IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 27 of 2004 Bhagat Ram …….Defendant/Appellant. Versus Smt. Basanti Devi and others …Respondents. Sri Rakesh Thapliyal, Advocate present for the defendant/appellant. Sri G.D. Joshi, Advocate present for respondent no. 12. Hon’ble Sudhanshu Dhulia, J. (oral) This first appeal was dismissed for non prosecution vide order dated 16.11.2007. Now, a restoration/recall application has been filed by the appellant for recalling the order dated 16.11.2007 along with an application for condoning the delay in filing the restoration/recall application. Reasons assigned for delay in filing the restoration/recall application seem to be bona fide. Delay condonation application (CLMA 10951/2010) is allowed. Delay is condoned. Reasons shown in the restoration/recall application for recalling the order dated 16.11.2007 appear to be bona fide. Restoration/recall application (MCC No. 1089/2010) is allowed. Order dated 16.11.2007 passed by this Court is recalled. First appeal is restored to its original number. Heard Sri Rakesh Thapliyal, Advocate for the defendant/appellant and Sri G.D. Joshi, Advocate for respondent no. 2. This appeal has been filed under Section 384 of Indian Succession Act, 1925 challenging the order of the Additional District Judge/Fast Track Court, Tehri Garhwal dated 24.2.2004 passed under Section 372 of the Indian Succession Act, 1925, by which application of 2 the defendant/appellant for grant of succession certificate has been rejected. Brief facts of the case are as follows :- The defendant/appellant before this Court claims to be a successor to “Madu”. “Madu” is the maternal grandfather of the defendant/appellant. The pedigree chart supplied to this Court by the defendant/appellant is as follows :- Sukhru Madu Pooran Chanchru Gobru Sukhwaru (died on (died on (died on (died on (died on 2.5.1940) 14.1.1941) 29.10.1944 26.11.1943 31.1.1954) Asha Devi (Dashmi Devi) (D) (D) (Phool Das) (Ekal Das) (Dev Das) (Raju) (Surendra)(Virendra) (Ratan Das) (S) (S) (S) (died) Bhagat Ram Basanti Devi (Chandan Das) (Mangal Das) (Kalam Das) (son) (daughter) (Munna) (Moli) (Chatangi Das) (Kaursha Das) (Kamla Devi) (died) (died) (D) (D) (D) (Jagdamba) (died in 1986) (wife is Laxmi Devi) (Anita) (Sangeeta) (Suneeta) (D) (D) (D) On the basis of the application moved by the defendant/appellant under Section 372 of Indian Succession Act, in which he had only impleaded his mother as opposite party, the court granted succession 3 certificate to the applicant i.e. the appellant vide order dated 9.2.1995. Consequently thereafter this order dated 9.2.1995 was challenged by Kausa Devi and Kumla Devi, daughters of late Shukwaru, who was brother of “Madu” and pleaded before the Court that the defendant/appellant has obtained certificate by fraud and deliberately has not made them party. Power of the appellate court for revocation of certificate is given under Section 383 of Indian Succession Act, which reads as under :- “383. Revocation of certificate. – A certificate granted under this Part may be revoked for any of the following causes, namely :- (a) that the proceedings to obtain the certificate were defective in substance; (b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; (c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently; (d) that the certificate has become useless and inoperative through circumstances; (e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.” 4 Thereafter the lower appellate court recorded the findings that the petitioner had wrongly not impleaded Kausa Devi and Kumla Devi as party and the succession certificate has been obtained by misrepresentation of fact and the succession certificate was cancelled. However, the court did not proceed any further in the matter but specifically directed that the defendant/appellant shall make Kausa Devi and Kumla Devi a party in the suit and suit shall proceed afresh in the court. Consequently a fresh proceeding for obtaining succession certificate started. However, this application was rejected by the learned Additional Judge/Fast Track Court, Tehri Garhwal by order dated 24.2.2004 by saying that the petitioner is not the only successor to the property and there are other successors as well and therefore he cannot be given succession certificate. The reasoning given by the court below is totally perverse inasmuch as first of all findings should be given as to whether the defendant/appellant is successor or not to the property and if he is, than to what extent. These findings have not been given by the court below. Therefore the order dated 24.2.2004 passed by the court below is set aside. The matter is remanded to the Additional District Judge, Tehri Garhwal to re-hear the matter in accordance with law. Liberty is given to the defendants to move application under Section 372 of Indian Succession Act, 1925 for grant of succession certificate in their favour, if they so wishes. The court below shall decide the matter as expeditiously as possible. First Appeal is accordingly allowed. Order dated 24.2.2004 passed by Additional District Judge/Fast Track Court, Tehri Garhwal is set aside. Matter is 5 remanded to the court below to decide afresh in the light of the observations made above. No order as to costs. (Sudhanshu Dhulia, J.) 4.1.2011 Avneet