1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISC.PETITION NO.23 OF 2009 IN PETITION NO.584 OF 2008 Vimal M. Rajani .. Petitioner versus Vinod R. Rajani .. Respondent Mr.Jitendra Shukla i/by G.H.Shukla & Company for the petitioner. Ms.Poonam Mital for the respondent. CORAM : A.S.OKA, J. DATE : 11th December 2009. JUDGMENT: . I have heard the submissions of the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. By this petition a prayer is made for revocation of succession certificate issued by this Court by order dated 11th August 2008 in favour of the respondent. 2. The respondent herein through his constituted attorney one Jaiprakash Mulji Joshi filed Petition No.584 of 2008 for grant of succession certificate under section 370 of the Indian Succession Act, 1925. The succession certificate was sought in respect of one share of M/s.Sindhu Resettlement Corporation Limited at Adipur held by deceased Ramchand Narasumal Rajani. In the said petition it was stated that the respondent 2 Vinod was the only next- of-kin of the deceased. It was stated that the wife of the deceased predeceased him and the deceased left no issue except the respondent Vinod. 3. The present petition is filed by the Vimal, another son of deceased Ramchand . It is stated in the petition that the deceased left behind five sons and one daughter as his legal representatives. It is pointed out that these facts were suppressed in the petition filed by the respondent. It is submitted that material facts have been suppressed and in fact the respondent has played fraud upon the Court. The petitioner stated that he was not served with notice or citation of the application for succession certificate made by the respondent. The case is that the succession certificate has been obtained by suppressing material facts by playing fraud and misrepresentation. It is pointed out that immediately after obtaining succession certificate, the share has been transferred to one Jatin Joshi for consideration of Rs.1,00,000/-. It is pointed out that by virtue of holding a share in Sindhu Resettlement Corporation Ltd., the deceased was entitled to a plot of land out of the property which was allotted to the said company by the Government of India. 4. The learned counsel appearing for the petitioner pointed out the material averments in the petition. He submitted that in fact the share in respect of which the succession certificate was sought cannot be termed as a debt or security. He submitted that the constituted attorney of the 3 respondent has filed several such applications for succession certificate on behalf of the heirs of the deceased persons who were holding the shares of the same company. 5. The respondent has filed a reply. The respondent was personally present in the Court on the last date. The learned counsel appearing for the respondent invited my attention to what is stated in the reply and submitted that if at all somebody is to be blamed, he should be the constituted attorney of the respondent. She pointed out that the purchaser of the share Mr.Jatin Joshi had requested the respondent to issue power of attorney in the name of the said constituted attorney and accordingly a power of attorney was issued. The learned counsel appearing for the respondent stated on instructions of the respondent that he is willing to deposit the amount of Rs.1,00,000/- which he has received from the purchaser by the sale of share and the respondent is willing to deposit a sum of Rs.50,000/- by way of costs. Accordingly, demand drafts in the said amounts drawn in favour of the Prothonotary and Senior Master are brought by the learned counsel appearing for the respondent. 6. I have carefully considered the submissions. Under Rule 377 of the Bombay High Court (Original Side) Rules , an application for succession certificate is required to be made by a petition. The petition is required to be filed in Form 110. In clause 3 of the Form No.110, the petitioner is required to disclose whether the deceased died intestate. If the deceased has made 4 Will, a copy of the Will is required to be produced. A statement is required to be made in the petition incorporating names of the heirs and the next -of-kin of the deceased alongwith their respective addresses. The petition is required to be affirmed as provided in the said Form. Apart from the aforesaid averments, Rule 377 requires petitioner’s oath to be filed in Form 111. The said oath is in the form of an undertaking that the petitioner will truly administer debts and securities in the succession certificate and will render true accounts thereof to this Court within a period of one year from the date of grant. 