IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 CRP.No. 2534 of 1999(H) AGAINST THE JUDGMENT IN CMA.110/97 OF DISTRICT JUDGE, KOZHIKODE AND SUCCESSION O.P. NO.13/96 OF MUNSIFF'S COURT, NADAPURAM, DATED 31ST OCTOBER, 1997. REVN. PETITIONER: APPELLANT: PETITIONER: MANICHERRY SASEENDRAN, S/O.KRISHNAN, RESIDING AT THIRUVANGAD AMSOM, THALASSERY DESOM, KANNUR DISTRICT, MINI TAILORS, NADAPURAM P.O. BY ADV. SRI.T.A.RAMADASAN RESPONDENTS: RESPONDENTS: RESPONDENTS: 1. SMT.P.V.LEELA, D/O.RAMAN, HEAD NURSE, GOVT. HOSPITAL, NADAPURAM, RESIDING AT PARAMBATH HOUSE, V.O.ROAD, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. THANKAMANI, W/O.BHASKARAN, VATTAPARAMBIL HOUSE, MALAMPUZHA AMSOM DESOM, MALAMPUZHA P.O., PALAKKAD. 3. YESODA, W/O.V.P.PURUSHOTHAMAN, RESIDING AT -DO- 4. SUNESH KUMAR, S/O.YESODA, RESIDING AT -DO- 5. SULABHA KUMARI, D/O.V.P.PURUSHOTHAMAN, RESIDING AT -DO- -DO- 6. SUPRIYA, D/O.V.P.PURUSHOTHAMAN, RESIDING AT -DO- -DO- 7. SUNIL KUMAR, AKKARAMMAOL, S/O.ACHUTHAN, AKKARAMMAL HOUSE, PARASSINIKADAVU AMSOM DESOM, PARASSINIKADAVU P.O., KANNUR DISTRICT. 8. A.JANAKI, W/O.KUNHAMBU, THAROL HOUSE, MANGAD, KALLIASSERI P.O., KANNUR DISTRICT. R2 TO R8 BY ADV. SRI.A.MOHAMED MUSTAQUE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 5/4/2011, THE COURT ON 24/05/2011 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ C.R.P. NO. 2534 OF 1999 H ------------------------------------------------------ Dated this the 24th day of May, 2011 O R D E R The questions involved in this Revision are the following: a) Whether the Court could dismiss the Original Petition for the issue of succession certificate on the ground that complicated questions of fact are involved? b) Whether the Court could refuse to entertain the Original Petition for the issue of succession certificate on the ground that the petitioner is claiming under a Will? c) Whether gratuity payable to the deceased is a debt in respect of which a succession certificate can be issued? d) Whether the courts below were justified in dismissing the Succession O.P. on the ground that the petitioner claims to issue the succession certificate in respect of only part of the estate of the deceased. 2. Chandramathi, the next friend of the first respondent and sister of respondents 3 and 8 died a spinster. The petitioner alleged that Chandramathi borrowed a sum of `45,000/- from him for the C.R.P. NO.2534 OF 1999 :: 2 :: construction of a house. Chandramathi was a staff nurse working in the Government Hospital, Nadapuram. She was residing in a rented house with her close friend, the first respondent. Chandramathi died in harness. The petitioner alleged that Chandramathi executed a Will bequeathing her properties. The Will is an unregistered Will. The Will was written in a diary kept by Chandramathi. It was attested by two witnesses. In the Will, there is a stipulation that on her death, the petitioner would be entitled to get `45,000/- from her gratuity amount. The petitioner filed the Succession O.P. for the issue of a succession certificate for a sum of `45,000/- out of the gratuity amount. 3. The first respondent stated in her counter statement that Chandramathi was living with her since 1985. Both of them were working in Government Hospital, Nadapuram from 1972 onwards. For the purpose of construction of a house, Chandramathi borrowed a sum of `45,000/- from the petitioner. The amount was not repaid. After the death of Chandramathi, the first respondent found out the diary containing the Will and it was intimated to the petitioner. C.R.P. NO.2534 OF 1999 :: 3 :: 4. Respondents 2 to 8 contended that respondents 3 and 8, being sisters of Chandramathi, are entitled to get the entire amount of gratuity. The Will was disputed by them. It was alleged that the Original Petition was filed by the petitioner in collusion with the first respondent. There was no necessity for Chandramathi to borrow any amount from the petitioner. Since complicated questions are involved and the genuineness of the Will is to be decided, the petitioner has to institute a civil suit before the competent civil court. A succession certificate can be issued only in the case of intestate succession. 5. Before the trial court, the petitioner was examined as PW1 and the two attesting witnesses to the Will were examined as PWs.2 and 3. Exts.A1 to A6 were marked on the side of the petitioner. The first respondent was examined as RW1 and the diaries of Chandramathi and her ration cards were marked as Exts.B1 to B5. No evidence was adduced by respondents 2 to 8. 6. The trial court dismissed the Succession O.P. on the following grounds: (1) Gratuity amount is not a debt and as such C.R.P. NO.2534 OF 1999 :: 4 :: succession certificate cannot be granted in respect of the same. (2) Complicated questions regarding genuineness of the Will are involved in the case and those questions cannot be decided in a summary proceeding. (3) The petitioner claims only a portion of the amount out of the gratuity amount and therefore, a succession certificate cannot be granted in respect of the same. 7. On appeal by the petitioner, the learned District Judge disagreed with the findings on points 1 and 2 mentioned above. However, the Appellate Court confirmed the finding on point No.3 mentioned above and dismissed the appeal. 8. Both the courts below did not consider the genuineness or otherwise of the Will. The courts below also did not arrive at any finding as to whether Chandramathi had borrowed a sum of `45,000/- from the petitioner. 