IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 MFA.No. 195 of 2011 --------------------------- SOP.9/2010 of SUB COURT,KOCHI .................... APPELLANT(S): PETITIONERS: ------------------------------------------- 1. P.C.ANTONY, S/O.LATE P.A.CHOCHI, AGED 54 YEARS, PEEDIAKKAL HOUSE, NEAR KOYA BAZZAR, KUMBALANGI P.O., KOCHI-682 007. 2. JOSEPH JEBIN, S/O.P.C.ANTONY AGED 30 YEARS, PEEDIAKKAL HOUSE, NEAR KOYA BAZZAR, KUMBALANGI P.O., KOCHI-682 007. BY ADV. SRI.SHAJI P.CHALY SRI.S.GOPAKUMAR SMT.S.K.SREEKALA RESPONDENT(S): ------------------------- NIL THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & A. M. SHAFFIQUE, JJ. ------------------------------------------------------- M.F.A.No.195 of 2011 ----------------------------------------- Dated, this the 8th day of December, 2011 J U D G M E N T K.M.Joseph, J. Appellants are the petitioners in S.O.P.No.9/2010 on the file of the Sub Court, Kochi. They are father and son. Briefly put, the case of the appellants is as follows: Appellants are the legal heirs of late Joby.P.Antony who died on 1.10.2009 at Valara in Adimali Grama Panchayat in Idukki District consequent to an accident. The above said person while his way back home from Shrine Basilica, Velankanny the car in which he was travelling has fallen down to the Deviyar River at 10th Mile, Adimali. At the time of accident Ist appellant, his wife Gracy Antony, their elder son Joby Antony, his wife Manju Joby and their one year old girl child Diya Grace were in the car. Only the Ist appellant has survived in the accident. The river in which the car drowned was having heavy flow and at the first instance only the dead bodies of late Gracy Antony and Manju Joby were traced out. Later on 30.1.2010 dead body of late Joby Antony was recovered from a far off place from the place of accident in MFA 195/2011 -2- Deviyar River and it was confirmed by DNA test that the parts of the dead body recovered is of late Joby P.Antony. As per the legal heirship certificate issued by the Tahasildar, Kochi name of appellants and Diya Grace are shown as the legal heirs. It is stated that body of Diya Grace, daughter of late Joby P.Antony could not be traced out and therefore her name is also shown in the legal heirship certificate issued by the Tahasildar as missing. The dead body of late Joby.P.Antony could only be traced out after a period of 4 months and it can never be presumed that the little child of one year would have survived, it is stated. Appellants being the only legal heirs entitled to succeed to the estate of the deceased approached the court below for succession certificate in the name of Ist appellant. The Court below dismissed the original petition. The reason given is as follows: “It is submitted by petitioners that Diya Grace is missing. Absolutely there is no evidence before Court to show that Diya Grace is no more. It is also not stated that Diya Grace died. Diya Grace is not arrayed as petitioner or respondent in this application. Therefore, it is found that petitioners not included the legal heirs of deceased in the party array. Petitioners not stated how they became the sole legal heir of deceased in case there is no evidence to show that Diya Grace is no more. Therefore, I found that MFA 195/2011 -3- the claim of plaintiffs that they are the sole legal heirs of deceased is found not believable. If Diya Grace is alive, how the petitioners became the legal heirs of deceased and how they became entitled for the amount due to the deceased is not pleaded or proved by the petitioners. From the documents produced from the side of petitioners it is found that the deceased has the policies in his name at the time of his death. There is no evidence to show that he executed any document with respect to the property during his life time. From the death certificate, it is revealed that Joby Antony died on 01.10.2009. From the available evidence I found that petitioners failed to prove that Diya Grace, the daughter of Joby.P.Antony and Manju Joby died.” 2. We called for the lower court records. Learned counsel for the appellants would submit that in a petition under Section 373 of the Indian Succession Act seeking succession certificate, the Court essentially does not decide the dispute relating to title. He further impressed upon us the facts which we have referred to. Diya who was admittedly the daughter of the son of the Ist appellant was one year old child. There is no dispute that there was such an accident. In fact, it is pointed out that even the body of the son Joby was recovered only after a period of two months. Ext.A2 legal heirship certificate issued by the Tahasildar also bears out the case of the appellants that the MFA 195/2011 -4- age of the child was one year. In Ext.A2 certificate it is noted that Diya Grace aged one is missing. Objection though called for did not yield any result and accordingly the Tahasildar has issued the certificate. Therefore, there is evidence before the court that the child was a minor, that too aged one year. Even the majors including the wife, son Joby and his wife perished in the tragic event. It will be too much to believe that the one year old daughter would have survived. Furthermore, as contended by the learned counsel for the appellants the Court does not decide the question of title. 3. In the circumstance of the case, we are of the view that the appeal is to be allowed, the impugned order to be set aside and the application filed by the appellants is to be allowed and we do so. The impugned order will stand set aside and the matter is sent back for issuance of the certificate. We direct in the special circumstance of this case that the Ist appellant shall maintain a Fixed Deposit for Rs.4 lakhs for a period of four years from out of the amount he will collect under the succession certificate and the appellants will produce an affidavit before the court giving details of the F.D in terms of the order of this Court MFA 195/2011 -5- within a period of three weeks of receipt of the amount on the strength of the certificate. Learned counsel for the appellants would also submit that in view of Section 42 of the Indian Succession Act the Ist appellant would be exclusively entitled. The court below will take note of this aspect while issuing the certificate. (K.M.JOSEPH) JUDGE. (A. M. SHAFFIQUE) JUDGE. MS