7. In the facts of the case, it is an admitted position that apart from the respondent there are four sons of the deceased and one daughter. All this has been accepted in the reply filed by the respondent. Moreover, the respondent in his reply has come out with the case that there was a Will executed by the deceased. In the application filed by the respondent for grant of succession certificate it is alleged that the deceased died intestate and the respondent is the only heir of the deceased. It must be stated here that perusal of the record of the original petition shows that the petition has been affirmed by the constituted attorney by stating that whatever was stated in the petition was true to his own knowledge. In fact the petitioner’s oath is also signed by the constituted attorney. The petitioner’s oath in Form No.112 constitutes an undertaking by the petitioner. In absence of any specific clause in the power of attorney authorising the attorney to file oath in Form 112 , the petitioner’s oath ought to have been signed by the 5 respondent himself. The registry will have to carefully scrutinize such applications for ensuring that the petitioner’s oath is signed by the petitioner himself. This shows that even the petition was not properly scrutinized by the office. 8. It goes without saying that this is a gross case of suppression of material facts. The petition filed by the respondent contains patently false statements. The respondent has pleaded that the entire fault is of his constituted attorney. Now the respondent cannot shift the entire burden on the constituted attorney. Ultimately, the constituted attorney has acted on behalf of the respondent. In fact this was a case where a serious action is called for against the respondent. But on his own he has volunteered to deposit a sum Rs.1,00,000/- in this Court which is the price of the share sold on the basis of the succession certificate and has also volunteered to pay costs of Rs.50,000/-. Only because of this subsequent conduct of the respondent, I am refraining myself from taking any action against the respondent. 9. I am not examining question whether the share in respect of which succession certificate was claimed can be said to be a debt or security within the meaning of section 370 of the said Act of 1925. The reason is that the petition for grant of succession certificate will have to be restored. While deciding the said petition, the question of taking appropriate action against the constituted attorney of the respondent will have to be considered. 6 10. The learned counsel appearing for the petitioner during the course of submissions has stated that in case of other deceased persons who were holding shares in the Sindhu Resettlement Corporation Ltd or the constituted attorney of the heirs have filed similar petitions under section 370 of said Act of 1925. The learned counsel has agreed to submit a list of such pending petitions and disposed of petitions. By separate administrative order, a direction has been issued to keep all such matters on board on next Friday i.e 18th December 2009. 11. Out of the costs amount of Rs.50,000/- deposited by the respondent, a sum of Rs.30,000/- shall be paid over to the petitioner and remaining amount of Rs.20,000/- should be paid to Maharashtra State Legal Services Authority. The sum of Rs.1,00,000/- deposited by the respondent will have to be invested till the restored petition is heard. Appropriate order regarding withdrawal of the said amount with interest accrued thereon will be passed at the time of disposal of the said petition. 12. Hence, I pass the following order: : O R D E R : (a) The petition is made absolute in terms of prayer clause (a). (b) The demand drafts in the sum of Rs.1,00,000/- and Rs.50,000/- respectively have been already deposited by the learned counsel appearing for the respondent with the Prothonotary and Senior Master of this Court. 7 (c) Out of the costs amount of Rs.50,000/-, a sum of Rs.30,000/- shall be paid over to the petitioner. Remaining amount of Rs.20,000/- shall be paid to the Maharashtra State Legal Services Authority. (d) The Petition No.584 of 2008 is restored which shall be placed on board on 22nd January 2010. (e) The registry will issue notice to the constituted attorney of the petitioner in Petition No.584 of 2008 of the date fixed calling upon constituted attorney to personally remain present in this Court. The petitioner in the said petition will also remain personally present in this Court on that day. (f) A sum of Rs.1,00,000/- deposited by the respondent in the present petition shall be invested in fixed deposit with any nationalised bank. The order regarding disbursement/withdrawal of the said amount will be passed while finally deciding Petition No.584 of 2008. (g) The respondent is directed to furnish the correct address of his constituted attorney to the registry within a period of one week from today. (A.S.OKA,J)