9. The proceedings for the issue of succession certificate are summary in nature. That does not mean that the court cannot allow the parties to produce documents and to adduce evidence. The C.R.P. NO.2534 OF 1999 :: 5 :: grant of succession certificate does not involve final determination of the title set up by the parties. It is also not necessary to decide finally the disputed questions of fact and law. The succession certificate only enables the party to whom the certificate is granted to collect any debt or security belonging to the deceased. For that purpose, the court has to ascertain whether the person to whom the certificate is to be granted has a prima facie right for the same. A decision rendered by the Court in a Succession O.P. would not constitute res judicata as between the parties to the proceedings in a subsequent suit between the same parties. 10. In Madhvi Amma Bhawani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others (2000 (2) KLT 518 : AIR 2000 SC 2301), it was held thus: “13. This sub-section reveals two things, first adjudication is in a summarily proceedings and secondly if the question of law and fact are intricate or difficult, it could still grant the said certificate based on his prima facie title. In other words the grant of certificate under it is only a determination of prima facie title. This as a necessary corollary confirms that it is not a final decision C.R.P. NO.2534 OF 1999 :: 6 :: between the parties. So, it cannot be construed that mere grant of such certificate or a decision in such proceedings would constitute to be a decision on an issue finally decided between the parties. If that be so how could principle of res judicata be made applicable to a case in a subsequent suit? .... ..... ...... 16. This leaves no room for doubt. Thus any adjudication made under Part X of this Act which includes Section 373 does not bar the same question being raised between the same parties in any subsequent suit or proceedings....” 11. In Madhwapathi Venkatakrishna Rao v. Panditha Narasubhai and another (AIR 1954 ANDHRA 23), it was held that the fact that complicated questions of fact and law arise in an application for the issue of succession certificate does not entitle the Judge to dismiss the application. In Firm of Patnam Lakshminarayana Chetti, represented by Managing Partner, Patnam Lakshminarayana Chetti v. Grandhe Seshamma and others (AIR (29) 1942 Madras 709(1)), the Madras High Court held C.R.P. NO.2534 OF 1999 :: 7 :: that dismissal of an application for the issue of succession certificate for the reason that the questions involved in the case are too complicated to be decided in summary proceedings is not a valid reason in view of subsection (3) of Section 373 of the Indian Succession Act. It was further held that under Section 373(2) of the Indian Succession Act, the Court can make the order after going into the merits of the case. But, under Section 373(3), the Court need not determine questions of law or fact, which are too intricate and difficult for determination in summary proceedings, though the Court is expected to make an order. In Narayana Pillai v. Krishna Pillai (1985 KLT 204), it was held that “Sections 370 to 373 of the Indian Succession Act do not provide for converting an application for succession certificate into a suit. Under Section 373, the provision is to decide the application in a summary manner and the question to be decided is the right to the succession certificate. ...... The Court is only called upon to make a summary enquiry about the right to the succession certificate and not in respect of title to the assets.” Sub- section (3) of Section 373 of the Indian Succession Act provides that “if the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate C.R.P. NO.2534 OF 1999 :: 8 :: and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.” 12. In view of the provision in sub-section (3) of Section 373 of the Indian Succession Act and also in the light of the aforesaid decisions, I am of the view that the trial court was not justified in holding that the Succession O.P. cannot be decided on the merits since complicated questions of fact and law are involved. 13. The next question to be decided is whether a succession certificate can be granted by the court when the petitioner claims right under a Will. If the petitioner claims a right under the Will, it could be said that it is not necessary to get a succession certificate in order to claim the debt or security. On the basis of proof of the Will by getting a probate or letters of administration with the Will annexed or otherwise if permitted, the party could get the debt or security even without getting a succession certificate in his favour. But the provisions of Part X of the Indian Succession Act, 1925 do not bar the party who claims under a Will to get a succession certificate. C.R.P. NO.2534 OF 1999 :: 9 :: Sub-section (1) of Section 370 provides that a succession certificate shall not be granted under Part X with respect to any debt or security to which a right is required by Section 212 or Section 213 to be established by letters of administration probate. Sections 212 and 213 provide as follows: “212. Right to intestate's property:- (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction. (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi. 213. Right as executor or legatee when established:-- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. (2) This section shall not apply in the case of C.R.P. NO.2534 OF 1999 :: 10 :: Wills made by Muhammadans or Indian Christians, and shall only apply -- (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and16 (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.” It is not necessary for a Hindu to get a probate or letters of administration if he claims under a Will. The bar under Section 370 applies only when Section 212 or Section 213 applies. 