IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH OCTOBER 2011 / 25TH ASWINA 1933 CRP.No. 428 of 2009() --------------------- AGAINST THE ORDER DATED 08/01/2009 IN E.P.NO.80/2003 IN OS.306/1990 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S)PETITIONERS: ------------------------------------------- 1. PRASANNA.S.MENON, D/O.K.M.R.MENON, AGED 60 YEARS, 10E/2 USHUS, 2ND STREET, SRINAGAR, KAMATCHI AMMAN KOVIL, RAMANATHAPURAM, POST COIMBATORE, TAMIL NADU. 2. BALASUBRAMANIAN.V.R., S/O.K.M.R.MENON, AGED 53 YEARS, BINDU COTTAGE, ELAPPULLY, PALAKKAD DISTRICT. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT/RESPONDENT: ------------------------------------------ K.P.NARAYANAN NAIR, S/O.KUTTAN NAIR, AGED 64 YEARS, DEVTHA FABRICS, NEAR MARIAMMAN KOVIL, KASABA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.NIRMAL. S THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.428 of 2009 --------------------------------------- Dated this 17th day of October, 2011 ORDER This revision is in challenge of the order passed by learned Sub Judge, Kozhikode while executing the decree in O.S.No.306 of 1990. That decree was obtained by one G.K.Menon for recovery of money from the respondent/judgment debtor. The decree was passed on 07.02.1991. G.K.Menon died on 06.08.1991 issueless but, leaving behind his wife, Annalakshmi Amma. She died on 24.02.1992. It is stated that her sister, Sreedevi Amma executed a Will in favour of petitioners on 23.01.1995 whereby the decree was bequeathed to the petitioners. The said Sreedevi Amma died on 01.04.1996. Petitioners filed O.P.No.77 of 1994 under Sec.372 of the Indian Succession Act (for short, "the Succession Act”) for issue of a certificate of succession to execute the decree against the respondent as required under Sec.214 of the said Act. The succession Court passed Ext.P1, order pursuant to which Annexure-6, certificate was issued to the petitioners enabling them to collect the amount due under the decree. Pursuant to Annexure-6, certificate petitioners filed E.P.No.80 of 2003 C.R.P.No.428 of 2009 -: 2 :- against the respondent. As I am told, notice under Rule 22 of Order XXI of the Code of Civil Procedure (for short, "the Code”) was issued to the respondent. Respondent filed counter affidavit contending that petitioners, notwithstanding Annexure-6, certificate are not entitled to execute the decree since they are neither legal heirs of the deceased G.K.Menon or his wife, Annalakshmi Amma, nor entitled to execute the decree being an assignee to the decree. On that objection learned Sub Judge passed the impugned order and dismissed the execution petition. 2. Learned counsel for petitioners has contended that the decision of learned Sub Judge is patently erroneous in that learned Sub Judge has not taken into account the legal effect of Sec.381 of the Act. According to the learned counsel, the order in the Succession proceeding operate as a judgment in rem binding the respondent and hence respondent is bound to pay the amount due under the decree. It is also contended by learned counsel that petitioners, armed with Annexure-6, certificate is entitled to execute the decree as provided under Sec.214 of the Act and that respondent cannot resist execution. Learned counsel has placed reliance on the decisions in Ganga Prasad Vs. Mt.Saeedan and Ors. (AIR 1952 All 801), Smt.Sawarni Vs. Inder Kaur and Ors. (AIR 1996 SC 2823) and Madhvi Amma Bhawani Amma and Ors. Vs. Kanjikutty Pillai Meenakshi Pillai C.R.P.No.428 of 2009 -: 3 :- ((2000)6 SCC 301). 3. Per contra, it is argued by learned counsel for respondent that when notice under Rule 22 of Order XXI was issued to the respondent, he was entitled to object to the execution of the decree by the petitioners notwithstanding that petitioners obtained Annexure-6, certificate in their favour. It is contended by learned counsel that so far as petitioners are not the legal heirs of the decree holder or his wife who succeed to his estate nor there is any assignment of the decree in writing or by operation of law in favour of petitioners, they are not entitled to execute the decree. According to the learned counsel, it is a different matter if respondent pursuant to Annexure-6, certificate paid the amount would get a complete discharge of his liability under the decree. It is also contended by learned counsel that petitioners are not entitled to the decree amount even under the Will in question since Sreedevi Amma who is said to executed the Will was not the legal heir of G.K.Menon or, Annalakshmi Amma as the case may be. Learned counsel has placed reliance on Secs.15 to 17 of the Hindu Succession Act (for short, "the Succession Act”). 4. Under Rule 22 of Order XXI of the Code in the circumstances referred therein, before the executing court decides to execute the decree notice of proceeding is to be issued C.R.P.No.428 of 2009 -: 4 :- to the respondent. It is accordingly that notice was issued to the respondent and he filed a counter affidavit disputing the right of petitioners to execute the decree. PW1, who gave evidence in the executing court on behalf of petitioners admitted that the parties follow Marumakkathayam Law of Succession. Sec.17 of the Succession Act says that provisions of Secs.8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkathayam Law or Aliylasanthana Law if the Act had not been passed. Sec.15 states that the property of a female Hindu dying intestate shall devolve according to the rules set out in sec.16 in the order referred to in clauses (a) to (e). Clause (b) of sub sec.(2) states that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub Sec.(1) therein, but upon the heirs of the husband. 