ABDULHUSSAIN Vs. AKBARALI AND ORS.
HIGH COURT OF MADHYA PRADESH
Akbarali And Ors.
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Chaturvedi, J. -
(1.) ONE Daudbhai, a Bora, died on 29 -11 -1944 leaving his brother Akbarali and his sister Fatma Bai as his heirs. His widow Safia Bai had remarried and so is not in the picture. It is said that on 11 -7 -1944 Daudbhai had executed a will. Whether it is a will or not that is disputed. But it is in the form of a letter addressed by the deceased to Rai Bahadur Rangilal, Chief Justice of Indore State High Court.
On the basis of this will, Suleman and Abdul Hasan, members of Bohra community averred that Daudbhai bequeathed his properly to the Bohra community. Akbarali and Fatma Bai applied to the District Judge, Indore, for grant of succession certificate in respect of the debts said to be due to the deceased Daudbhai. This right to get the succession certificate was contested by Sleman and Abdul Hasan, members of the Bohra community. They also filed an application for grant of Letters of Administation with the will annexed, in respect of the estate of the deceased Daudbhai in the District Judge's Court, Indore.
The learned District Judge dismissed the application for grant of Letters of Administration with the will annexed on the ground that the Indore Probate and Letters of Administration Act (No. 2 of 1929), under which the application was made, has been repealed as a result of coming into force of the Indian Succession Act in Madhya Bharat.
(2.) THE application by Akbarali and Fatma Bai has now been granted for succession certificate in respect of Daudbhai's debts on the condition that they would furnish security. Abdul Hasan has come in appeal against this order.
(3.) MR . Rege, learned Counsel for the Respondents however raises a preliminary objection that the order passed by the District Judge is not appealable under Section 384, Indian Succession Act (No. 29 of 1925). The first Sub -section of Section 384, which is material for the purposes of this appeal, runs as follows:
Subject to the other provisions of this part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct die District Judge. On application being made therefore, to grant it accordingly, in supersession of the certificate if any, already granted.
This section corresponds to Section 19 of Act No. 7 of 1889, and it was held in 'Bhagwani v. Mannilal', 13 All 214 (A) that an order allowing grant of a succession certificate on condition of security being furnished is an interlocutory order and is not appealable for, it cannot be held to be an order "granting, refusing or revoking a certificate" within the meaning of Section 19, Succession Certificate Act (No. 7 of 1889) as the final order remains yet to be made by the District Judge, Mr. Rege places reliance on this ruling, and there is no doubt that it has been followed in several cases. See 'Nannhu Mal v. Gulabo', 26 All 173 (B); 'Bai Devkore v. Lalchand', 19 Bom. 790 (C).;
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