About Me

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Monday, February 27, 2017

CMASR No.45531 of 2016 15-02-2017 Pasumarthi Srinivas...Appellant Responded: NIL ..Respondent

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT AND  THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO                  

CMASR No.45531 of 2016  

15-02-2017

Pasumarthi Srinivas...Appellant

Responded: NIL  ..Respondent        

Counsel for Appellant: Sri Rama Murty PVSA

Counsel for Respondent   :

<Gist:

>Head Note:

?Cases referred:

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        
AND
THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO          
C.M.A. (SR) No.45531 of 2016
ORDER: (Per Honble Sri Justice U.Durga Prasad Rao)
        Perused the office objections and heard learned counsel
for appellant.
2)      This C.M.A is filed by the appellant aggrieved by the order
dated 25.07.2016 in S.O.P (SR) No.2632 of 2016 passed by the 
Senior Civil Judge, Ramachandrapuram whereby the learned  
Judge dismissed the petition filed by the petitioner/appellant
for granting succession certificate. Hence, the CMA.
3)      The office took the objection that since the impugned
order was passed by the Senior Civil Judge, how the CMA is
maintainable before the High Court. It appears, the office view is
that the appeal should have been filed before the concerned
District Court.
4)      Learned counsel would submit that the Senior Civil Judge
entertained the Succession O.P as a delegate of District Judge
by virtue of the powers conferred by the High Court under
ROC No.40/SO/72.1 and ROC No.40/SO/72.2 and therefore,  
the order passed by the Senior Civil Judge shall be deemed to
have been passed by the District Court and by virtue of Section
384 of the Indian Succession Act, an appeal shall lie to the High
Court from an order of a District Judge whether granting or
refusing or revoking a succession certificate and hence the
appeal filed before the High Court is legally maintainable.
5)      As per Section 371 of the Indian Succession Act, the
District Judge within whose jurisdiction the deceased ordinarily
resided at the time of his death or, if at the time he had no fixed
place of his residence, the District Judge within whose
jurisdiction any part of the property of the deceased may be
found, may grant a succession certificate.  As per Section 2 (bb)
of the said Act, the District Judge means the Judge of a
Principal Civil Court of original jurisdiction.  Hence, at the
inception of the Act, the Judge of a Principal Civil Court of
original jurisdiction alone was vested with the power to grant
succession certificate under Section 371 of the Act.
6)      Be that as it may, the High Court under the power
conferred under Section 265 of the Act, appointed Subordinate
Judges (now Senior Civil Judges) including the Additional
Judges in City Civil Courts, ex-officio as District delegates under
the Act.  Further, as per ROC No.40/SO/72.2, the High Court,
under Section 19(1) of Andhra Pradesh Civil Courts Act, 1972,
authorized all the subordinate judges to take cognizance of any
of the proceedings under Indian Succession Act, 1925, which
cannot be disposed of by the District delegates.  This aspect has
been clarified by this High Court in CMA No.46 of 2010 dated
20.03.2010.
7)      So, by virtue of the aforesaid conferment of powers, the
Senior Civil Judges also have been entertaining the succession
O.Ps as District delegates. As per Section 384 of the Act, an
appeal shall lie to the High Court from an order of a District
Judge granting, refusing or revoking a succession certificate.
The submission of learned counsel for appellant is that since
the Senior Civil Judges have been issuing the succession
certificates in the capacity as delegates to the District Judge,
the orders passed by them shall be deemed to have been passed
by the District Judge and hence the appeal against such order
shall lie before the High Court alone under Section 384 of the
Indian succession Act.
8)      The above argument though apparently sounds valid but
the same cannot be accepted for the following reasons.
a)      Following the letter Roc No.408/SO-3/2009, dated
01.11.2011 of the Registrar General, Andhra Pradesh High
Court, Hyderabad, the Government of Andhra Pradesh issued
G.O.Ms.No.11 dated 08.02.2012, which reads thus:
ORDER:
      The Registrar General, High Court of Andhra
Pradesh, Hyderabad, in his letter read above, has
forwarded the Draft Notification with regard to the
Conferment of powers on Senior Civil Judge Courts to
entertain Original Petitions filed under the Indian
Succession Act, 1925.
2.      The Government after careful examination of the
matter have decided to approve the Draft Notification
with regard to the Conferment of powers on Senior Civil
Judge Courts to entertain Original Petitions filed under
the Indian Succession Act, 1925.
3.      Accordingly, the following Notification will be
published in an Extraordinary issue of the Andhra
Pradesh Gazette.
NOTIFICATION  
      In exercise of the powers conferred by sub-section
(1) of section 388 of the Indian Succession Act, 1925
(Central Act 39 of 1925) and of all other powers here
unto enabling the Governor of Andhra Pradesh hereby