5. In the present case, it is admitted that G.K.Menon and his wife, Annalakshmi Amma died issueless. It is also not disputed that the property in question - decree for recovery of the amount belonged to G.K.Menon. Though, on his death the said property devolved on his wife, Annalakshmi Amma, on the death of Annalakshmi Amma since she had not left behind any son or C.R.P.No.428 of 2009 -: 5 :- daughter or children of any pre-deceased son or daughter, the property has to revert to the legal heirs of her deceased husband. If that be so, Sreedevi Amma who is only the sister of deceased Annalakshmi Amma could not have acquired title over the property and could not have executed the Will in question in favour of petitioners. Petitioners could not have acquired any right over the decree by virtue of the Will, allegedly executed by Sreedevi Amma. 6. Then the next question is whether on the face of Annexure-6, certificate of succession the above contentions can be urged by the respondent. Respondent was asked to state his objection to the execution of the decree as per notice under Rule 22 of Order XXI of the Code was served. Under Rule 16 of Order XXI where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it. 7. Under Rule 16 of Order XXI the decree can be executed by the transferee when there is an assignment of the decree in writing or by operation of law. Referring to the provisions of Sec.15 and 17 of the Succession Act I stated that the Sreedevi Amma, sister of Annalakshmi Amma was not a legal C.R.P.No.428 of 2009 -: 6 :- heir of Annalakshmi Amma in view of Sec.15(2)(b) of the Succession Act; she has not inherited any right under the decree from the said Annalakshmi Amma and on the other hand, right over the property reverted to the legal heirs of G.K.Menon, the deceased husband of Annalakshmi Amma. If that be so, petitioners do not qualify to come under Rule 15 of Order XXI of the Code. 8. Sec.381 of the Act deals with the effect of certificate of succession and states that subject to the provisions of Part X, the certificate of the District Judge shall, with respect to the debts and securities specified therein be conclusive as against persons owing such debts or liable on such securities and shall, notwithstanding any contravention of Sec.370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. 9. What emerges from Sec.381 is that the conclusive presumption stated therein is subject to the provisions of this Part X of the Act and it affords full indemnity to all such persons as regards payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted. C.R.P.No.428 of 2009 -: 7 :- 10. Sec.372 of the Act deals with the application for certificate and states that the application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code for the signing and verification of a plaint or on behalf of a plaintiff, and setting forth particulars referred to in clause (1) to (f). Clause (c) relates to the family or other near relatives of the deceased and their respective residences. Clause (d) deals with the right in which the petitioner claims. Sec.373 of the Act states that the 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 to be served on any person to whom, in the opinion of the Judge special notice of the application should be given. 11. Petitioners are neither the legal heirs of deceased G.K.Menon or Annalakshmi Amma nor could claim as a legatee, under Sreedevi Amma, sister of Annalakshmi Amma. If that be so, the near relatives of G.K.Menon who otherwise could have succeeded to his estate by virtue of Sec.15(2)(b) of the Succession Act were required to be mentioned in the application for certificate of succession filed by petitioners under Sec.372 of the Act. Admittedly, no such mention of near relatives of C.R.P.No.428 of 2009 -: 8 :- G.K.Menon was made in the application filed by the petitioners or any notice of the said application was issued to them. Instead, relatives of petitioner alone were made parties in the proceeding for grant of succession certificate. In other words, petitioner has suppressed from the notice of Court details of near relatives of deceased G.K.Menon who were entitled to get notice in the proceeding for the grant of succession certificate. In other words, the certificate obtained is without disclosing material particulars and mentioning the relatives of petitioners as near relatives of deceased G.K.Menon. That is not the certificate having conclusiveness and contemplated by Sec.381 of the Act. 12. I referred to the presumption under Sec.381 of the Code. I also stated that the said presumption is subject to the provisions of Part 10 in which Secs.372 and 373 come. In other words, the succession certificate referred to in Sec.381 of the Act is with reference to the certificate which has been issued in accordance with the provisions contained in part X of the Act. Here, as aforesaid, since there was no mention about the near relations of G.K.Menon who otherwise entitled to succeed to his estate and no notice of the proceeding was issued to them Annexure-6, certificate cannot assume conclusive character under Sec.381 of the Act. C.R.P.No.428 of 2009 -: 9 :- 13. I shall also refer to the decisions which learned counsel has referred to me regarding conclusive character of the presumption under Sec.381 of the Act. Learned counsel was not able to point out that those decisions were rendered in situations like the one on hand. Therefore, those decisions cannot apply to the facts of the case. 14. Learned counsel for petitioners contend that notwithstanding that so much time has elapsed after the succession court issued Annexure-6, certificate in favour of petitioners, none of the legal heirs of G.K.Menon who could otherwise claim to succeed to his estate has come forward to execute the decree. That however is a different matter. 15. Yet another argument which learned counsel advanced is that though, respondent attempted to examine the sister of G.K.Menon, that attempt was given up mid way. That also does not enable petitioners to execute the decree. 16. As aforesaid, it was within the right of respondent to pay the amount pursuant to the certificate of succession and claim total discharge or object to execution of the decree by the petitioners in answer to the notice served under Rule 22 of Order XXI of the Code. In the case on hand, respondent has opted for the latter - to challenge execution of the decree on the ground that petitioners have no right to do so. C.R.P.No.428 of 2009 -: 10 :- 17. In the light of what I have stated above the executing court was right in upholding the objection of respondent. This civil revision is dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-