1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.67 OF 2006 1. Smt. Gausiyabee w/o Syed Azgar age 42 years, occup. household, r/o Ukhalad, Taluka and Dist. Parbhani. 2. Asiyabegum d/o Syed Azgar, age 20 years, occup.education, Appellants/ resident of as above. ori. pltffs. versus 1. Smt. Sugrabee, alleged to be wife of Syed Azgar, age 42 years, occup.household, r/of Kadrabad Plot,Parbhani Taluka & District Parbhani 2. Mahatma Phule Education Society through its Secretary, Jintoor Road, Parbhani, Respondents/ Taluka and District Parbhani. ori.defts. ------ Shri S.S.Chillarge, Advocate, for the appellants. Shri A.S.Bayas, Advocate, for Respondent No.1. Shri H.B. Nandagavale, Advocate, holding for Shri V.T.Sakolkar, Advocate, for Respondent No.2. 2 Coram: P.R. Borkar, J. Date : August 18, 2009 ORAL JUDGMENT 01. This appeal from order is preferred by original plaintiffs, being aggrieved by the order of remand passed by the learned Additional District Judge, Parbhani, in Regular Civil Appeal No.54 of 2004 decided on 13.6.2006 arising out of the judgment and decree passed by the learned 2nd Civil Judge, Junior Division, Parbhani in Regular Civil Suit No.75 of 2001 decided on 26.2.2004. 02. It is the case of present appellant No.1 that she married to deceased Syed Azgar. Appellant No. 2 is the daughter born out of the said wedlock. Syed Azgar has expired. He was working as a peon with Mahatma Phule Education Society, Parbhani. She is entitled to service benefits, such as, gratuity, family pension etc. and that she is also entitled to appointment/service on compassionate ground. 03. Present respondent No.1 Sugrabai has filed Miscellaneous Application No.13 of 1996 for grant of Succession Certificate. That application was allowed by III Joint Civil Judge, Junior Division, Parbhani and accordingly Succession Certificate was issued in her name. Respondent No. 3 1 made out case that the deceased Syed Azgar had divorced appellant No.1 Gausiyabee and then married with her and as such, the appellants have no rights in the property of Syed Azgar and that she alone is entitled to retiral benefits. 04. The succession certificate issued in favour of Respondent No.1 Sugrabee was challenged and sought to be revoked by present appellants- plaintiffs by filing Miscellaneous Application No. 78 of 1996. That application was partly allowed only to the extent of LIC policy of the deceased. Being aggrieved by partial grant of said Miscellaneous Application No.78 of 1996, the appellants-plaintiffs filed Miscellaneous Civil Appeal No.15 of 1998 before the District Court, Parbhani which came to be dismissed on 4.7.2000. As against dismissal of said Miscellaneous Civil Appeal, present appellant Gausiyabee filed Writ Petition No.5165 of 2000. By order dated 8.1.2001, the Division Bench of this Court disposed of the said writ petition, by observing that so far as succession certificate issued in favour of present Respondent No.1 Sugrabee is concerned, there is an alternate remedy of suit available to the writ petitioner Gausiyabee (appellant in present appeal) and since her status as wife of the deceased is concerned, the same being in dispute, she can file suit or appropriate civil proceedings to get her status declared. 4 05. Thereafter, present appellants filed Regular Civil Suit No.75 of 2001 seeking declaration that they were the only legal heirs and successors of the deceased Syed Azar and therefore, they are entitled to all benefits, such as, pension, gratuity, service etc. It would be useful to reproduce prayer clauses (B) and (C) from said R.C.S. No.75 of 2001. "(B) Issue of mandatory injunction directing the defendant No.2, to give all the benefits of Pension, Gratuity, Service of deceased Syed Azagar s/o Abdul Gaffar r/o Parbhani. AND (C) Any other relief which the Hon'ble Court may deem fit and proper in the circumstances of the case be awarded in favour of plaintiffs and against defendants." 06. Learned Second Joint Civil Judge, Junior Division, Parbhani decreed the suit and declared the plaintiffs (appellants herein) as the only legal heirs and successors of the deceased Syed Azgar and that they are entitled to benefits, such as, pension, gratuity, service etc. as the legal heirs and successors of the deceased. Defendant- Respondent No.2 herein was directed to give all 5 benefits of pension, gratuity, service etc. to the plaintiffs for which they were held entitled as legal heirs and successors of the deceased Syed Azgar. It is this judgment and decree which was challenged in Regular Civil Appeal No.54 of 2004 before the District Court by original defendant No.1 Sugrabee. 07. Learned Additional District Judge, Parbhani while deciding said R.C.A. No.54 of 2004 on 13.6.2006 did not consider merits of the matter and the evidence adduced by the parties. However, he observed in paragraphs 15, 16 and 17 that the plaintiffs have sought declaration regarding their legal character or right to the property within the meaning of Section 43 of the Specific Reliefs Act. He referred to provisions of Section 34 and observed that the plaintiffs being able to seek such relief other than declaration of title omitted to do so and have not approached civil court independently under Section 372 of the Indian Succession Act,1925 for grant of succession certificate. On the other hand, the plaintiffs had sought revocation of succession certificate granted in favour of defendant-Sugrabee and in the circumstances, the plaintiffs were not justified in filing suit for declaration that they are the legal heirs and successors of the deceased Syed Azgar in stead of making an application under Section 372 of the Indian Succession Act. 6 08. The learned Additional District Judge has not properly construed the scheme of the Indian Succession Act particularly he did not consider Section 387 and Part X of the Act which deals with Succession Certificates. Section 387 reads thus; "387.