RAJIV SHARMA,J. - (1.) HEARD Sri S.K. Mehrotra, learned Counsel for the revisionists and Sri R.N. Tilhari, Counsel for the respondent.
(2.) AGGRIEVED by the judgment and order dated 15.10.1990 passed by the District Judge, Hardoi in S.C.C. Appeal No. 70 of 1989, the revisionists have preferred this revision under Section 388 (3) of Indian Succession Act, 1925 read with Section 141 and Section 115 of the Code of Civil Procedure. Draped in brevity, the facts giving rise to the instant revision are that the dispute is in respect to the succession of the case property in the shape of a FDR for Rs.14000/- left by Shiraj Singh on his death on 6.12.1986 in village Bhinsari, Pargana Gopamau, Tahsil and district Hardoi. Respondent-Smt. Susum Late, wife of Babu Singh, filed a case for succession certificate as she being the daughter of deceased Shivraj Singh and except her, no other issue was alive at the time of his death. The same was registered as Misc. Case No. 125 of 1986. The Civil Judge, vide order dated 17.10.1989, after considering the evidence led by the parties, dismissed the claim of the respondent-Smt. Kusum Lata for issuance of succession certificate in her name and by the same order and further directed to issue the succession certificate in the name of the defendants-revisionists in respect of the FDR in question. Against the order dated 17.10.1989, respondent-Smt. Kusum Lata preferred an appeal, which was registered as Misc. Civil Appeal No. 70 of 1989. The appellate Court, while concluding observed that " ..............However, the proof that could be obtained by the appellant, has been brought before the Court in proof of the birth of a daughter to Gulab Singh in the year 1922. The learned Trial Court has surprisingly enough raised a presumption that the said daughter of Gulab Singh might have expired. I am really amazed at this logic of the learned trial Court. Here the trial Court has to decide between the respective cases of the parties and not to import anything from his side. It is not the case of the opposite parties that a daughter was born to Gulab Singh, who, however, died in her infancy or at any point of time. Their case is that of total denial of a birth of a daughter to Gulab Singh. On the other hand, the appellant has come forward with a straight forward case that her mother was born as a daughter to Gulab Singh and as such her mother was the sister of deceased Shivraj Singh. The said case of the appellant stands thoroughly proved by the entry of the birth register of the year 1922. Once it is established that a daughter was born to Gulab Singh, the appellant becomes a preferable successor in comparison to the opposite parties being the daughter of the sister of deceased Shivraj Singh. It is also worth notice that the opposite parties have not given any reliable proof regarding any other woman than Smt. Savitri being the mother of the appellant."
(3.) ACCORDINGLY, the appellate Court, vide order dated 15.10.1990, allowed the appeal, set-aside the judgment and order dated 17.10.1989 and a direction was issued to issue a succession certificate in the name of respondent-Smt. Kusum Lata Devi. Feeling aggrieved, the revisionists have preferred the instant revision inter alia on the grounds that the appellate Court acted in exercise of its jurisdiction illegally and with material irregularity in placing reliance on the alleged entry of the Kutumb Register, as the same being not in consonance with the oral evidence, with the genealogy of the deceased and therefore, it was inadmissible in evidence. Apart from the above, the Court below illegally placed the burden of proof on the revisionists and decided the case of surmises and conjuntures. A preliminary objection has been raised by Sri R. N. Tilhari, learned Counsel for the respondent that the Civil Revision under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'CPC') as amended by the State of U.P. is not maintainable. In support of his submission, he has relied upon the judgment of Full Bench rendered in the case of M/s Jupiter Chit Fund (Pvt.) Ltd. V. Dwarka Diesh Dayal and others [AIR 1979 Allahabad 218] and the judgment of the Apex Court rendered in the case of Vishnu Awatar etc. V. Shiv Autar and others [1980 Allahabad Rent Cases 461] and Vishesh Kumar V. Shanti Prasad [AIR 1980 Supreme Court 892] and this Court judgment rendered in the case of Smt. Beti Devi versus Smt. Vinod Kumari [1994 (12) LCD 227].;