IN THE HIGH COURT OF JUDICATURE AT PATNA M. A. No.512 of 2010 1. RAM CHANDRA SHASTRI SON OF LATE NATHUNI GIRI, 2. INDRAJIT GIRI SON OF LATE SHAMBHU GIRI, BOTH RESIDENTS OF VILLAGE RAGHOPUR CHATURANG, POST OFFICE BISHNUPUR RAJKHAND, VIA BIDDUPUR, POLICE STATION BIDDUPUR, DISTRICT VAISHALI, …………Appellants Versus 1. MOST. RITA DEVI WIDOW OF LATE RAM JANAM GIRI, 2. SUNITA KUMARI, 3. SUCHITA KUMARI MINOR DAUGHTERS OF LATE RAM JANAM GIRI, 4. ABHISHEK KUMAR MINOR SON OF LATE RAM JANAM GIRI, 5. SITA KUMARI MINOR DAUGHTER OF LATE RAM JANAM GIRI, nos. 1 to 5 are residents of village Raghopur Chaturang, Post Office Bishnupur Rajkhand, Via Biddupur, Police Station Biddupur, District-Viashali. minors under the guardianship of Most. Rita Devi mother and natural guardian with whom she has no adverse interest. …………….(PETITIONERS)………… RESPONDENTS 1ST PARTY, 6. VAKIL GIRI SON OF LATE RAJENDRA GIRI, NO. 6 IS RESIDENT OF VILLAGE MOHAMMADPUR SAKRA, POLICE STATION BIBHUTIPUR, DISTRICT SAMASTIPUR, …………(OPPOSITE PARTY)……………….RESPONDENT 2ND PARTY, ----------- /5/ 29.10.2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order dated 20.05.2010 passed by the District Judge Vaishali at Hajipur, in Succession Case NO. 10 of 2007 by which he has allowed the succession case of Rita Devi the wife of deceased Ram Janam Giri along with minor children, as the legal heir. 3. Rita Devi the wife of deceased 2 Ram Janam Giri filed a succession case on her behalf and on behalf of her minor children for grant of succession certificate to withdraw Rs. 3,48,943 lying in different bank in the name of her husband deceased Ram Janam Giri on death of her husband on ground that Ram Janam Giri died on 13.09.2005 leaving behind his widow and minor children. 4. The appellants filed application under Order 1 Rule 10 of the Civil Procedure Code for adding them as a party on ground that they are brother of deceased and gave genealogy that one Nathuni Giri had three sons and one daughter. The three sons were Rameshwar Giri, Ram Chandra Giri, Ram Janam Giri and one daughter Madan Devi and Madan Devi has a daughter Indrajit Giri and the property is joint no partition ever took place and the wife Rita Devi tried to poisoned and kill Ram Janam Giri and Ram Janam filed a divorce case against Rita Devi and even Ram Janam filed a complaint case against Rita Devi hence Rita Devi is 3 not entitled to inherit the property of Ram Janam Giri. 5. However, the petition under Order 1 Rule 10 of the Civil Procedure Code was dismissed by District Judge against which a Civil Revision bearing C.R. No. 1196/08 was preferred before the High Court but the Civil Revision was dismissed for default and then an M.J.C. Petition filed for restoration of Civil Revision which is still running in the list. 6. However, by the impugned order the Succession Case allowed by which the wife of late Ram Janam held to be entitled to succession certificate to withdraw the amount along with interest as mentioned on the foot of plaint. 7. The appellants though not party to succession case has preferred this appeal challenging the order of succession on the ground, that if they could have succeeded in Civil Revision to be added as a party they could have contested and they being the co-sharer no partition had ever 4 taken place and she has murdered her husband she is not entitled to interest the same. It has further been contended that a person not party to a suit can prefer appeal with the leave of the appellate Court and the leave should be granted if he is prejudicially affected by the judgment, and has relied upon the decision reported in A.I.R. 1971 S.C. 374,(Smt. Jatan Kanwar Golcha Vrs. M/s Golcha Properties Private ltd. 8. Learned counsel for the respondents, however, contended that in a succession case if the party aggrieved by the order of succession granted by District Judge then the proper procedure for the party to file a revocation case under Section 383 of the Indian Succession Act and no appeal is maintainable. It is further contended that the appellants’ claim that they are joint but there has not been any joint property and there is no case that said property earned out of joint nucleus or joint effort, and further the 5 wife or minor children of Ram Janam Giri are Class-I heir and can well succeed for succession in preference to brother and Bhagina of Ram Janam Giri who are Class II heir. 9. However, on respective submission of the parties, the question for consideration is whether the appeal is maintainable, and further if the appellant can succeed for succession in preference to wife and daughter. 