- Effect of decisions under this Act, and liability of holder of certificate thereunder.- No decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceedings between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto." 09. It may be noted that when the Succession Certificate was issued in favour of Respondent No. 1 Sugrabee, application under Section 383 of the Indian Succession Act was made for revocation of the Succession Certificate. Remedy of appeal under Section 384 of the Act was also pursued. Section 387 quoted above amply makes it clear that 7 the decision under Part X of the Act upon any question of right between any parties is not bar for raising the said question in any suit or other proceedings between the same parties. It is also made clear that the succession certificate issued under the said Part X shall not be construed to affect liability of any person who receives whole or any part of any debt or security to account therefor to the person lawfully entitled to the same. 10. The Supreme Court has made this position clear in paras 13 to 16 Madhavi Amma Bhawani Amma v. Kunjukutty Pillai Meenakshi Pillai AIR 2000 SC 2301. I may reproduce certain portions from paragraphs 14 and 15 which are relevant for present proceedings. "14. So, this certificate merely affords full indemnity to the debtor for the payment he makes to the person holding such certificate. Thus, when the debtor pays the debts or the securities as specified in the certificate, to the holder of such certificate, then on such payment, he is absolved from his obligation to pay to any one else as it conclusively concludes his part of his obligation and such payment is construed to be in good faith. This safeguards 8 such debtor or person liable to pay that he may not be later dragged into any litigation which may arise subsequently inter se between the claimants. The use of words "good faith" in Section 381 reinforces that decision in these proceedings are not final." 15. This can be examined from another angle. The grant of Succession Certificate fails under Part X of the aforesaid Act. Its range is between Sections 370 to 390. It is significant to refer here Section 387. This declares the effect of decisions made under this Act and the liability of holder of such certificate. It lays down that any decision made under this Part, (Part X) upon any question of right between the parties shall not bar the trial of the same question in any suit or other proceedings between the same parties. It further records that nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto." Same view is expressed also in Joginder Pal 9 versus Indian Red Cross Society (2000) 8 SCC 143. 11. In the facts and circumstances of the present case, observations made by the learned Additional District Judge in paragraph 17 of his judgment were not in accordance with law and it cannot be said that the present suit was not tenable on that count. It is further observed by learned Additional District Judge in paragraphs 18 and 19 that the relief of mandatory injunction was sought against Respondent No. 2 and as stated earlier, the trial court had granted the said relief of mandatory injunction by directing defendant No. 2 to give all benefits of pension, gratuity, service etc. to plaintiffs-appellants herein. 12. It is one thing to say that the a person is not entitled to a particular relief or to a relief claimed in particular form and it is another thing to say that the suit is not tenable because the relief claimed was not properly formed or articulated. In the present case, whether the mandatory injunction claimed against Defendant No. 2 ought to have been granted or not is a question about which this court while dealing with appeal from order cannot consider, because that would be entering into the question beyond the scope of this appeal from order which is directed against the order of remand. It does not appear from the 10 judgment of the learned Additional District Judge that the parties have asked for permission to amend their pleadings or they wanted remand on the ground that they desired to lead additional evidence. In my considered opinion, the order of remand was totally uncalled for and was a result of misconception. 13. In the circumstances, Appeal from Order is allowed. The order passed by learned Additional District Judge, Parbhani on 13.6.2006 allowing Regular Civil Appeal No.54 of 2004 and setting aside the judgment and decree in R.C.S. No.75 of 2001 is hereby set aside. Regular Civil Appeal No.54 of 2004 is remitted back to the District Court, Parbhani, with directions to take the same on its file and decide it afresh on its own merits. It is made clear that this court has not expressed any opinion on merits. Parties before this court agree to appear before the District Court on 15.9.2009. Regular Civil Appeal No.54 of 2004 be decided as far as possible within three months from 15.9.2009. pnd/ ao67.06 (P.R.BORKAR, J.)