- (1.) THIS revision petition is directed against the order dated 21. 03. 1987 passed by District Judge, Udaipur by which the learned District Judge dismissed the petitioner's application filed under Section 376 of the Indian Succession Act.
(2.) BRIEFLY stated, the facts of the case are that the petitioner applicant Shri Gautam Banerjee filed an application for the grant of succession certificate with respect to the properties of his brother deceased Somnath. The learned District Judge by the order dated 17. 03. 1979 allowed the application and granted succession certificate. Petitioner, again on 22. 02. 1980 moved an application under Section 376 of the Indian Succession Act for the extension of the succession certificate with respect to the various amounts mentioned in the application. The learned District Judge passed order on this application on 7. 1. 81 for the extension of the certificate but before the certificate could be issued, a letter was received by the District Judge from Offg. D. D. and Secretary to Adjutant General, Army Group Insurance Directorate New Delhi by which the Court was informed that a will was executed by the deceased Somnath in favour of Smt. Madhu Kapoor now Madhu Khanna, sister- in law of the deceased and she has already applied for the grant of probate. After the receipt of this letter the Court vide order dated 4. 05. 1981 issued notice to the petitioner to show cause why this fact was concealed from the Court, The petitioner filed reply to the notice stating therein that the petitioner was not in the know of the execution of the Will by Shri Somnath Banerjee in favour of Smt. Madhu Kapoor and has not concealed anything from the Court. It was further mentioned in the application that if any will is in existence, then it is a fabricated document, actually no will was executed by his brother Somnath in his life time in favour of Smt. Madhu Kapoor. A notice was also given to Smt. Madhu Kapoor who filed an application on 3. 07. 1982. She also filed preliminary objections on 17. 09. 1982. The question of jurisdiction to entertain the application was also raised by her. Alongwith the preliminary objections, Smt. Madhu Kapoor also filed a copy of the probate granted by Additional District Judge, Amritsar in her favour. She also filed a copy of restraint order dated 10. 10. 1980 passed by Additional District Judge, Amritsar against the applicant Gautam Banerjee in the probate proceedings. She also mentioned in the reply that the notice of the proceedings of the probate was given to the applicant Gautam Banerjee and to the other relatives of the deceased but none appeared before the learned District Judge, Amritsar inspite of service and the learned Additional District Judge, Amritsar ultimately by order dated 12 the March, 1982 granted probate in her favour. The learned District Judge, Udaipur took up the question of jurisdiction first and after giving an opportunity of hearing to the parties, vide order dated 21. 03. 1987 held that the Court of District Judge, Udaipur has no jurisdiction to entertain the application as deceased Somnath at the time of his death was not residing within the jurisdiction of the District Judge, Udaipur nor any property of late Somnath was situated at Udaipur. It is against this order, the present revision petition has been filed by the petitioner. I have heard the learned counsel for the parties. It. has been contended on behalf of the petitioner that the succession certificate was issued in favour of the petitioner on 17. 03. 1979 and no application has been made for the revocation of that order, and unless and until that order is revoked, the extension of the certificate could not have been refused, because if the original certificate is allowed to stand and the extension is refused, there will be contradiction in the orders passed by the Court. Mr. Nagori appearing on behalf of the respondents submitted that the application for the grant of probate was moved in the Court of Additional District Judge, Amritsar and all near relatives were made parties in the probate proceedings and probate was granted after notice to all the parties concerned and if any body has any grievance against the grant of probate then that can be challenged by way of appeal and not otherwise. He has further submitted that in the presence of the will executed in favour of Smt. Madhu Kapoor, the Court had no jurisdiction to grant succession certificate or to extend the same. It is further submitted by Shri Nagori that petitioner filed application for grant of succession certificate without notice to the non-petitioner and as the succession certificate has been issued in which the non-petitioner was not a party and hence that is not binding on her. The last submission of the learned counsel is that the findings arrived at by the learned lower Court are purely findings of fact and as such the present revision petition is not maintainable. I have given my anxious consideration to the rival submissions made by the parties. The question that requires consideration in the present case is whether the learned District Judge, Udaipur has the jurisdiction to entertain the application under Section 376 of the Indian Succession Act for the grant of extension certificate. It is not in dispute that the deceased Somnath Banerjee was not having any property at Udaipur at the time of his death. He was also not residing at Udaipur at the time of his death. At that time he was posted in Army and was residing in the Government Quarters at Amritsar. Section 371 deals with the jurisdiction of the Court who is competent to grant certificate. According to Section 371, the District Judge in whose jurisdiction the deceased ordinarily resided at the time of his death or if at that time he had cot fixed place of residence, then the District Judge in whose jurisdiction any part of his property may be found may grant succession certificate. It is thus clear that only that court of District Judge has the jurisdiction to grant succession certificate under the Indian Succession Act in whose jurisdiction the deceased last resided at the time of his death or at the place where he had any property. As the deceased had no property at Udaipur and at the time of his death he was also not ordinarily residing at Udaipur though his relatives were residing at Udaipur, thus, the District Judge, Udaipur has no jurisdiction to entertain any application for the grant of succession certificate under the Act. When the Court had no jurisdiction to entertain the application, then it has also no jurisdiction to entertain the application for the extension of the succession certificate already granted. In the present case there was a will made by deceased Somnath in favour of Smt. Madhu and she obtained probate on the basis of that will. According to section 370 of the Indian Succession Act, a restriction has been imposed with respect to the grant of succession certificate and a succession certificate cannot be granted under Section 372 of the Indian Succession Act with respect to any debt or security to which a right is required by Section 212 or 213 to be established by a letter of administration or probate. In the present case, a probate was obtained by Smt. Madhu Kapoor on the basis of the will executed by late Somnath in favour of Smt. Madhu and therefore no extension of succession certificate can be granted by the Court of District Judge, Udaipur. Moreover, the proceedings which were taken by the petitioner in the Court of District Judge, Udaipur for the grant of succession certificate, in those proceedings the petitioner never made Madhu Kapoor as a party though in the probate proceedings which were pending before the Additional District Judge, Amritsar, notice of those proceedings were received by the petitioner but he did not care to join the proceedings. His only case is that though he received a notice but as the notice did not contain copy of the plaint with it, therefore, he did not knew the nature of the proceedings pending before the Additional District Judge, Amritsar. It is not out of place to mention here that such type of objection was never raised by the petitioner before the Court of Additional District Judge, Amristar nor any noting on the summons to this effect was made. If the petitioner did not choose to join issue in the probate proceedings, now he cannot be permitted to raise those objections in these proceedings. In the proceedings relating to the grant of succession certificate, Smt. Madhu was not made a party by the petitioner and therefore, if any succession certificate has been issued, that is not binding upon her and moreover when the Court itself has no jurisdiction to entertain the application, then the certificate issued by the Court having no jurisdiction will not come in the way of Smt. Madhu. The argument of the petitioner that as Smt. Madhu has not made any application for the cancellation of the original succession certificate and the succession certificate granted by the Court is not challenged and therefore the learned District Judge should have granted extension certificate also, has no force as in those proceedings, Smt. Madhu was not a party. Moreover this court cannot allow to perpetuate the illegality and to allow the Court to pass an extension certificate when it had no jurisdiction. In this view of the matter, I am of the opinion, that no illegality had been committed by the learned district judge in refusing to grant the extension certificate. The revision petition has thus no force and it is accordingly dismissed. . ;