14. In Madhwapathi Venkatakrishna Rao v. Panditha Narasubhai and another (AIR 1954 ANDHRA 23), the petitioner C.R.P. NO.2534 OF 1999 :: 11 :: claimed to be a legatee under a registered Will. The Will was disputed by the contesting respondents. The District Judge dismissed the petition holding that the case involved complicated question of law and fact. The High Court set aside the order of the District Judge on the ground that the court was bound to issue succession certificate to the person who prima facie has best title. It was held that if there is any other person who got a better claim than the petitioner, he certainly has the right to get the succession certificate. However, since the District Judge did not consider the genuineness of the Will, the case was remanded to the District Judge. In Baba Rama Nand v. Parkasha Nand Ghanaya Lal (A.I.R. 1939 Peshawar 30), it was held thus: “On the merits, we do not think that either of the orders can be sustained. No decree can be passed in a case in which a succession certificate is required until a succession certificate has been produced, and it is the duty of the Court to see which party is prima facie entitled to a certificate. There may be cases in which a Court has a discretion to refuse a certificate altogether, for instance, in a case where no party proves any prima facie claim to the property in dispute. But in the cases before us Ramanand, the appellant, is in possession of C.R.P. NO.2534 OF 1999 :: 12 :: a will in his favour executed by the person whose property he is seeking to realize. We think that this is a sufficient ground on which to grant a certificate to him.” The Nagpur High Court in Kisan Gopal Madan Gopal Marwadi v. Chunnilal Hanamantram and others (AIR 1938 Nagpur 47) also took the view that the succession certificate can be granted if the party claims under a Will. 15. In Pitmo v. Shyam Singh (AIR 1978 Allahabad 301), it was held that a probate is not necessary for the establishment of a right under a Will by a Hindu where the provisions of clauses (a) and (b) of Section 57 of the Indian Succession Act are not attracted. The bar under Section 370 is attracted only in a case to which Sections 212 and 213 apply. 16. For the aforesaid reasons, I am of the view that the mere fact that the petitioner claims right under a Will does not preclude him from getting a succession certificate. 17. The learned counsel for the contesting respondents C.R.P. NO.2534 OF 1999 :: 13 :: submitted that gratuity payable to Chandramathi and after her death to her legal heirs does not amount to a debt or security and therefore, the petitioner is not entitled to get a succession certificate. He also raised the following contentions: The gratuity payable to an employee, after his death, belongs to his family members. A Will executed by an employee who dies before retirement would not entitle the legatee to claim the gratuity, as the gratuity is not an estate of the testator. The counsel referred to Rules 66, 67, 71 and 72 of Part III of the Kerala Service Rules in support of his contentions. The counsel also relied on Jodh Singh v. Union of India and another ((1980) 4 SCC 306) and Violet Issac v. Union of India (1991 (1) KLT 579(SC)). 18. The learned counsel appearing for the petitioner submitted that gratuity is an asset and it can be dealt with by the employee even before or after his retirement. Gratuity payable under the Kerala Service Rules is not a compensation or any solatium on account of the death of the employee. But it is a statutoy right conferred on the employee to get the amount on account of the service rendered by him. C.R.P. NO.2534 OF 1999 :: 14 :: 19. Rule 64 of Part III of the Kerala Service Rules provides for payment of gratuity, superannuation, invalid, compensation and retiring pension. Rule 64 occurs under Section III in Part III of the Kerala Service Rules. Section IV in Part III of the Kerala Service Rules contains Rules 66 to 70. Rule 66 provides that an employee who has completed five years of qualifying service may be granted additional gratuity not exceeding the amount specified in Rule 68, when he retires from service, and is eligible for gratuity or pension under Section III. Rules 67 and 71 of Part III of the Kerala Service Rules are extracted below: “67. If an employee who has completed five years of qualifying service dies while in service, a gratuity not exceeding the amount specified in Rule 68 below may be paid to the person or persons on whom the right to receive the gratuity is conferred under Section V or, if there is no such person, to the surviving members of the family as defined in Rule 71 in the manner indicated below:-- (i) If there are one or more surviving members of the family as in items (a), (b), (c) and (d) of Rule 71, it C.R.P. NO.2534 OF 1999 :: 15 :: may be paid to all such members, other than any such member who is a divorced/widowed daughter in equal shares. (ii) If there are no such surviving members of the family as at (i) above, but there are one or more surviving divorced/widowed