IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 678 of 2009 alongwith CR No.91 of 2010 Date of decision: 7.12.2010 CMPMO No.678 of 2009 Ravinder Kumar …. Petitioner Versus Kundan Lal and another. ….. Respondents C.R No.91 of 2010 Ravinder Kumar …. Petitioner Versus Kundan Lal ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes For the petitioner: Mr.Anuj Nag, Advocate in both the petitions. For the respondents: Ms.Vidushi Sharma, Advocate for respondent No.1 in both the petitions. _____________________________________________ Deepak Gupta, J.(Oral) 1. These two petitions are being disposed of by a common judgment as virtually identical questions of fact and law are involved in these petitions. 2 CMPMO No.678 of 2009 2. By means of this petition, the petitioner has laid challenge to the order dated 31.12.2007 whereby succession certificate in respect of Kisan Vikas Patras and saving bank accounts of late Smt.Rukmani Devi, widow of Jagan Nath was granted in favour of Sh.Kundan Lal, respondent No.1. Admittedly, Kudan Lal was the nominee in the said Kisan Vikas Patras and saving bank accounts. 3. It would be pertinent to mention here that the petitioner Ravinder Kumar also filed proceedings in the Court of Civil Judge (Junior Division), Jawali for the grant of succession certificate in his favour qua the same Kisan Vikas Patras and saving bank accounts on the ground that Rukmani Devi had executed a Will in his favour. The contention of the petitioner was rejected and the succession certificate was granted in favour of Kundal Lal vide judgment dated 31.12.2007. The petitioner filed an appeal against the grant of succession certificate before the learned District Judge, Kangra at Dharmashala which appeal was withdrawn on 23.11.2008. Thereafter, the petitioner kept silent for almost one year and filed this 3 petition in the year 2009 and the main ground of challenge is that the learned Civil Judge (Junior Division) had no jurisdiction to grant such a certificate. 4. At the outset, it may be stated that after withdrawal of the appeal, the petitioner cannot now file this petition and the petition itself is not maintainable. Secondly, the petitioner having himself applied for grant of succession certificate to the very same Civil Judge cannot, after the decision has gone against him, claim that the Civil Judge had no jurisdiction to grant succession certificate in favour of respondent No.1. No party can approbate or reprobate at the same time. The petitioner on the one hand, filed a petition for the grant of succession certificate before the Civil Judge (Junior Division), Jawali and after the same was rejected now wants to take up the plea that the Civil Judge had no jurisdiction to grant the same. In view of the fact that even the appeal was withdrawn, this plea cannot be permitted to be raised. 5. Furthermore, I find that vide notification dated 21.2.1990, all Subordinate Judges 1st Class in the State were empowered to exercise functions of District 4 Judge under Part ‘X’ of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Act’). The Government is authorized to issue such a certificate under Section 388 of the Act and once a subordinate court is vested with the powers of the District Judge, appeal lies to the District Judge. 6. Sh.Anuj Nag, learned counsel for the petitioner contends that a Subordinate Judge 1st Class cannot be equated with Civil judge (Junior Division) and can only be equated with Civil Judge (Senior Division). This contention has to be rejected. A Civil Judge (Junior Division) exercises all the powers which were exercised by the Subordinate Judge 1st Class and, therefore, it cannot be said that Civil Judges (Junior Divisions) are not Subordinate Judges 1st Class. Therefore, this petition is rejected. C.R No.91 of 2010 7. The respondent herein (hereinafter referred to as the ‘plaintiff’) filed a suit against the present petitioner (hereinafter referred to as the ‘defendant’) for partition of the immoveable property. According to the plaintiff, he and the defendant had equal share in the property of Rukmani Devi. However, the 5 defendant claimed that in view of the Will executed by Rukmani Devi, he was entitled to the entire immoveable property. Issues were framed and one of the issues framed was issue No.4 which reads as follows:- “Whether the deceased Rukmani Devi has executed a Will in favour of respondent being her legal heirs bequeathing all her movable and immovable property, as alleged?” 8. Later an application was filed by the plaintiff under Order 14 Rule 5 (2) of the Civil Procedure Code praying that this issue which had been framed on 21.12.2004 be struck off since it did not arise. It appears that the main contention was that since in proceedings under Section 372 of the Succession Act, the learned Civil Judge had held that the Will had not been proved in accordance with law, it was prayed that there is no need to frame this issue. The learned Trial Court accepted this prayer and held that since the Will has been held to be invalid in proceedings under Section 372, there is no need to decide this issue afresh. In my view, the order of the learned Trial Court is totally incorrect. No doubt, in proceedings under Section 372 of the Act, some findings have 6 been given with regard to the Will. What is the effect of these findings will have to be seen at the time of hearing of arguments. A Will has been set up by the defendant and he is entitled to lead evidence to prove the same. The plaintiff can also lead evidence to discredit the Will, including placing on record the order of the Civil Judge (Junior Division) to show that since the Will has been held to be invalid, the said order would act as res judicata. These questions have to be decided by the learned Trial Court and can only be decided after an issue is framed and evidence on the issue discussed. In fact, issue as pointed out above was framed as to whether the Will was valid or not. Under Order 14 Rule 5(2), CPC, the Court may before passing a decree strike off that issue which appears to be wrongly framed. This issue has not been wrongly framed and arises out of the pleadings. Therefore, it could not have been struck off. To this extent, the order of the learned Trial Court is wholly incorrect and it is accordingly set aside. It is however, made clear that this Court has not expressed any opinion as to what is the effect of the order of the learned Civil Judge passed in proceedings under 7 Section 372 of the Succession Act holding the Will to be invalid. This, the learned Trial Court must decide after hearing the parties. Both the petitions are disposed of in the aforesaid terms. No order as to costs. December 7, 2010 ( Deepak Gupta ) (m) Judge