(1) SA. 165.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 165 OF 2009 Honaji S/o Hanumantrao Adkine, Aged : 67 years, Occu.: Agri., R/o Basmath, Dist. Hingoli .. Appellant Versus 1] Parvatibai w/o Shyamrao Adkine, Aged 44 years, Occu.: Household, R/o Station Road, Parbhani, Tq. and Dist. Parbhani 2] Shamla w/o Shyamrao Adkine, Aged : 32 years, Occu.: Household, R/o Station Road, Parbhani, Tq. and Dist. Parbhani 3] Sheetal d/o Shyamrao Adkine, Aged minor, under guardianship of real mother Shamla w/o Shyamrao Adkine (Resp.No.2) .. Respondents Mr. S.B. Ghatol Patil, Advocate for the Appellant Mr. S.V. Munde, Advocate for the Respondent CORAM : A.V. NIRGUDE, J. DATED : 20TH JULY, 2009 ORAL ORDER:- 1] The second appeal is challenging the concurrent findings of the two lower Courts, granting succession certificate jointly to the respondents under section 372 of the Indian (2) SA. 165.2009 Succession Act in respect of the debt due to one deceased Shyamrao. 2] The appellant is brother of Shyamrao whereas, the respondents nos. 1 and 2 are wives of Shyamrao and the respondent no.3 is daughter of Shyamrao from the respondent no.2. Deceased Shyamrao was a Lawyer at Parbhani and had married to the respondent no.1 prior to 1980. But he married to respondent no.2 rather belatedly, in 1990. The respondent no.3 was borne to such a wedlock. The deceased had kept in various banks, certain amounts and had purchased some bonds. The total value of the same was about Rs.1,36,000/-. Since Shyamrao did not name a person to be the nominee of these debts, the respondents jointly made an application for issuance of a succession certificate. The appellant opposed the application, on the basis that the respondents were not related to Shyamrao and he alone is the successor as his brother. Both the Courts below gave a concurrent finding that the respondents had established their relationship with Shyamrao and passed the impugned orders. 3] The learned Advocate for the appellant, raised the following three objections:- . Firstly that the respondent no.2 was not a legitimate wife and therefore, was not entitled to (3) SA. 165.2009 the joint succession certificate. He also argued that section 372 which is in Part “X” of the Indian Succession Act, 1925 does not apply to Hindus who died intestate. Shri Ghatol Patil argued that since the Courts below treated the application which was made under section 372 of the Indian Succession Act as a Special Suit, they committed grave error and so, in order to correct the same, the matter deserves to be remanded back to the lower Court. 4] All the three submissions mentioned above are not giving rise to any substantive question of law. As said above, the question of fact has been answered in favour of the respondents and so, there is no question of examining the correctness of the same. The argument that part “X” of the Indian Succession Act does not apply to Hindus, has not been further elaborated by Shri Ghatol Patil. He simply made this submission on the basis of certain opinion expressed by certain author of a Book on Indian Succession Act. He could not show any judgment to that effect. Part “X” of the Act is not specifically made inapplicable to the Hindus, who died intestate. So, this submission is also devoid of merits. Request for remanding the case back, is also futile. Because although, the application was treated as a suit, the appellant was given sufficient opportunities to oppose the application. Even in the Appeal, the appellant was present (4) SA. 165.2009 before the lower appellate Court. He was given sufficient opportunities to make his submission. The case was treated as a civil suit and to both the parties, elaborate opportunities were given. So no prejudice was caused to the appellant. This was in fact not warranted, in view of the procedure laid down for deciding such applications in section 373 of the Indian Succession Act. This provision provides that the Court should decide as to who amongst the parties has “prima facie” best title to the debt of the deceased. 5] Mr. Ghatol Patil, lastly suggested to me that I should specifically mention in this order that the appellant would have a liberty to file a suit in respect of the debt of the deceased. I am not inclined to say so. It might affect the contentions of the parties in future. 6] The Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp/20july9/SA165.09