daughters and/or one or more surviving members of the family as in items (e), (f), (g), (h), and (i) of Rule 71, it may be paid to all such members in equal shares. (iii) In the absence of any surviving eligible member of the family as defined in Rule 71, death-cum- retirement gratuity shall be paid to eligible legal heirs in equal shares on production of a Succession Certificate from a Court of Law. Note 1:- The eligibility of a person to receive the amount or share of death-cum-retirement gratuity should be determined with reference to the facts as they stand on the date of death of the Government employee and any subsequent event (e.g. remarriage of widow, marriage of an unmarried daughter, sister, etc.) will not affect that entitlement. If, however, a person who was entitled to receive the death-cum-retirement gratuity on the date of the death of a Government C.R.P. NO.2534 OF 1999 :: 16 :: employee dies before getting payment, the amount or share of gratuity should be redistributed in the manner indicated below:-- (a) In case of 'no nomination' the amount of share of the gratuity admissible to the person concerned should be distributed in equal shares among the surviving eligible members of the family of the deceased Government employee. (b) If the person concerned was a nominee, the right to the amount or share of death-cum-retirement gratuity will pass on to the alternate nominee or nominees. In case there is no alternate nominee, the amount or share of gratuity should be paid in equal shares to the co-nominees of the person concerned, if any, and failing that it should be distributed in equal shares among the surviving eligible members of the family of the deceased Government employee as in (a) above. Note 2: Death-cum-Retirement Gratuity due to a Government servant who dies after retirement shall be paid to the members of the family in the same manner as laid down in this rule, provided the eligibility of a person to receive the amount in full or a share thereof should be determined with C.R.P. NO.2534 OF 1999 :: 17 :: reference to the facts as they stand on the date of retirement. Note 3: The after born child of a deceased employee is also eligible to get his/her share of Death-cum- Retirement Gratuity.” “71. 'Family' for the purpose of this Section will include the following relatives of the employee:-- (a) Wife, in the case of a male employee; (b) Husband, in the case of a female employee; (c) Sons; (d) Unmarried/divorced/widowed daughters; (e) Brothers below the age of 18 years and unmarried or widowed or divorced sisters; (f) Father; (g) Mother; (h) Married daughters; and (i) Children of a pre-deceased son. Note 1: (c) and (d) will include step children, adopted children and posthumous children. (f) and (g) will include adoptive parents in the case of individuals whose personal law permits adoption. Note 2: (h) will include married adopted and/or step daughters.” C.R.P. NO.2534 OF 1999 :: 18 :: 20. In the present case, the courts below did not arrive at any finding as to whether there was any nomination by Chandramathi with respect to gratuity. Respondents 3 and 8 are not unmarried or widowed or divorced sisters. There are no other legal heirs as mentioned in Rule 71. If so, clause (iii) of Rule 67 would apply. Rule 72 provides that an employee shall make a nomination conferring on one or more persons the right to receive any gratuity that may be sanctioned under Rules 67 and 69 and any gratuity which having become admissible to him under Rule 66 has not been paid to him before death. The ruling under Rule 72 states that a registered Will proved by letters of administration or probate will also be accepted as a valid nomination in the event of the death of an employee without making a nomination under the rule, provided the employee had no family at the time of his death. In the present case, the Will is not a registered one. It would appear that there was no nomination also. There is no case for the contesting respondents that they have obtained any decision from the civil court or from any other court entitling them to receive the gratuity amount payable from the account of Chandramathi. They have also not obtained any succession certificate as they did not apply for the same. C.R.P. NO.2534 OF 1999 :: 19 :: 21. I am not inclined to accept the contention that the gratuity is not an estate capable of being disposed of by a Will. An employee gets a vested right to receive gratuity, depending upon the years of service he has rendered. That right is indefeasible. It cannot be said that he has no disposing power over the gratuity. Rule 72 of Part III of the Kerala Service Rules, which makes provision for nomination, itself would indicate that the employee has a right to choose the beneficiary. It is true that Rule 71 read along with clause (iii) of Rule 67 of Part III KSR would indicate that the beneficiary should be a member of the family as mentioned therein or a legal heir. Any person is entitled to dispose of his assets by testamentary disposition. Such disposition need not necessarily be in favour of his legal heir. Such disposition could be even in favour of strangers. The provision for repayment of loan could be made by testamentary disposition from out of the assets of the deceased testator/debtor. So long as no nomination as mentioned in Rule 72 is proved, I do not find any impediment in granting a succession certificate on the basis of the Will executed by Chandramathi, the employee,