confers powers on all the Principal Senior Civil Judges,
where there are more than one Senior Civil Judges Court
and Senior Civil Judges Court where only one Court is
functioning at such station to entertain original petitions
filed under the Indian Succession Act, 1925 and shall
exercise the functions of District Judge under Part-X of
the said Act within their respective jurisdictions.
        So, by virtue of above G.O. the Government in
concurrence with the High Court of Andhra Pradesh, by virtue
of the powers conferred under Section 388(1) of Indian
Succession Act, 1925, have issued notification conferring
powers on all the Senior Civil Judges to entertain original
petitions filed under Indian Succession Act, 1925 and to
exercise the functions of District Judge under Part-X of the said
Act within their respective jurisdictions.
        For convenience, Section 388 of Indian Succession Act is
extract below:
388. Investiture of inferior courts with jurisdiction
of District Court for purposes of this Act:
(1) The State Government may by notification in the
Official Gazette, invest any Court inferior in grade to a
District Judge with power to exercise the functions of a
District Judge under this Part.
(2) Any inferior Court so invested shall, within the local
limits of its jurisdiction, have concurrent jurisdiction
with the District Judge in the exercise of all the powers
conferred by this Part upon the District Judge, and the
provisions of this Part relating to the District Judge shall
apply to such an inferior Court as if it were a District
Judge:
      Provided that an appeal from any such order of an
inferior Court as is mentioned in sub-section (1) of
section 384 shall lie to the District Judge, and not to the
High Court, and that the District Judge may, if he thinks
fit, by his order on the appeal, make any such
declaration and direction as that sub-section authorises
the High Court to make by its order on an appeal from
an order of a District Judge.
(3) An order of a District Judge on an appeal from an
order of an inferior Court under the last foregoing sub-
section shall, subject to the provisions as to reference to
and revision by the High Court and as to review of
judgment of the Code of Civil Procedure, 1908 (5 of
1908), as applied by section 141 of that Code, be final.
(4) The District Judge may withdraw any proceedings
under this Part from an inferior Court, and may either
himself dispose of them or transfer them to another such
Court established within the local limits of the
jurisdiction of the District Judge and having authority to
dispose of the proceedings.
(5) A notification under sub-section (1) may specify any
inferior Court specially or any class of such Courts in
any local area.
(6) Any Civil Court which for any of the purposes of any
enactment is subordinate to, or subject to the control of,
a District Judge shall, for the purposes of this section, be
deemed to be a Court inferior in grade to a District
Judge.
        So, proviso to sub-section (2) specifically lays down that
an appeal from any order of an inferior Court as mentioned in
sub-section (1) shall lie to the District Judge and not to the
High Court.
        In view of the specific provision which creates forum for
appeal which is the District Court in the instant case, the
submission of learned counsel that the appeal shall lie before
the High Court cannot be accepted.
b)      For another reason also his argument does not hold water.
Section 384 of Indian Succession Act which speaks of appeal
reads thus:
384. Appeal. 
(1) 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 the District
judge, on application being made therefor, to grant it
accordingly, in supersession of the certificate, if any,
already granted.
(2) An appeal under sub-section (1) must be preferred
within the time allowed for an appeal under the Code of
Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the
provisions as to reference to and revision by the High
Court and as to review of judgment of the Code of Civil
Procedure, 1908 (5 of 1908), as applied by section 141 of
that Code, an order of a District Judge under this Part
shall be final.
        The above section no doubt lays down that against the
order of a District Judge granting, refusing or revoking a
certificate under Part-X of Indian Succession Act, an appeal
shall lie to the High Court. However, Section 384 is subject to
the other provisions of Part-X which means the said section is
subject to Section 388 as per which, against the order passed
by an inferior Court, an appeal shall lie before the District
Judge and not before the High Court.
9)      For the above reasons, the office objection is found valid
and hence sustained. The office is directed to return the CMA to
the appellant for filing before an appropriate Court.
10)     The Registry is directed to verify and if found, return the
appeals pending before the High Court against the orders
passed by the Senior Civil Judge under Indian Succession Act,
to the concerned District Courts for adjudication.

__________________________  
SURESH KUMAR KAIT, J    
___________________________    
U.DURGA PRASAD RAO, J    
Date: 15.02.2017

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.