- (1.) D. K. Seth, J. The order 22nd March, 1996 passed by Ist Additional District Judge, Firozabad in Misc. Appeal No. 65 of 1995 affirming the order dated 6th September, 1995 passed by the Civil Judge (Senior Division), Firozabad in Succession Case No. 74 of 1990 is under challenge in this Civil Revision.
(2.) MR. A. Y. Yadav, learned counsel for the petitioner had assailed the impugned order on the ground that the finding of both the Courts below suffers from perversity. The conclusions arrived at are based on no material. That apart he further contends that the Court which have granted the Succession Certificate did not have territorial jurisdiction. The learned Trial Court had overruled the said objection without adverting to the materials on record and the legal proposition. Whereas the learned Lower Appellate Court had referred to the said objection but did not decide the same nor it had adverted to the objection so raised. He further contends that though such objection was not taken in the written statement but yet the question was raised before the Trial Court and the Trial Court had entertained the said objection and had decided the same. Therefore, it would not hit by the mischief of S. 21 of the Code of Civil Procedure. Since the Trial Court had come to an adversed finding with regard to the territorial jurisdiction and the Lower Appellate Court did not advert to the same, the impugned order should be set aside and the matter should be remanded for fresh decision. He then contends that by reason of S. 379 of the Indian Succession Act, the application for Succession Certificate should have accompanied by a deposit of a sum equivalent to the Court fees payable on the certificate if granted. According to him, in the present case admittedly, no deposit was made along with the application. Therefore, there has been an infraction of Section 379 which is mandatory and as such the application could not be maintained. Elaborating his argument on the question of territorial jurisdiction MR. Ajay Yadav contends that Section 371 prescribes that such application is to be filed before the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death. In the present case, the deceased died at Kanpur and he was residing in Kanpur for last five year. Therefore, Kanpur was his ordinary residence at the time of his death. Therefore, the application could not have been maintained at Firozabad. Once a person ordinarily resides at the time of his death at a place then his permanent address in that event the place where he resided ordinarily at the time of his death would be taken to be the place where such application is to be filed. In such circumstances, the permanent address would become immaterial. According to him, if at the time of his death the deceased had no fixed place of abode in that event, such application is to be filed within the jurisdiction where the property or any part of it may be found. Thus according to him, if there is no ordinary place of residence at the time of his death in that event, the application could not have been filed at the placed of his permanent address. On these grounds, he claims that the impugned order should be set aside. Since both the Court below did not have jurisdiction in view of Section 371 of the Indian Succession Act. Mr. A. S. Diwakar, learned counsel for the respondents on the other hand contends that the petitioner having not taken this objection in the written statement and no issue having been framed on the question of jurisdiction, mere raising the question at the time of argument and adverted thereto by the Trial Court would not take away case outside the scope and purview of Section 21 of the Code of Civil Procedure. According to him, such objection is to be taken before the issues are settled and there should be issue framed in order to enable the parties to adduce sufficient evidence. Unless such issue is framed in as much if it is sparked as surprise to the defendant on a question which could not be made by leading sufficient evidence. He then contends that the deceased was not ordinarily resided at Kanpur. Admittedly, his office is at Allahabad where he was posted. He had been at Kanpur for the purpose of his treatment. A place, where a person stay for the purpose of getting himself treated, cannot be treated to be a place of his ordinary residence. Admittedly, the deceased was a railway employee whose service was transferable and he had been transferred from place to place. In the Office record, he had given his permanent address at Firozabad. Therefore, in such case, he was a resident of Firozabad where he ordinarily used to reside. Though he had been at Kanpur at the time of his death for the purpose of treatment. Therefore, the same would not affect the jurisdiction of the court. Therefore, the petition filed by her at Firozabad was very much maintainable. With regard to the objection relating to Section 379 Mr. Diwakar contended that the provisions therein are not mandatory. In as much as, it was not a Court fee payable on the application. The deposit is made only to meet the expenses of the Court fee to be affixed on the certificate only after it is granted. Therefore, the provision contained therein cannot be treated mandatory. According to him, it is only to secure the payment of stamp duty for issuing the certificate after the Succession Certificate is granted. This is apparent from the scheme of Section 379 of the said Act. Therefore, according to him, the non-deposit of the amount equivalent to stamp duty payable on the certificate would not vitiate the proceedings. In case he fails to deposit the stamp duty in that event, the certificate may not be issued. Unless a certificate is issued, the grant of certificate would not enable the applicant to receive the estate. He then contends that there is no perversity either in the order of Trial Court or in the order of the Lower Appellate Court. On the other hand, the conclusions reached at are based on sufficient materials and thus, this has become concurrent finding of fact with which this Court is slowly to interfere while exercising revisional jurisdiction. He further contends that even if on the basis of materials a reasonable man would come to a conclusion one or the other way in that event, it cannot be said to be perverse. It is perverse only when a reasonable man cannot come to a conclusion on the basis of material available or that there was no material available. It is not a case where no material was available. He had led me through the judgment of the Court's below and pointed out that there was no perversity. Even if, this Court is of a different opinion still then it cannot interfere with the said finding which has assumed the characteristic of a concurrent findings unless the Court is of opinion that there is perversity. In the absence of perversity in the present case, there is no scope of interference. On these grounds, he prays that the revision be dismissed. I have heard both the counsel at length.
(3.) SO far as the question of perversity is concerned, it is apparent that both the Courts below had come to the same conclusion. The findings have thus assumed the characteristic of a concurrent finding by two Courts. My attention had not been drawn to anything which can show that there was any perversity in the findings. Mr. Ajay Yada had relied on Annexure 9 to the revisional applciation which was a Deed of Adoption alleged to have been executed by the deceased and contends that this document was not allowed to be produced by the learned Trial Court and therefore, the petitioner could not rely upon the same. He further contends that the negatives of the photographs produced in the Trial Court, since been discarded, were also refused to be admitted into evidence. Therefore, though there were materials but those were not allowed to be put into records and as such the findings arrived at cannot be sustained. On the record, in does not appear that there was any attempt on the part of the petitioner to produce the negatives of those photographs or to call the photographer as a witness in the proceedings. Mr. Ajay Yadav has not been able to show that any such application was made before the learned Trial Court to allow him to issue notice or summons to the photographer for adducing evidence on his behalf nor he has not been able to show any record that any such application was made permitting him to adduce the negative or the documents contained in Annexure-9 in evidence in the Trial Court. He has also not contended that any application under Order 18, Rule 17-A of the Code of Civil Procedure was ever made. Mr. Yadav has also not been able to show from the Memorandum of Appeal that there was any such ground taken in the Memorandum of Appeal Mr. Yadav had however, contended that no copy of the Memorandum of Appeal is available to him. At the same time, he does not confirm that such a ground was taken in the Memorandum of Appeal. At the same time, he has also not contended that in the appeal, any application under Order 41, Rule. 27 of the Code of Civil Procedure was filed to bring those documents on record. Had it been a case that these documents were refused to be admitted into evidence by the Trial Court in that event, it was open to the petitioner to take such ground in the Memorandum of Appeal. In the absence of Memorandum of Appeal, it is not possible to ascertain whether such a ground was taken or not. Allowing that advantage in favour of Mr. Yadav we may now look into the conduct of the petitioner to bring those non-admitted documents on record by way of additional evidence in the appeal. Admittedly, Mr. Yadav in his usual fairness had conceded that no application under Order 41, Rule 27 was made in the appeal.;