* THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
* THE HON’BLE SRI JUSTICE S.V.BHATT
+ C.M.A.No.1064 of 2010
% 16.04.2013
# C. Ramya Bala .. Appellant
And
$ Ch. Jayaram & others .. Respondents
! Counsel for the appellant : Sri T.S.Venkata Ramana
Counsel for respondents : Ms. S. Vani
< Gist :
> Head Note :
? Citations:
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V.BHATT
C.M.A.No.1064 of 2010
JUDGMENT : (Per Hon’ble Sri Justice L. Narasimha Reddy)
An important question arises for consideration in this miscellaneous appeal filed under Section 384 of the Indian Succession Act (for short ‘the Act’). It is as to
whether in an O.P., filed under Section 372 of the Act, the Court can pronounce upon the validity of a Will said to have been executed by the deceased in respect of movable properties as well as immovable properties.
The facts that gave rise to the filing of this appeal are as under:
The appellant is the daughter of late Ch. Srinivasa Sastry. There were disputes between the mother of the appellant on the one hand and Srinivasa Sastry on the other and the marriage between them was also dissolved and permanent alimony was also granted.
The 1st respondent is the brother and the 2nd respondent is the sister of Srinivasa Sastry. He died on 07-12-2005. Stating that Sri Srinivasa Sastry executed a Will, dated 21-11-2005, bequeathing his movable and immovable properties mentioned therein in their favour, respondents 1 and 2 (for short ‘the respondents’) filed O.P.No.1333 of 2007 before the II Additional Chief Judge, City Civil Court, Hyderabad. Their claim was restricted to the items of movable properties, namely provident fund, gratuity, leave encashment. The appellant herein was shown as respondent No.3 and the employer of the deceased i.e., respondents 3 and 4 herein, were impleaded as respondents 1 and 2 in the O.P. The appellant alone contested the O.P. by filing a counter. It is stated that she does not have any objection as regards the Will. The trial Court allowed the O.P., as prayed for through its order, dated 19.10.2010. Hence, this appeal.
Sri T.S.Venkata Ramana, learned counsel for the appellant, submits that the Will said to have been executed by late SrinivasaSastry was in respect of movable and immovable properties and the trial Court has no jurisdiction to pronounce upon it in an O.P. filed under Section 374 of the Act. He submits that the sole basis for the respondents to claim succession in respect of the amounts was the Will. The O.P. ought to have been dismissed, leaving it open to them to work out their remedies before an appropriate forum.
Ms. S.Vani, learned counsel for the respondents, on the other hand, submits that the appellant did not raise any objection as to the validity of the Will and in that view of the matter, the appeal itself is untenable. She contends that once the appellant has expressed her view that she would respect the wish of her father, there is no way that she could have resisted the disposition under the Will.
The O.P. was filed by the respondents in respect of certain monetary benefits, which accrued to late Srinivasa Sastry on account of his employment in the Government. Their sole basis was the Will.
Taking into account the pleadings before it, the trial Court framed only one point for its consideration, namely
whether the Will Deed, dated 21-11-2005, alleged to have been executed by late Srinivasa Sastry is true, valid and binding on the third respondent?
If so, whether the petitioners are entitled for succession certificate?
On behalf of the respondents, PWs.1 and 2 were examined and Exs.A1 to A4 were marked. On behalf of the appellant, RWs.1 and 2 were examined and no documentary evidence was filed.
The trial Court allowed the O.P., as prayed for.
The question that arises before us is as to
whether it was competent for the Court to pronounce upon the legality or proof of Will, dated 21-11-2005 ?
The Act provides for adjudication of the disputes of various kinds pertaining to the claims based upon testate and intestate succession.
The facility of execution of a Will is created not only in respect of any items of movable, but also immovable properties.
However, a dichotomy is maintained as to the adjudication of the claims in respect of movable properties on the one hand and immovable properties on the other.
Sections 370 and 372 of Part-X of the Act provide for grant of Succession Certificate in respect of movable properties, which are enlisted in sub-section (2) of Section 370.
The mechanism provided for under Part-X cannot at all be pressed into service for adjudication of rights in respect of immovable properties.
It is true that in the instant case, respondents 1 and 2 did not make any claim vis-à-vis an item of immovable property.
However, their sole basis was the Will dated 21-11-2005 marked as Ex.A.2.
If Ex.A.2 were to have been in respect of a movable property alone, the trial Court would have been certainly competent to pronounce upon the validity of a Will.
However, a perusal of Ex.A.2 discloses that the testator has bequeathed an item of immovable property, namely plot No.42 in Sy.No.192 of Kondapur village, in favour of the respondents in equal shares.
Once that is so, the proof or otherwise of Ex.A.2 cannot at all be pronounced upon by the trial Court.
This is so, notwithstanding the weak resistance that was offered by the appellant.
The reason is that a Court cannot be conferred with the jurisdiction even with the consent of the parties, if it otherwise lacks jurisdiction.
One complication that arises on account of such an adjudication would be that as and when any claim is laid in respect of immovable property before a different Court, the necessity to pronounce upon Ex.A2 would arise once again and the adjudication and the findings recorded in an O.P. filed under Section 372 of the Act cannot be treated as final, much less binding on such proceedings.
Hence, we allow the appeal and set aside the order passed by the trial Court. It is however, left open to the parties to work out their remedies in accordance with law.
The miscellaneous petition filed in this appeal shall also stand disposed of. There shall be no order as to costs.
_______________________
L. NARASIMHA REDDY, J.
_______________________
S.V.BHATT, J.
Dt:16.04.2013
Note : L.R. Copy to be marked
(B/o)
rds
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