apiain reading ofSection 213(2)(i) ofthe Act ieaves no room for anydoubtthat itappiies only to a case fatiing under ciauses (a) and (b) of Section57 of the Act whereas the pres.ent case fa!!s ynderciause (c) of Section 57 ofthe Act Accordingly, as held in Vidhayaram @ Brajeshkumar Damociasprasad vs. Devlal ll^ootefta^d (supra), a person can, in case of a Wiliwhichdoes not fali within ciause (a) pr (b) of Section 57 of the Act, estabiish his right as a iegatee in any Courtwithout obtainlng a probate. Wherethe Wiit has been duly proved and is found to be the last Will of the testator, obtaining probate is optional. . v .'• ^ ' ' 1' ' (• ,.: . - . . ..! : ! " :' (10) The proceedings in Part X of the Act reiating to successton certificates are of summary nature and a succession certificate may be illN-'JL ^^s® 'i^^M granted in favour of a person who appears to the Court as having prima fac/e the best title thereto. In the present case, non-appjicant No,2 has nof oniy filed the Wili executed by Rampyari on 05-09-1998 before the trial Court, butinsuppbrtthereof.hasalsoexamjnedtheiattesting^w one Advocate Shri Ashpk Dixit. 1 have perused the;certified copies of the statements of witnesses filed with this civil revision.i The evidence led by non-applicant No.2 pn'ma facte constitutes legal proof of the factum of execution of the Will by Smt. Rampyari in favour df non-applicant No.2, who has rightly been heid as prfma facf'e having the best title to a succession certificate for the money left by Smt. Rainpyari. (11) i am of the considered opinionthatno illegajity or jurisdictional error has been committed bythe Courts below In granting succession certificate in favour of non-applicant No.2. in view of the concurrent finding of fact and the scope of enquiry on an appijcation for grant of succession certificate under Section 372 of the Act, being of la summary nature, no interference is catled for in 'exercise of revisionai jurisdiction. Accordingly, thecivilrevisionisdismissedatthestageofadmission. (12) ConsequentSy, l .A.No.1 for stay also stands dismissed. Sd/- DilipRaosahebDeshmukh Judge w iGopat '"^,.. l' -•"^:^