KALABAI Vs. PUSHPA BAI

JUDGEMENT

(1.) This is an appeal under Section 384 of the Indian Succession Act, 1925, against the order passed by the learned District Judge. Betul in Succession Case No. 5/93, whereby succession certificate has been granted in favour of the applicants-respondents.

(2.) Brief facts for disposal of this appeal are that one Nimbaji who was a resident of village Gunkhed, district Betul, died on 29.10.92. leaving behind his widowed daughter-in-law Pusphabai and his son Ramrao who already predeceased him. Pushpabai had two children, son Virendra Kumar and daughter Archana alias Rachna. Deceased Nimbaji also had two daughters Kalabai and Leela Bai. Gyandeo is the son of Kalabai. Pushpabai filed a petition in the District Court, Betul seeking succession certificate for movable and immovable properties of the deceased Nimbaji on the basis of a so called Will. The original Will was not produced during the trial and it was alleged that it was in possession of the daughters of the deceased Nimbaji and request was made to get that Will produced in Court. Both the daughters denied to be in possession of the Will. However, the learned District Judge granted succession certificate in favour of Pushpabai holding that the Will was not produced which is alleged to be in possession of the daughters of the deceased. Aggrieved against this order, the present appeal has been preferred by the daughters of deceased Nimbaji.

(3.) We have heard learned Counsel for the parties. Learned Counsel for the appellants submitted that since succession certificate was claimed on the basis of the Will which was not produced either by the applicants or by the non-applicants, there was no occasion for the learned District Judge to grant succession certificate in favour of Pushpabai. The submission of learned Counsel for the appellants appear to be justified that when the applicants had claimed succession certificate on the basis of the Will and she was not in possession thereof and both daughters have denied that they are also not in possession of the Will, there was no occasion for the District Judge to have granted succession certificate. If the applicants have sought a succession certificate without the Will, then this matter could have gone on the trial on the basis of evidence, but in the present case, succession certificate is sought on the basis of Will which has not been produced. There was no occasion for the District Judge to have granted succession certifi cate in favour of Pushpabai. The proper course for the learned District Judge was first to have framed a proper issue whether there was a Will left by Nimbaji or not. Then alone he could have decided the matter of succession one way or the other. If the Will had been brought on record, he should have decided the rights of the parties on the basis of the Will and the material placed before him. But the learned District Judge granted succession certificate to Pushpabai which was claimed on the basis of a Will, though it was not produced before him. This approach of the learned District Judge cannot be sustained.