10. However, the Succession Case No. 10 of 2007 was filed by the respondent wife and daughters and sons of deceased Ram Janam Giri. Admittedly the appellants were not party in succession case. 11. However there is specific form, hence the question is about the maintainability of the appellant as being appellant was not the party. 12. The learned counsel for the appellant has relied upon the decisions reported in A.I.R. 1971 Supreme Court 374 (Smt. Jatan Kanwar Golcha Vrs. M/s Golcha 6 Properties Private Ltd.), A.I.R. 1918 (Patna) 364 (Inderdeo Narain Singh Vrs. Gouri Shanker), A.I.R. 1949 (Bombay) 141 (The Province of Bombay Vrs. Western India Automobile Association) and A.I.R. 1976 (Allahbad-Andhra Pradesh) 121 (State of U.P. Vrs. Smt. Ram Sri and Anr.), for the proposition that the person not party to suit may prefer an appeal with the leave of the appellate Court and the leave should be granted if he would be prejudicially affected by the judgment. 13. However an appeal can be maintainable by person interested but the grounds taken in appeal for setting aside the impugned order that Nathuni Giri and his sons were joint and no partition took place and Rita Devi tried to poisoned and killed deceased Ram Janam Giri the Court below allowed the Succession certificate pending in the High Court. 14. However, the learned counsel for the respondents submits that the question concerns with the issuing of 7 succession certificate admittedly respondents Rita Devi and her children and the wife sons and daughter of the deceased Ram Janam Giri are Class-I heir and the appellants are the brother and Bhagina, of Ram Janam Giri are Class-II heirs. 15. Hence, wife/widow and son being class-I heir can well succeed in preference to the brother and Bhagina who are class II heir. However, the question for consideration is whether the appellant, who are the brother and Bhagina can have a right of succession in preference to the wife and the children of Ram Janam Giri. 16. There is nothing to show that there is unity of title as properties money in account in the name of Ram Janam Ojha and nothing to show that it was joint family. However, the ground taken in appeal the respondent is not entitled to succession certificate as she had poisoned or murdered her husband and is no ground to disclaim the petition for grant of succession of certificate and so far the 8 ground that appellants were the brother of deceased Ram Janam Giri and both have sons of Nathuni Giri and there was no partition but no assertion about the joint nucleus or how the money in account of Ram Janam Giri was joint. However, the petition under order 1 rule 10 of the Civil Procedure Code had been rejected. 17. On an application for grant of certificate the Court is required to make some enquiry about right of the applicant to the certificate and the enquiry is a summary enquiry and enquiry under this Section is not conclusive cannot operate res judicata. The act not intended to afford to litigant an opportunity of litigating question of title to property but Court has to ascertain the right of the applicant to the certificate. 18. However, the succession Court has not decided the succession irrespective of the right of the parties and having the admitted position regarding the issue of succession certificate, the claim of the 9 wife and children and they succeed in preference to the brother and Bhagina of the deceased and hence there is nothing in the interest of the appellants which is adversely affected. 19. The judgments cited by the learned counsel for the appellants as mentioned above, are none of the cases concern with the succession case. However the learned counsel for the respondent has relied upon the decision reported in A.I.R. 1961 Manipur at page 62, where it has been held that when in a succession “A” and “B” is not party to the proceeding then the proper remedy for “B” is applied for revocation of the certificate under Section 3/3 of the Succession Act and application for fresh certificate in his favour by way of appeal under Section 384 of the Act, and hence if the appellant wants to challenge the order granting a certificate and he is not a party to the proceeding he can only do by filing a petition for revocation. Hence, having regard to the fact and 10 circumstance of this case, since the petitioner not prejudicially affect and proper remedy to file revocation case, hence I do not find any merit in the case. This Miscellaneous Appeal is hereby dismissed. Safik/Cp:2 (Gopal Prasad, J.)